                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 07-15


ROGER M. BLAKENEY,

                Petitioner – Appellant,

           v.

GERALD J. BRANKER, Warden, Central Prison, Raleigh, North
Carolina,

                Respondent – Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:05-cv-00010-RLV)


Argued:   September 23, 2008                 Decided:   March 5, 2009


Before MICHAEL, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished opinion. Judge King wrote the opinion,
in which Judge Michael joined.    Judge Gregory wrote a separate
opinion concurring in part and dissenting in part.


ARGUED:    Burton Craige, PATTERSON HARKAVY, L.L.P., Raleigh,
North Carolina, for Appellant.      Edwin William Welch, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Jeffrey P. Bloom, Columbia, South Carolina,
for Appellant.    Roy Cooper, North Carolina Attorney General,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
KING, Circuit Judge:

     Roger M. Blakeney (“Blakeney” or “defendant”) appeals the

district court’s denial of his federal habeas corpus petition,

by which he seeks to have his North Carolina convictions and

death   sentence   vacated    for    alleged    constitutional       violations.

Blakeney    contends   that    the     district    court     erred    in    three

respects:    (1) in denying him relief on the claim that his trial

counsel     rendered   ineffective          assistance     during     sentencing

proceedings; (2) in denying him relief on the claim that the

prosecution withheld exculpatory evidence; and (3) by rejecting

his request for an evidentiary hearing on the claim that his

trial counsel was ineffective in failing to adequately challenge

the racial composition of the jury.             As explained below, we are

constrained to affirm.



                                       I.

                                       A.

     The pertinent details of Blakeney’s state trial and the

factual    predicate   for    his    prosecution    were    outlined       by   the

Supreme Court of North Carolina on direct appeal, as follows:

          On 13 May 1996 defendant Roger McKinley Blakeney
     (defendant) was indicted for the first-degree murder
     of Callie Washington Huntley (the victim).  Defendant
     was also indicted for arson, common law robbery,
     felonious breaking and entering, felonious larceny,
     and felonious possession of stolen goods.   Defendant
     was tried capitally at the 25 August 1997 Criminal

                                       2
Session of Superior Court, Union County. At the close
of the evidence, the state voluntarily dismissed the
larceny charge.   In addition, the charge of felonious
possession of stolen goods was not submitted to the
jury. The jury found defendant guilty of first-degree
murder on the basis of malice, premeditation, and
deliberation and under the felony murder rule.       The
jury also found defendant guilty of first-degree
arson, common law robbery, and felonious breaking and
entering.   Following a capital sentencing proceeding,
the jury recommended a sentence of death for the
first-degree murder conviction, and the trial court
entered    judgment     in    accordance    with    that
recommendation.      The   trial   court also    entered
judgments sentencing defendant to consecutive terms of
imprisonment for the remaining convictions.

     The state presented evidence at trial which is
summarized as follows: On 15 April 1996, between the
hours of 10:00 a.m. and 12:00 noon, defendant, age
thirty-three, opened and crawled through a back window
in his mother’s home for the purpose of stealing
something of value that he could sell.       Defendant
stole three of his mother’s rings, a brown leather
pouch,   approximately   $4.00  in   change,  a  small
herringbone chain, and his mother’s savings account
deposit book.   Defendant then telephoned his wife and
told her he would be home in a few minutes.

     After defendant finished speaking with his wife,
the victim, age seventy-six, drove behind the house.
The victim had lived with defendant’s mother for over
twenty years.   Defendant hid in a small room behind
the refrigerator as the victim entered the residence.
According   to  defendant’s   confession,   which  was
admitted into evidence at trial, defendant entered the
kitchen, and the two began arguing.     Defendant told
authorities that he turned to leave, but the victim
grabbed him. Defendant charged at the victim, grabbed
and wrestled a .22-caliber revolver out of the
victim’s hand, and hit the victim in the back of the
head with the butt of the gun.        The victim fell
facedown on the kitchen floor and started bleeding.
According to defendant, after some additional period
of physical struggle, a metal can of kerosene was
accidentally spilled.   Defendant also claimed that a
cigarette he was smoking fell out of his mouth at some

                           3
time during the struggle.   According to defendant, at
some point, he pulled the victim off the floor, sat
him in a chair, and wrapped an electrical cord around
his hands and legs.     Defendant then removed $78.00
from the victim’s wallet, exited the residence, and
departed the area in defendant’s vehicle.

     Terry    Lee    Bivens    (Bivens),    defendant’s
longstanding friend, worked at a nearby business and
observed defendant departing his mother’s residence on
the day in question.     Bivens recognized defendant’s
vehicle.   Seconds later, Bivens noticed smoke coming
from the residence.        Bivens and several other
witnesses looked on as the house began to burn.

     Firefighters arrived at the scene and discovered
the victim’s wire-bound body as they fought the fire.
Agent Van Worth Shaw, Jr. (Agent Shaw), an arson
investigator for the State Bureau of Investigation
(SBI), determined that the fire had two distinct
points of origin and was caused by the use of a
flammable   liquid.     In   contrast   to  defendant’s
statement, all accidental causes were eliminated
during the investigation, and Agent Shaw opined that
the fire was intentionally set.       The investigation
revealed traces of kerosene on samples taken from the
couch in the den and on the victim’s clothing.

      Dr. Robert Thompson, a forensic pathologist with
the Office of the Chief Medical Examiner, performed an
autopsy on the victim’s body.     The autopsy revealed
that seventy-five percent of the victim’s skin was
charred.   Dr. Thompson also observed that the victim
had received a wound to the back and a wound to the
left temporal area of the head, which resulted in
injury to the brain.     Dr. Thompson opined that the
victim was conscious for approximately three to five
minutes after the fire started, that the victim died
within approximately ten minutes, and that the cause
of death was carbon monoxide poisoning produced by the
fire.

     On 16 April 1996 law enforcement officers located
defendant at a friend’s residence, sitting in the
passenger seat of his vehicle. Defendant consented to
a search of his vehicle, where the officers found his
mother’s stolen jewelry, leather pouch, and savings

                          4
     deposit   book  in   the   glove   compartment.     The
     authorities later recovered the .22-caliber revolver
     that defendant had taken from the victim.     Defendant
     had exchanged the gun for a loan.     The investigation
     also revealed that bloodstains found on defendant’s
     clothing were consistent with the victim’s blood.

          Defendant did not present        evidence      during   the
     guilt-innocence phase of trial.

State v. Blakeney, 531 S.E.2d 799, 806-08 (N.C. 2000). 1          Specific

to   the   trial’s   sentencing   phase,   the   state    supreme       court

observed that

     the   state  presented  evidence  of,  and  defendant
     stipulated to, one conviction for robbery with a
     dangerous weapon. The state’s evidence tended to show
     that, in 1989, defendant robbed a grocery store and
     struck the store owner in the back of the head with a


     1
        The state supreme court provided further details of the
murder and its aftermath, as follows:

     defendant telephoned his wife from his mother’s
     residence, before the victim arrived, and informed her
     he would be home “in a few minutes.”         The record
     reveals, however, that defendant did not return home
     as planned.   Rather, defendant ran from the scene of
     the crime and departed the area in his vehicle.     One
     of defendant’s longstanding friends waved at him, but
     defendant did not respond.    After departing the area,
     defendant drove to “[Emanuel Blackman’s] shack out in
     the country,” where he traded the victim’s gun for
     cocaine and twenty dollars in cash.      Defendant then
     continued to drive through the country, stopping in
     Pageland, South Carolina, where he traded more stolen
     items for drugs.       Rather than return home, as
     originally intended, defendant then went to Kenneth
     Funderburk’s house and remained there overnight.    Law
     enforcement officers apprehended defendant at this
     residence the next afternoon.

Blakeney, 531 S.E.2d at 819 (alteration in original).



                                   5
     gun.   Evidence at trial also indicated that defendant
     had a history of drug abuse.

                               * * *

          [In considering the death penalty on the first-
     degree murder conviction,] [t]he jury found four
     aggravating circumstances:    (1) defendant had been
     previously convicted of a felony involving the use of
     violence to the person, N.C.G.S. § 15A-2000(e)(3); (2)
     the murder was committed while defendant was engaged
     in the commission of first-degree arson, N.C.G.S.
     § 15A-2000(e)(5); (3) the murder was committed for
     pecuniary gain, N.C.G.S. § 15A-2000(e)(6); and (4) the
     murder was especially heinous, atrocious, or cruel,
     N.C.G.S. § 15A-2000(e)(9).

          Of the eight mitigating circumstances submitted,
     one or more jurors found the following: (1) defendant
     grew   up    in   very   unfortunate    and  difficult
     circumstances in that he grew up in a physical and
     psychological environment which significantly retarded
     the proper development of his character and functional
     abilities; (2) defendant’s father was absent from the
     home since defendant was two or three years old; and
     (3) defendant’s mother was in and out of the home and
     involved in an alcoholic and verbally and sometimes
     physically abusive relationship with Mr. Huntley, the
     victim here, which the defendant witnessed.

Id. at 821, 824-25.   On July 13, 2000, in his direct appeal, the

state supreme court affirmed Blakeney’s convictions and death

sentence.   See id. at 826.   Thereafter, on January 16, 2001, the

Supreme Court of the United States denied Blakeney’s petition

for a writ of certiorari.     See Blakeney v. North Carolina, 121

S. Ct. 868 (2001).

                                B.

     Blakeney filed a motion for appropriate relief (the “MAR”)

in the state superior court (the “MAR court”) on November 16,

                                 6
2001, and amended the MAR on February 5, 2003, raising a total

of seven issues.          By its Order of June 5, 2003, the MAR court,

in relevant part, deferred ruling on Blakeney’s claims that his

trial counsel had rendered ineffective assistance at sentencing

(the       “ineffective    assistance/sentencing   claim”)   and   that   the

prosecution       had     withheld   various   exculpatory   evidence     (the

“original exculpatory evidence claim”).            See State v. Blakeney,

No. 96 CRS 4774-4777 (N.C. Super. Ct. June 5, 2003) (the “First

MAR Order”). 2      Also by the First MAR Order, the court rejected as

procedurally barred the claim that Blakeney, who is African-

American, had been unconstitutionally tried by an all-white jury

(the “substantive jury composition claim”).

       In the meantime, on May 9, 2003, Blakeney had amended his

MAR for a second time, raising the claim that his trial counsel

had rendered ineffective assistance by failing to object to the

racial composition of the jury (the “ineffective assistance/jury

composition claim”).         By its Order of November 12, 2003, the MAR

court rejected the ineffective assistance/jury composition claim

as both procedurally barred and without substantive merit.                 See




       2
        The First MAR Order is found at J.A. 847-933. (Citations
herein to “J.A.    ” refer to the contents of the Joint Appendix
filed by the parties in this appeal.)



                                        7
State v. Blakeney, No. 96 CRS 4774-4777 (N.C. Super. Ct. Nov.

12, 2003) (the “Second MAR Order”). 3

      In January 2004, the MAR court conducted an evidentiary

hearing       (the     “MAR      hearing”)      on    Blakeney’s         ineffective

assistance/sentencing claim, as well as his original exculpatory

evidence     claim.      At   that    time,     Blakeney    filed    a    motion   to

reconsider the MAR court’s prior rulings on his substantive jury

composition and ineffective assistance/jury composition claims,

which the court denied from the bench.                     On April 30, 2004,

Blakeney amended his MAR for the last time to conform with the

MAR   hearing        evidence,    asserting      that     the   prosecution        had

withheld exculpatory evidence (the “exculpatory evidence claim”)

beyond that complained of in his original exculpatory evidence

claim. 4     By its Order and Memorandum Opinion of May 21, 2004, the

MAR       court   rejected,       inter       alia,     Blakeney’s       ineffective

assistance/sentencing and exculpatory evidence claims as lacking

substantive merit and being, in part, procedurally barred.                         See




      3
           The Second MAR Order is found at J.A. 934-64.
      4
         Blakeney has since abandoned his original exculpatory
evidence claim, but the claim asserted in the amended MAR of
April 30, 2004, which we refer to as the “exculpatory evidence
claim,” is now before us.



                                          8
State v. Blakeney, No. 96 CRS 4774-4777 (N.C. Super. Ct. May 21,

2004) (the “Third MAR Order”). 5

        The   state   supreme    court,    by       Order    of   December     2,    2004,

denied Blakeney’s subsequent petition for a writ of certiorari.

See State v. Blakeney, 607 S.E.2d 650 (N.C. 2004).

                                          C.

     On January 31, 2005, Blakeney filed a petition for federal

habeas    corpus      relief,   pursuant       to    28     U.S.C.    § 2254,      in    the

Western District of North Carolina.                   In his petition, Blakeney

raised         twenty-one       issues,        including          his        ineffective

assistance/sentencing,          exculpatory         evidence,        substantive        jury

composition, and ineffective assistance/jury composition claims.

In response, the State filed an answer and a motion for summary

judgment.       Thereafter, Blakeney responded to the State’s summary

judgment motion, and filed his own summary judgment motion, a

motion for discovery, and a motion for an evidentiary hearing.

After    the    parties     submitted     further      memoranda        on   the    cross-

motions       for   summary   judgment,     the      district     court      issued      its

Order of May 3, 2007, denying Blakeney’s habeas corpus petition,

summary       judgment    motion,   and    motions          for   discovery        and    an

evidentiary hearing, and granting the State’s summary judgment




     5
          The Third MAR Order is found at J.A. 2158-2300.



                                           9
motion.       See Blakeney v. Lee, No. 3:05-cv-00010 (W.D.N.C. May 3,

2007) (the “Habeas Corpus Order”). 6

       Blakeney timely filed a motion to alter or amend judgment

and    for    relief       from    judgment          under    Federal    Rules       of     Civil

Procedure 59(e) and 60(b), which the district court treated as a

Rule       59(e)       motion    seeking        to     relitigate     its      rejection      of

Blakeney’s          ineffective         assistance/sentencing            and       exculpatory

evidence claims, and to challenge the denial of an evidentiary

hearing       on    his    substantive         jury     composition      and       ineffective

assistance/jury composition claims.                          By its Order of June 11,

2007,      the     court       concluded       that,    with    respect       to    Blakeney’s

ineffective            assistance/sentencing             and     exculpatory          evidence

claims,       his       Rule    59(e)     motion        constituted      an     unauthorized

successive application for federal habeas corpus relief under 28

U.S.C.       § 2244(b).           See    Blakeney        v.    Lee,   No.      3:05-cv-00010

(W.D.N.C. June 11, 2007) (the “First Rule 59(e) Order”). 7                                In its

First Rule 59(e) Order, however, the court further observed that

Blakeney         had    properly        made    in     his     Rule   59(e)        motion    the

contention that he was erroneously denied an evidentiary hearing

on      his        substantive          jury         composition        and        ineffective

assistance/jury composition claims.                       Accordingly, invoking this

       6
            The Habeas Corpus Order is found at J.A. 2954-3079.
       7
            The First Rule 59(e) Order is found at J.A. 3096-98.



                                                 10
Court’s      precedent,       the     court   gave       Blakeney      “the   options   of

deleting the claims subject to the requirements of successive

petitions or having his entire Rule 59(e) Motion treated as a

successive application for habeas relief.”                             First Rule 59(e)

Order 5-6 (citing United States v. Winestock, 340 F.3d 200 (4th

Cir. 2003)).

       In     accordance       with    the     district      court’s      instructions,

Blakeney promptly filed a motion to amend his Rule 59(e) motion,

in which he opted to withdraw his contentions with respect to

his ineffective assistance/sentencing and exculpatory evidence

claims.        By    its     Order    of   July     9,    2007,   the     court   granted

Blakeney’s motion to amend his Rule 59(e) motion, but rejected

on the merits Blakeney’s remaining contention that he had been

erroneously         denied    an    evidentiary         hearing   on    his   substantive

jury       composition       and    ineffective         assistance/jury       composition

claims.       See Blakeney v. Lee, No. 3:05-cv-00010 (W.D.N.C. July

9, 2007) (the “Second Rule 59(e) Order”). 8

       On August 7, 2007, Blakeney timely noted this appeal.                            On

October 22, 2007, the district court granted a certificate of

appealability           (the         “COA”)        on      Blakeney’s         ineffective

assistance/sentencing claim.               On March 10, 2008, we expanded the

COA to include Blakeney’s exculpatory evidence claim, as well as

       8
            The Second Rule 59(e) Order is found at J.A. 3104-06.



                                              11
the contention that the district court should have granted him

an    evidentiary      hearing           on    his     ineffective     assistance/jury

composition       claim. 9        We     possess     jurisdiction      over   Blakeney’s

appeal pursuant to 28 U.S.C. §§ 1291 and 2253.



                                               II.

      We    review    de     novo       a    district    court’s   denial     of   habeas

corpus relief on the basis of a state court record.                           See Tucker

v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003).                           Insofar as the

MAR court adjudicated Blakeney’s habeas corpus claims on the

merits, its decision is entitled to deference pursuant to the

1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”).

See 28 U.S.C. § 2254(d).                    AEDPA mandates the use of a two-step

analysis     to    assess         whether      a     habeas   corpus    petitioner        is

entitled to relief.               Under the first step of the analysis, we

may award relief only if (1) the state court adjudication of the

issue on its merits “resulted in a decision that was contrary

to,    or    involved        an        unreasonable      application      of,      clearly

established Federal law, as determined by the Supreme Court of

the   United      States”;        or    (2)    the    adjudication     “resulted     in    a

decision that was based on an unreasonable determination of the


      9
        Blakeney has abandoned all contentions with respect to
his substantive jury composition claim.



                                               12
facts in light of the evidence presented in the State court

proceeding.”       Id.     And, even if error is identified, habeas

corpus relief can only be granted, under the second step of the

AEDPA analysis, if the error had a “substantial and injurious

effect or influence in determining the jury’s verdict.”                     Brecht

v. Abrahmson, 507 U.S. 619, 637 (1993) (internal quotation marks

omitted).      The state court’s factual determinations are presumed

to be correct and may be rebutted only by clear and convincing

evidence.      See 28 U.S.C. § 2254(e)(1).

       We are barred from conducting habeas corpus review “of a

state prisoner’s claims that are procedurally defaulted under

independent and adequate state procedural rules . . . unless the

prisoner can show cause for the default and demonstrate actual

prejudice as a result of the alleged violation of federal law,

or prove that failure to consider the claims will result in a

fundamental miscarriage of justice.”                Lawrence v. Branker, 517

F.3d    700,    714     (4th    Cir.    2008)    (internal      quotation    marks

omitted).         “A    state    rule    is     adequate   if    it   is    firmly

established, and regularly and consistently applied by the state

court.”   Id. (internal quotation marks omitted).

       Finally,    we    review    a    district     court’s     denial     of   an

evidentiary hearing for abuse of discretion.                    See Robinson v.

Polk, 438 F.3d 350, 367 (4th Cir. 2006).



                                         13
                                             III.

       On appeal, Blakeney’s COA authorizes him to contend that

the district court erred in three respects — in denying him

relief        on     his      ineffective       assistance/sentencing            claim,        in

denying him relief on his exculpatory evidence claim, and by

rejecting          his     request    for       an    evidentiary       hearing        on     his

ineffective assistance/jury composition claim.                           We assess these

contentions in turn.

                                                A.

       The ineffective assistance/sentencing claim essentially has

two aspects:             first, whether trial counsel rendered ineffective

assistance by failing to collect relevant records and provide

them     to    Blakeney’s         expert     psychologist         for     the    sentencing

proceedings (the “expert witness aspect”); and second, whether

counsel        was       ineffective       in        failing     to   conduct         pretrial

interviews of, and then to call as character witnesses, several

of Blakeney’s family members and acquaintances (the “character

witness       aspect”).           Blakeney       contends      that     the     MAR    court’s

adjudication on the merits of both aspects of his ineffective

assistance/sentencing             claim     “resulted       in   a    decision        that   was

contrary       to,       or    involved     an       unreasonable       application          of,”

Supreme       Court      precedent.        28    U.S.C.     § 2254(d).          The    Supreme

Court explained in Williams v. Taylor that,



                                                14
     [u]nder the “contrary to” clause, a federal habeas
     court may grant the writ if the state court arrives at
     a conclusion opposite to that reached by [the Supreme]
     Court on a question of law . . . .           Under the
     “unreasonable application” clause, a federal habeas
     court may grant the writ if the state court identifies
     the correct governing legal principle from [the]
     Court’s   decisions  but   unreasonably  applies  that
     principle to the facts of the prisoner’s case.

529 U.S. 362, 412-13 (2000).

    Here, as recognized by the district court, the MAR court

correctly    identified     the    controlling          Supreme       Court   precedent,

including     the     Court’s     seminal        decision        in     Strickland         v.

Washington,     466     U.S.      668,     687     (1984)        (recognizing            that

ineffective     assistance        claim        requires      showing          (1)     “that

counsel’s     performance       was      deficient,”        and       (2)     “that       the

deficient    performance       prejudiced        the    defense”).            See    Habeas

Corpus Order 8.       Accordingly, the relevant issue is whether the

MAR court unreasonably applied that precedent to the facts of

Blakeney’s     case    —    that      is,      “whether      the        state       court’s

application of clearly established federal law was objectively

unreasonable.”       Williams, 529 U.S. at 409.              We assess such issue

beginning     with    the   expert       witness       aspect,    followed          by    the

character        witness          aspect,              of     the             ineffective

assistance/sentencing claim.

                                          1.

                                          a.



                                          15
        The MAR court concluded that the expert witness aspect of

Blakeney’s        ineffective        assistance/sentencing        claim    failed    on

both the performance and the prejudice prongs of the Strickland

test.        See Third MAR Order 89.               In adjudicating the expert

witness aspect, the MAR court provided an extensive discussion

of the relevant evidence in the MAR hearing record, but largely

abstained from explicitly resolving disputed issues of fact and

making credibility determinations.                The court observed, however,

that “the evidence before [it] shows that all of this claim is

without merit.”           Id.   The court also invoked various authorities

applying Strickland and its Supreme Court progeny to justify the

rejection of Blakeney’s “claim[] of prejudicial error.”                        Id. at

33.     Although the precise reason for the court’s decision is not

entirely clear, we must deem the decision to be reasonable if it

“is     at    least       minimally      consistent        with     the    facts    and

circumstances of the case.”               Wright v. Angelone, 151 F.3d 151,

157 (4th Cir. 1998) (internal quotation marks omitted).

                                           i.

        According to the MAR court, Blakeney’s “experienced trial

counsel”      —    lead    counsel     Robert    Huffman    and   co-counsel       Harry

Crow, Jr. — retained Dr. Mark Worthen, an expert in clinical and

forensic      psychology,       to    evaluate   Blakeney     for    the   sentencing

phase of the trial.             See Third MAR Order 10, 89, 91.               Worthen

produced a seventeen-page Forensic Psychological Evaluation (the

                                           16
“Expert Report”), dated August 28, 1997, which was incorporated

by reference as part of the Third MAR Order. 10                               The purpose of

Worthen’s evaluation, according to the Expert Report, was “to

describe         Mr.    Blakeney’s       psychological             functioning     during    the

time        of    the     alleged       offenses;           to    provide     a    social    and

psychological            history;       to       list       any        relevant    psychiatric

diagnoses; and to comment on his propensity for violence within

the correctional system.”                    Expert Report 1.                For the Expert

Report,          Worthen       relied       on     psychological           testing     of    and

interviews with Blakeney, discussions with some of Blakeney’s

family members, and certain records provided by trial counsel

and obtained by Worthen himself.                        See Third MAR Order 105-06;

Expert Report 2.

       Trial       counsel       obtained         school         and     prison    records     on

Blakeney, and they provided those records to Dr. Worthen, along

with police statements and reports about the Huntley murder.

See Third MAR Order 89, 92.                      The prison records, from the North

Carolina         Department       of        Correction,           related     to     Blakeney’s

imprisonment            from   1990    to    1995      on    the    prior    robbery    with   a

dangerous weapon offense.                   See Expert Report 17.             Lawyer Huffman

advised Worthen that “‘if you need anything else, please let me




       10
              The Expert Report is found at J.A. 2307-23.



                                                  17
know.’”    See Third MAR Order 89 (quoting J.A. 1182). 11                             When

Worthen    did    not        follow    up   with     any     requests      for   further

information, Huffman presumed that Worthen was satisfied with

what had been provided.           See id.

      Dr. Worthen obtained records, on his own initiative, from

the   Union      County       Mental    Health      Center    upon      learning      from

Blakeney that he had also been seen there.                     See Third MAR Order

92.    According to the Expert Report, those records reflected

that Blakeney had sought treatment for substance abuse from the

Union County Mental Health Center in September 1995, after being

released from prison.             See Expert Report 6.            The records also

reflect    that,        at     that     time,      Blakeney     was     “anxious       and

depressed,”       and     he    was     diagnosed     with     dependence        on    and

withdrawal from cocaine and alcohol.                 Id. at 6-7.

      Dr. Worthen was unable to obtain records from the North

Carolina      Department        of     Correction      relating       to     Blakeney’s

reported   participation          in    a   drug    and    alcohol      rehabilitation

treatment (“DART”) program, despite requesting them in two or

three letters and, perhaps, a phone call.                      See Third MAR Order

93.   Trial counsel also made unsuccessful attempts to obtain the

DART records.           See id.        The Expert Report reflects that “Mr.

      11
         Where the MAR court quoted from transcripts of the MAR
hearing, we provide J.A. citations for those portions of the
transcripts.



                                            18
Blakeney      indicated    that    he     participated         in   the    DART      program

through the Department of Correction[] when he was incarcerated

between 1990 and 1995”; that Worthen, “[u]nfortunately, . . .

was not able to obtain records regarding” any such treatment;

and    that   Worthen     was    “not     sure    if    this    indicates       that     Mr.

Blakeney actually never participated in DART or if the records

simply could not be located.”                    Expert Report 6.              As the MAR

court    later     recognized,     there     were       Department        of   Correction

records that, if produced, would have confirmed to Worthen that

Blakeney received “130 hours of instruction” in the DART program

prior to the Huntley murder.               Third MAR Order 94; see also J.A.

1831    (Department       of    Correction        letter       of   March      28,    1994,

reflecting       that   Blakeney    completed          four-week     DART      program   at

Craggy Correctional Center).

       During the trial preparations, “Dr. Worthen met [lawyer]

Crow in person twice, once when they met at Crow’s office and he

interviewed two or three of defendant’s family members, and once

with Huffman and Crow immediately before the sentencing phase of

defendant’s trial.”             Third MAR Order 91.                 The Expert Report

reflects that Worthen met with Blakeney five times, conducted a

series of psychological tests on him, and interviewed three of

his     family    members:         wife     Tiney       Blakeney,         mother     Gracie

Blakeney, and sister Peggy Blakeney.                   See Expert Report 2.



                                           19
     Extensive details of Blakeney’s childhood, education, and

family life are provided in the Expert Report, which reflects,

inter alia, that Blakeney, the youngest of nine children, was

abandoned by his father as a toddler and spent his childhood

living    in    “embarrassing”          and   “terrible”       conditions    in    houses

with no running water or electricity, filled with rats, snakes,

and roaches.          See Expert Report 3.            Blakeney was intermittently

cared for by his older siblings and by his mother Gracie, who

was in and out of the home, being absent more often after she

began dating Huntley when Blakeney was nine or ten years old.

See id.        Gracie Blakeney and Huntley both drank heavily and

frequently        fought,       and      Gracie       “would     alternate        between

neglecting       the    children        and    indulging        [defendant].”           Id.

Blakeney’s       school      performance       was     “below     average,”       and    he

withdrew       from    school      in   the   ninth    grade.       Id.   at      5.     He

thereafter attempted to return to high school three different

times, but “he had to find work in order to survive,” making “it

difficult       for    him    to    stay      in   school      despite    his     several

attempts.”       Id.      Blakeney had six children with five different

women,    including       two      children    with     Tiney    Blakeney,      whom     he

married in February 1996.               See id. at 5-6.          Tiney Blakeney told

Dr. Worthen “that her husband has had problems with alcohol and

other drugs, but she characterized him as a good father who is

able to relate to and discipline the children better than she.”

                                              20
Id. at 6.       Tiney Blakeney also “indicated that she and Mr.

Blakeney had arguments about finances and the fact that he was

spending some of their money on alcohol and other drugs rather

than the family, but she had not contemplated a separation or

divorce.”     Id.

      The    Expert     Report     contains     a        narrative    of    Blakeney’s

description to Dr. Worthen of the events surrounding the Huntley

murder, including Blakeney’s reports of having not slept “for

most of the previous three or four days and nights prior to the

alleged     offense”    and   of      having   consumed          alcohol    and   smoked

marijuana and crack cocaine during that time period.                              Expert

Report 7.      Nevertheless, according to the Expert Report, “Mr.

Blakeney stated that at the time of the alleged offense he was

not intoxicated and he was not feeling particularly bad.”                           Id.

The Expert Report also observes that Blakeney gave a written

statement to police the day after the Huntley murder that did

not include information about his conduct over the days prior to

the murder (including his sleeplessness and substance abuse).

See id. at 9.          With respect to details of the murder itself,

Blakeney’s     description       of    events       to     Dr.    Worthen    “varie[d]

somewhat from that given to law enforcement officers in [the]

written statement,” and Worthen assumed that the statement to

police, being closer in time to the murder, was “more accurate.”

Id.

                                          21
      During a screening test for alcoholism, the Expert Report

reflects, Dr. Worthen “suspect[ed] that Mr. Blakeney tended to

minimize problems associated with alcohol use when answering the

. . . questions.”          Expert Report 10.        Similarly,

      Mr. Blakeney also minimized the extent of his drug
      (including alcohol) use and related problems on . . .
      a substance abuse evaluation instrument.        After
      talking with Mr. Blakeney’s attorney, it became
      apparent that Mr. Blakeney was afraid that if he
      acknowledged his drug use it would somehow hurt his
      case.   After his attorney advised him that it was
      crucial to be open and honest . . . , Mr. Blakeney
      acknowledged that he has had a long term problem with
      crack cocaine and that he has been a regular user of
      alcohol and marijuana.

Id.   On one psychological test, “Mr. Blakeney likely answered

‘true’      to    some      test    items      indicative       of     more    severe

psychopathology than he actually exhibits, either in an attempt

to look more disturbed or as a ‘cry for help.’”                  Id. at 11.

      The    Expert      Report    includes    a    diagnosis     of   “Personality

Disorder, Not Otherwise Specified (Mixed Personality Disorder)

with avoidant, dependent, anti-social, and narcissistic traits,”

as well as cocaine, marijuana, and alcohol dependence.                         Expert

Report 14.        It also observes that “Mr. Blakeney endorsed some

symptoms     of   dependent,       avoidant,    and      anti-social    personality

disorder during [the] interview procedure,” and that his sister

Peggy Blakeney “indicated that she has observed her brother to

exhibit     signs     of     anti-social,      narcissistic,         avoidant,   and

dependent    personality       disorder.”          Id.   at   13-14.     The   Expert

                                         22
Report   concludes    that   “[t]he    substance     abuse    diagnoses     are

relevant” in that “[t]he violence that occurred would not have

taken place had Mr. Blakeney not chosen to seek out more money

for more drugs,” and “[i]t is also likely that Mr. Blakeney’s

rational   judgment    was   impaired,      at    least   slightly,    by   the

chronic use of alcohol and other drugs and the fact that he had

reportedly been awake for most of the previous three days and

nights.”    Id. at 16.       According to the Expert Report, “Mr.

Blakeney presumably did not plan well in advance to kill Mr.

Huntley . . . but when confronted by Mr. Huntley, he reacted.

It was at this time that the poor judgment caused by chronic

drug abuse, and alleged lack of sleep, was a factor.”                 Id.   The

Expert Report acknowledges, however, that there was

      no evidence that Mr. Blakeney was experiencing more
      severe effects of alcohol and other drug abuse such as
      delusions, hallucinations, or perceptual disturbances,
      acute physical withdrawal, or memory blackout at the
      time of the alleged offenses.             Thus, while Mr.
      Blakeney’s    ability    to    adequately     consider  the
      consequences of his actions was impaired to some
      extent,   he   was   not    so   impaired    that   he lost
      significant awareness of his circumstances nor did he
      significantly    lose   his    ability    to   control  his
      behavior.

Id.   With respect to the diagnosis of personality disorder, the

Expert Report opines that such disorder rendered Blakeney “more

vulnerable to the temporary stress-reducing properties of drugs

and consequently, drug addictions,” and that it “also adversely

affected   [Blakeney’s]      ability       to    adequately   consider      the

                                      23
consequences of his actions on others, due to his narcissism and

anti-social        attitudes.”        Id.      at   16-17.       Finally,         the   Expert

Report reflects Dr. Worthen’s opinion — based on Blakeney’s lack

of   “a     past    history     of   violence       in   the    [prison]      setting”     or

“psychopathic personality” — that Blakeney “poses no greater

risk      for   violence      than    the      average    prisoner”         and    does   not

“pose[] an imminent threat to other inmates.”                        Id. at 17.

       In his trial testimony, Dr. Worthen “repeated much of the

information stated in [the Expert Report].”                         Third MAR Order 91.

According to lawyer Crow, he “‘thought Dr. Worthen’s testimony

in court went over fairly well.                     We basically had him go over

the report that he provided in front of the jury and he did a

good job of presenting that information.                        . . .        [H]e did not

give the impression that he had not been adequately prepared.’”

Id. at 89 (quoting J.A. 1159-60). 12

       Thereafter, at the MAR hearing, Blakeney’s post-conviction

counsel      presented     records       not    obtained       by    trial    counsel     nor

provided to Dr. Worthen prior to trial, including the following:

Blakeney’s         DART   and    other      records      from       the   North     Carolina

Department         of   Correction;      state      Division        of    Social    Services

records concerning Blakeney’s wife, Tiney Blakeney; employment


       12
         Our review of Dr. Worthen’s trial testimony confirms
that it closely covered the contents of the Expert Report.



                                               24
records for Blakeney; and records concerning victim Huntley’s

prior    conviction       for   driving       under     the    influence       of    alcohol

(“DUI”).     See Third MAR Order 90.                   Lawyer Huffman acknowledged

during     the    MAR   hearing        that      all   of     these    records,        except

Huntley’s DUI records, “were the types of records he would have

provided    Dr.    Worthen        prior     to     defendant’s        trial    if    he    had

collected them.”          Id.      For his part, Worthen testified at the

MAR hearing that he did not consider it his responsibility to

locate     witnesses       or     to    actively       collect        records,       but    he

acknowledged      there     are    some       instances       when    he    might    send    a

letter   regarding      records        on   the    theory      that    an     agency    would

respond better to a letter from a doctor than an attorney.                                 See

id. at 91-92.       In Blakeney’s case, Dr. Worthen understood that,

in   general,     trial    counsel        would     locate     witnesses       and     obtain

records, although Worthen volunteered to try to obtain records

from the North Carolina Department of Correction and from the

Union County Mental Health Center.                  See id. at 92.

      Dr. Worthen further testified at the MAR hearing that he

had reconsidered his prior diagnosis of Blakeney based on new

information, including the records obtained by Blakeney’s post-

conviction counsel, which they provided to Worthen after the

trial.      See Third MAR Order 92.                    “Specifically, Dr. Worthen

testified:       ‘I would now diagnose the defendant with depressive

disorder not otherwise specified.                      It was not a diagnosis I

                                              25
assigned     at    the    time      and     I    would    not   diagnose   him   with    a

personality disorder, which I did at the time.’”                           Id. (quoting

J.A. 1245).        Additionally, Worthen testified that he “would now

‘render     an    opinion      .    .   .   [t]hat       [defendant]    was   under   the

influence of a mental or emotional disturbance at the time of

the   crime.’”           Id.       (quoting       J.A.    1245-46)     (alterations     in

original).        When asked whether “‘the capacity of the defendant

to appreciate the criminality of his conduct or to conform his

conduct with the requirements of law was impaired,’” Worthen

stated “his opinion that defendant ‘was impaired at the time of

the crime.’”       Id. at 92-93 (quoting J.A. 1246). 13

      Dr.    Worthen      attributed            the   change    in   diagnosis   to   the

following (collectively, the “post-conviction information”):

      ●      His   post-trial   review   of  community   member
             affidavits and interviews with family members
             (including   a   re-interview  of   sister   Peggy
             Blakeney and interviews of four other siblings),
             which indicated “that defendant ‘experienc[ed]
             symptoms of depression prior to the crime,’”
             Third MAR Order 93 (quoting J.A. 1248), and
             “‘exhibited positive character traits which . . .
             would argue against the personality disorder
             diagnosis,’” id. at 96 (quoting J.A. 1267);

      13
          Blakeney contends that Dr. Worthen’s revised opinion
would have supported two statutory mitigating circumstances at
sentencing: (1) that “[t]he capital felony was committed while
the defendant was under the influence of mental or emotional
disturbance,” and (2) that “[t]he capacity of the defendant to
appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was impaired.”    N.C. Gen.
Stat. § 15A-2000(f)(2), (6).



                                                26
    ●    Records from the North Carolina Department of
         Correction, including what Worthen referred to as
         “a previous diagnosis of depression” made while
         Blakeney was incarcerated before the Huntley
         murder, id. at 93;

    ●    The DART records reflecting Blakeney’s 130 hours
         of instruction during his prior incarceration,
         see id. at 93-94; 14

    ●    Additional   Department  of  Correction  records,
         which constituted “‘more substantive evidence . .
         . that [Blakeney] did not exhibit behavior
         problems [while incarcerated], including signs of
         anti-social personality disorder,’” id. at 94
         (quoting J.A. 1253);

    ●    North   Carolina   Division  of   Social   Services
         records concerning problems in Tiney Blakeney’s
         home (including Tiney’s own alcohol abuse), which
         records:   “‘provide[d] information regarding the
         level of [depression-inducing] stress that the
         defendant was under at the time leading up to the
         crime’”;    “‘corroborate[d]    information    from
         [Blakeney’s] family . . . that they were having
         trouble in the home’”; and provided Worthen “‘a
         better      understanding      of      [Blakeney’s]
         psychological condition at the time, and helped
         [him] to put together how [Blakeney’s] substance
         abuse and the depression were interacting to
         cause a deterioration in his functioning,’” id.
         at 94 (quoting J.A. 1254-55); and

    ●    Blakeney’s     employment   records,    providing
         “‘further evidence that although his employment
         history was certainly not perfect, he had sought
         and   obtained   employment after   his  previous

    14
         Dr. Worthen testified that the DART records “to some
extent go[] to the question of whether or not [Blakeney] had a
personality disorder, how truthful he was being,” and that such
records also “demonstrated that he at least had some motivation
to try to overcome his alcohol and other drug problems.”   J.A.
1251.



                              27
            incarceration’” — a fact that “‘goes against the
            . . . impression [Worthen] had at the time [of
            trial]   that  [Blakeney]   was   exhibiting   some
            narcissistic    and     anti-social     personality
            traits,’” id. at 95 (quoting J.A. 1257).

Worthen    testified    that,    if   he    had    been    provided      the     post-

conviction information prior to trial, he “‘would not have come

to that conclusion [i.e., the personality disorder diagnosis],

because    there’s     information     that       would    argue       against     the

diagnosis of a personality disorder.’”               Id. (quoting J.A. 1259).

Worthen explained, inter alia, that he now saw Blakeney’s drug

use “‘as being signs and symptoms of substance dependence itself

and the depressant disorder, and as a reaction to the stress he

was   under,   as   opposed   to   being    symptomatic      of    a    personality

disorder.’”    Id. (quoting J.A. 1259). 15

      Nevertheless, in testifying at the MAR hearing to his new

diagnosis,     “Dr.    Worthen     admitted       that    when    he    interviewed

      15
          According to Worthen, the newly obtained records were
also relevant to him in the following ways:       the additional
Department of Correction Records reflecting Blakeney’s lack of
behavior problems while incarcerated corroborated Worthen’s 1997
trial testimony regarding his opinion about Blakeney’s future
adjustment in prison, see Third MAR Order 94; the employment
records demonstrated that Blakeney “passed certain urinalysis
testing at work, which tends to show that ‘there were some
periods of time where he was not using . . . drugs,’” id. at 95-
96 (quoting J.A. 1260); and Huntley’s DUI records corroborated
what Blakeney and his sister Peggy told Worthen about their
childhood   environment,  i.e.,  “‘that  their   stepfather  was
drinking a lot, had an alcohol problem, and that this cause was
a source of stress within the home,’” id. at 96 (quoting J.A.
1261).



                                       28
defendant prior to trial, defendant ‘did not report that he was

experiencing     depressive           symptoms       at    .    .   .   the     time        of   the

evaluation, and it was not clear to [Dr. Worthen] whether he was

experiencing depressive symptoms at the time of the crime.’”

Third     MAR   Order       93    (quoting          J.A.        1249)    (alterations              in

original).      And       indeed,      Worthen       had    testified         at    trial        that

Blakeney, during a pretrial evaluation, “‘denied any suicidal

thoughts or plans other than very fleeting suicidal thoughts,

which he said he would not carry out.                       He denied any symptoms of

depression.’”        Id. at 106 (quoting J.A. 87, 1304).                           “When asked

to   explain     the       meaning       of        ‘he     denied       any     symptoms           of

depression,’ Dr. Worthen replied, ‘I asked him . . . if he

experienced certain symptoms of depression and he said no.’”

Id. (quoting J.A. 1304-05).

        Moreover,    on    cross-examination               at    the    MAR    hearing,           Dr.

Worthen    retreated       from        his    characterization            of       “a   previous

diagnosis of depression” in Blakeney’s North Carolina Department

of Correction records, see Third MAR Order 93, explaining that

he merely assumed the relevant document — a “‘summary report’”

reflecting      that       Blakeney          had    been        referred       to       a    staff

psychologist        because      of     admitted         feelings       of     depression          —

further indicated that there was an “‘official diagnosis’” of

depression.         Id.    at    101    (quoting         J.A.    1285).         Worthen          also

agreed that it is “‘common for someone going into a period of

                                               29
long term confinement to have situational depression,’” and that

“‘[m]ight . . . have been what [the Department of Correction]

document    referred      to.’”      Id.      at     102   (quoting         J.A.    1285-86).

Additionally, it was established on cross-examination that the

Union     County   Mental    Health         Center    report          of   September      1995,

diagnosing     Blakeney      with     dependence           on    and       withdrawal      from

cocaine and alcohol, was “‘basically square with the diagnosis

that [Dr. Worthen] testified to at trial in this case,’” except

that Worthen also diagnosed marijuana dependence and did not

include “‘the withdrawal diagnoses . . . because [he] couldn’t

determine whether or not [Blakeney] was in a state of withdrawal

at   that    time.’”         Id.     at      103     (quoting          J.A.     1291)     (some

alterations in original).

     To corroborate Dr. Worthen’s new diagnosis, Dr. James E.

Bellard, an expert in the field of forensic psychiatry, also

testified at the MAR hearing.                See Third MAR Order 111.                    Bellard

performed      a    post-conviction            evaluation             of      Blakeney,      an

evaluation     that       involved     meeting         with          Blakeney      “on     three

occasions and spend[ing] about six hours with him,” as well as

“review[ing]       many     documents         provided          by     defendant’s        post-

conviction     counsel.”           Id. 16          “Dr.    Bellard’s          diagnosis       of


     16
         Dr. Bellard also interviewed defendant’s sister, Peggy
Blakeney. See J.A. 1426.



                                             30
defendant’s mental status at the time of the crime ‘was that of

.   .   .    major     depression       of     moderate         [to]    severe         severity[,]

without psychotic features.’”                   Id. (quoting J.A. 1428).                    Bellard

opined that, “at the time of the crime, defendant was under the

influence of severe mental or emotional disturbances.”                                        Id. at

112.         More    specifically,        Bellard          described         his   belief          that

Blakeney “‘was suffering from a major depression, which he had

been     suffering      for   at       least    two    months,          and    .   .    .     he    was

suffering       from    the   effects          of    the       dependencies        on    at      least

cocaine and alcohol and probably marijuana.                              And at the time of

the crime was also under the influence of cocaine, marijuana,

and alcohol.’”           Id. (quoting J.A. 1437-38).                          Bellard further

opined       that    Blakeney’s        “‘capacity          .    .   .   to     appreciate          the

criminality of his conduct or to conform his conduct to the

requirements of law’ was impaired.”                             Id. (quoting J.A. 1438)

(alteration in original).                On this point, Bellard explained that

“‘with that combination of chemicals in the system, combined

with     the   depression,         I    believe       [Blakeney’s]            ability       to     make

reasonable decisions and weigh[] options was impaired.                                        And so

in general you can support and corroborate Dr. Worthen’s revised

opinion as to depression and the presence of these mental health

impairments.’”         Id. at 113 (quoting J.A. 1438). 17


        17
         Although, in evaluating Blakeney, Dr. Bellard reviewed
(Continued)
                                                31
     The MAR court noted Dr. Bellard’s MAR hearing testimony

about   factors    in   Blakeney’s     life   history   significant   to   his

overall mental status, including the following:

     that   defendant   “shows  a   family   history  [for]
     alcoholism”; that defendant’s parents “split up by age
     two and [defendant] didn’t ever have a relationship
     with his father past that point”; that “no specific
     person . . . took a specific interest in [Blakeney]”;
     that things at defendant’s home were “pretty chaotic”;
     that defendant “didn’t do well in school”; that
     defendant “was promoted socially several times and
     left school in the ninth grade”; [and] that defendant
     had “a brother who died in the mid-eighties that was
     very close to him.”

Third MAR Order 113 (quoting J.A. 1439-44) (some alterations in

original).     On cross-examination, Bellard agreed that there was

no indication that Blakeney had been diagnosed with depression

prior   to   the   Huntley   murder,    including   during   his   1990-1995




various documents, including those included in the post-
conviction information, his MAR hearing testimony reflects that
the major depression diagnosis was largely based on his
interviews with Blakeney and his sister Peggy.     Specifically,
Dr. Bellard testified that Blakeney and Peggy were “able to
describe [seven symptoms of depression] for a period of at least
two months before [the Huntley murder].” J.A. 1431. According
to Bellard, “[i]t’s possible but speculative that [Blakeney] had
clinical signs for long before that.”    Id.  When asked how he
“would . . . rate Roger Blakeney’s depression at the time of the
incident,” Bellard responded that, “based on [Blakeney’s] report
and his sister’s report, I would rate him as moderate to
severe.”   Id. at 1433.    Bellard also noted that there “is a
minor distinction” between his diagnosis of major depression and
Dr. Worthen’s diagnosis of depressive disorder, but that both of
the diagnoses were of “active disorders about depression.” Id.
at 1448.



                                       32
incarceration in North Carolina and his September 1995 visit to

the Union County Mental Health Center.                              See id. at 114, 116.

Bellard also acknowledged that Blakeney had “‘some things that

would    satisfy     some       of    the    criteria          .    .   .   for    personality

disorders,’”       but     he    clarified            that    “‘the     vast      majority      of

individuals’”       also       satisfy      some       of     the    personality      disorder

criteria,     and       that    he     did       not     “‘think        [Blakeney]        has    a

personality disorder.’”               Id. at 116 (quoting J.A. 1461).

      Finally, the MAR court accepted Dr. Pamela Laughon as an

expert in the field of psychology on behalf of Blakeney.                                        See

Third MAR Order 118.                 “She opined that it is ‘customary’ for

trial attorneys to collect information, such as documents and

records,    and     provide      them       to    any        psychologist         evaluating     a

client.”    Id. (quoting J.A. 1691).

                                             ii.

        In ruling against Blakeney on the expert witness aspect of

his     ineffective      assistance/sentencing                     claim,   the     MAR    court

invoked our decision in Byram v. Ozmint, 339 F.3d 203 (4th Cir.

2003), among various other authorities applying Strickland and

its     Supreme     Court        progeny.               See        Third    MAR      Order      34

(characterizing Byram as “a case having similarities to the case

at bar”).     We recognized in Byram that, to satisfy Strickland’s

performance       prong,       “the    defendant            ‘must    show    that    counsel’s

performance       was     deficient’”            by     “produc[ing]         evidence        that

                                                 33
‘counsel’s representation fell below an objective standard of

reasonableness.’”        339 F.3d at 209 (quoting Strickland, 466 U.S.

at 687, 688).     More specifically, we observed that

        [a] failure to obtain available records . . . does not
        show that counsel’s investigation was inadequate.
        Attorneys will not be found ineffective unless they
        fail to make a reasonable investigation for possible
        mitigating evidence.    And the reasonableness of an
        investigation,   or  a   decision   by   counsel  that
        forecloses the need for an investigation, must be
        considered in light of the scarcity of counsel’s time
        and resources in preparing for a sentencing hearing
        and the reality that counsel must concentrate his
        efforts on the strongest arguments in favor of
        mitigation.

Id. at 210 (internal citations and quotation marks omitted).                      We

further observed in Byram, on the prejudice prong of Strickland,

that “[a] showing of prejudice requires the defendant to prove

that    ‘counsel’s      errors   were     so   serious   as    to     deprive    the

defendant of a fair trial.’”              Id. at 209 (quoting Strickland,

466 U.S. at 687).        And we explained that, “[i]n the context of a

capital sentencing proceeding, the question is whether ‘but for

counsel’s unprofessional errors, the result of the proceeding

would     have   been    different.’”          Id.   (quoting,        inter     alia,

Strickland, 466 U.S. at 694). Finally, we concluded that where,

“[i]n    light   of   the   wealth   of    information     presented     by     trial

counsel    [at   sentencing],     additional     information        [contained    in

unobtained records] would have added little[,] [t]here was no

‘reasonable      probability’     that     the   outcome      would     have    been


                                          34
different had trial counsel conducted an even more exhaustive

investigation.”          Id. at 211.

      Applying         these    principles           in    Byram,     we        first      rejected

Byram’s     claim       that        his      trial        counsel     rendered             deficient

performance        at      sentencing           by        deciding        not         to    present

psychological          evidence,       on     the     ground    that        counsel         made    a

reasonable strategic decision in recognition of the potential

harm posed by such evidence.                   See 339 F.3d at 210.                   Notably, we

also recognized that trial counsel was not obligated “to ‘shop

around’     for    a    favorable           expert    opinion       after        an    evaluation

yield[ed] little in mitigating evidence.”                           Id.      Furthermore, we

rejected trial counsel’s failure to obtain certain records as a

basis for the ineffective assistance claim, under Strickland’s

performance and prejudice prongs, on the grounds that reasonable

efforts     were    made       to    obtain     those       records       and    that,       in    any

event,    they      “would          have     added    little”        to    “the        wealth       of

information presented by trial counsel” in support of Byram’s

mitigation case.         Id. at 210-11.

                                                b.

      For Blakeney to prevail in these habeas corpus proceedings

on    the         expert        witness         aspect         of         his         ineffective

assistance/sentencing claim, we would have to conclude that the

MAR   court       unreasonably             applied    Supreme        Court       precedent         in

rejecting such claim under both the performance and prejudice

                                                35
prongs of Strickland.         Blakeney contends that he is entitled to

relief on the premise that Dr. Worthen’s initial personality

disorder diagnosis — the diagnosis to which Worthen testified

during the trial’s sentencing phase — was the result of trial

counsel’s    failure     to   obtain   and    provide     the    post-conviction

information.       Blakeney    asserts      that   the   personality     disorder

diagnosis   “was   harmful     to   Blakeney,      and   did    not   support    the

submission of any statutory mental health mitigators.”                     Br. of

Appellant 24 (emphasis omitted).            And, Blakeney maintains that,

      [i]f Dr. Worthen had been provided access to the
      [post-conviction information], he would have abandoned
      the damaging diagnosis of [personality disorder], and
      recognized   that    Blakeney     was    suffering   from
      depression.      There   is   at   least    a  reasonable
      probability   that   had   the   jury   understood   that
      defendant was suffering from a depressive disorder and
      resulting substance abuse, as opposed to an anti-
      social personality disorder, at least one juror would
      have reached a different conclusion.

Id. at 28-29.      Unfortunately for Blakeney, though we are willing

to assume that he has satisfied Strickland’s performance prong,

we cannot rule in his favor on the prejudice prong.

      Specifically, even accepting that the MAR court found Dr.

Worthen’s post-conviction diagnosis of depressive disorder to be

credible — a dubious notion in light of the evidence highlighted

in   the   Third   MAR   Order,     including      Worthen’s     testimony      that

Blakeney    had    originally       endorsed       symptoms     of    personality

disorder and denied symptoms of depression — the court could yet


                                       36
reject   the    proposition     that    Worthen’s      change   in   diagnosis

depended on the post-conviction information.                 As the district

court observed in its Habeas Corpus Order, “[a]ssuming arguendo

that the post-conviction diagnosis is the more accurate one, Dr.

Worthen did not need counsel’s help to diagnose Blakeney with a

depressive disorder.”      Habeas Corpus Order 10.           This is evident

from the MAR hearing testimony of Dr. Bellard, corroborating

Worthen’s post-conviction diagnosis, in that Bellard relied for

his major depression diagnosis on sources of information that

were available to Worthen when he made his initial diagnosis of

personality disorder.     See id. at 12.         Specifically,

     [l]ike    Dr.    Worthen’s   [initial    diagnosis],   Dr.
     Bellard’s      diagnosis     was    based      upon    his
     interview/evaluations with Blakeney and his interview
     with [Blakeney’s sister] Peggy.         According to Dr.
     Bellard,     Blakeney    reported    experiencing    seven
     identifiable symptoms of the illness of depression at
     the time of the [Huntley] murder.           Significantly,
     Blakeney and Peggy were able to describe those
     symptoms as having existed for at least two months
     prior to the murder.

Id. at 11; see also supra note 17.               Moreover, those factors of

Blakeney’s     life   history   noted       by   the   MAR   court   as   being

significant to Bellard in assessing Blakeney’s overall mental

status — his family history of alcoholism, the absence of his

father or another adult role model, the chaotic nature of his

home life, his lack of success in school, and the loss of his

brother — were largely known to Worthen prior to trial and


                                       37
discussed       in     his    Expert          Report.         In     these     circumstances,

Worthen’s       MAR     hearing          “testimony         that     it     was     the     [post-

conviction information] that made his diagnosis of depressive

disorder possible is unconvincing.”                        Habeas Corpus Order 12.

       Accordingly,          we    agree        with       the      district       court       that,

“[w]hatever the reason for Dr. Worthen’s original diagnosis, the

record indicates that he had the necessary resources to make a

diagnosis of depressive disorder prior to trial.                                   As such, any

prejudice       arising           from        the     original        diagnosis           is    not

attributable          to     trial         counsel          and      cannot        support       an

ineffectiveness         of     counsel         claim.”            Habeas    Corpus    Order      14

(citing     McHone      v.    Polk,       392       F.3d    691,     706    (4th    Cir.       2004)

(concluding          that    any    ineffectiveness                arising     from       expert’s

failure to utilize readily available evidence is attributable to

expert      rather      than       to     counsel          and,     thus,    cannot        support

Strickland claim)); see also Byram, 339 F.3d at 211 (recognizing

lack of prejudice resulting from counsel’s failure to obtain

records, where additional information in those records “would

have    added    little”). 18            We    thus     affirm       the    district       court’s




       18
          To the extent that Blakeney contends that he was
prejudiced by his trial counsel’s failure to obtain the DART
records, because the prosecution used the absence of such
records to paint Blakeney as a liar, we agree with the district
court’s rejection of such contention:

(Continued)
                                                 38
denial of habeas corpus relief on the expert witness aspect of

the ineffective assistance/sentencing claim.

                                  2.

                                  a.

     The MAR court also concluded that the character witness

aspect   of   Blakeney’s   ineffective   assistance/sentencing   claim

failed on both the performance and the prejudice prongs of the



          Ultimately, [Blakeney] cannot show that he was
     prejudiced by counsel’s failure to obtain the DART
     records.    The absence of DART records was only one
     example of several cited by the prosecutor as evidence
     that Blakeney was untruthful and that Dr. Worthen did
     not believe what Blakeney had told him.             The
     prosecutor argued, without objection, that Dr. Worthen
     did not believe what Blakeney had told him about the
     arson and murder and that he did not believe the
     answers that Blakeney had given to some of the
     questions on the psychological tests.      Indeed, Dr.
     Worthen   testified at   sentencing  that   the   story
     Blakeney had told the police was likely more accurate
     than the very different story that Blakeney had told
     him about the crimes.   He also testified that on the
     questionnaires he administered, Blakeney minimized his
     substance abuse problems, and that he (Dr. Worthen)
     had to adjust for that in making his diagnosis.     Dr.
     Worthen testified that he likewise had to adjust for
     the fact that Blakeney exaggerated some symptoms of
     psychological problems on at least one of the tests
     that he took. The jury, therefore, had ample evidence
     to conclude that Dr. Worthen doubted Blakeney’s
     veracity. As such, there is no reasonable probability
     that the jury would have returned a life sentence had
     the prosecutor not been able to argue that the absence
     of the DART records was evidence that Blakeney was not
     truthful.

Habeas Corpus Order 16-17.



                                  39
Strickland test.          See Third MAR Order 54.               According to the MAR

court,    “[t]rial       counsel’s    pretrial       investigative           efforts      were

well     within        the    acceptable          ‘wide     range       of        reasonable

professional       assistance’       required       by    the   first      prong     of    the

Strickland test and not the source of prejudice that is the

second prong of the Strickland test.”                     Id. (quoting Strickland,

466 U.S. at 689).            Importantly, the court supported its ruling

with explicit findings of fact and legal analysis.

                                             i.

       The MAR court found that “[o]ne of trial counsel’s most

significant       pretrial     investigative          efforts     involved          [lawyer]

Crow’s discussions with defendant,” which provided counsel with,

inter     alia,     “information       about        defendant’s       background          and

family,”        “information         about        defendant’s         prior         criminal

conviction       and     sentence,”    and    “information        about       defendant’s

presence    in     his    mother’s    house        on”    the   day   of     the     Huntley

murder.     Third MAR Order 54.              “While preparing for trial, Crow

asked defendant about people who were not his family members to

whom    trial     counsel    might    talk        about   testifying         as    character

witnesses.”        Id. at 59.          Blakeney suggested Jerry Leak, his

former supervisor at the City of Monroe Sanitation Department,

and Crow then spoke with Leak but did not call him as a witness.

See id. at 59, 60.            Blakeney “also told Crow that there were

people working at the jail who could testify about how he had

                                             40
gotten along while incarcerated and awaiting trial.”                           Id. at 59.

“Crow questioned Officer Tim Phillips and Deputy Sheriff Andrew

Simmerson, obtained a basic good report from them concerning

defendant’s conduct in jail, and thereafter called Phillips and

Simmerson to testify at trial that defendant had been a good

inmate.”      Id.

     As      for    family    members,    Crow      “was     well     acquainted    with”

Blakeney’s     sister,       Peggy   Blakeney,       whom     Crow     “had    previously

represented” and known “for about three or four years before he

represented        defendant.”       Third     MAR     Order    60.      Counsel       also

conducted      pretrial      interviews      with    Blakeney’s        mother,     Gracie

Blakeney, and wife, Tiney Blakeney.                  See id.        Peggy, Gracie, and

Tiney Blakeney are apparently the family members referred to in

the MAR court’s finding that Crow “talked to some of defendant’s

family members and sized them up to determine whether he thought

they would make good witnesses for the defense.”                       Id. at 63.

     Counsel ultimately decided, with respect to Peggy, Gracie,

and Tiney, to call only Peggy as a witness.                           “Crow knew that

being    a   witness    can    be    difficult,”       but     that    Peggy    “had   the

composure to be a witness.”              Third MAR Order 63.              By contrast,

Crow “ruled out” calling Gracie and “did not feel that Tiney

. . . would be a good witness.”                  Id.       With specific regard to

Tiney,



                                          41
      Crow decided not to call [her] as a witness at trial
      because he thought she might present some testimonial
      evidence that could hurt defendant’s case.         More
      precisely, Crow thought that evidence from [Tiney]
      concerning defendant’s use of alcohol and drug abuse
      would be the proverbial two-edged sword that cuts both
      ways and would hurt defendant in the eyes of the jury.

Id. at 61.         Counsel decided to present evidence on Blakeney’s

background        through    the        defense’s    expert     psychologist,       Dr.

Worthen, rather than family members (other than Peggy), because,

as Crow explained, “‘I just felt like we could get all we needed

in through Dr. Worthen without putting on people as witnesses

who might not be able to express themselves as well as Dr.

Worthen.’”        Id. at 63-64 (quoting J.A. 1118).                  Crow added that

“‘I liked the Blakeney family, but it helps to have somebody

who’s experienced and has some composure to testify.’”                          Id. at

64 (quoting J.A. 1118).

      During the trial’s sentencing phase, counsel called a total

of   four    witnesses:           Dr.    Worthen,    Peggy    Blakeney,     and    jail

personnel    Phillips       and    Simmerson.         See    Third   MAR   Order   60.

Counsel also “encouraged family members to attend defendant’s

trial to show support for defendant.”                 Id. at 60-61.        During the

trial,    counsel        spoke    with    several    family    members     “who    were

present     for    the    trial    and    could     have    testified   about     their

knowledge of defendant.”            Id. at 61.        “[C]ounsel made a tactical

decision,” however, “not to call as witnesses any of defendant’s



                                            42
family and friends other than those witnesses who were called to

testify.”    Id.    Crow believed

     “that we could bring out what we needed to bring out
     about [Blakeney’s] family background, through the
     information that Dr. Worthen got, and it was going to
     be presented by an experienced witness, and I thought
     that would come over a lot better than by presenting
     the individual family members who [we were not] real
     sure could handle testifying.”

Id. (quoting J.A. 1127) (second alteration in original).                      Crow

also explained that one of the reasons he decided not to call

the additional family members “‘was the fact that I really had

no prior contact with [them],’” explaining that “‘[i]t’s hard to

make a [really] good decision about something like that, with

such short contact.        I already had pretty well in my mind what I

was going to do.      That would require a change of strategy that I

didn’t feel comfortable with.’”              Id. at 64 (quoting J.A. 1164)

(third alteration in original).

    During    the    MAR    hearing,    “[w]hen    asked   to   reply    to    the

allegation   that    trial    counsel    provided    professional       services

below the requirements of Strickland by failing to adequately

interview    defendant’s      family     members     and   other    character

witnesses,” Crow responded as follows:

     “Hindsight is twenty, twenty.      I interviewed and
     talked to the people that [they, the family members]
     made . . . available to us, and that I ultimately felt
     comfortable with.   I guess the bottom line, I talked
     to those people that came forward and I urged them —
     and I would have talked to anybody else, any other
     family member that had — had they brought along with

                                        43
     them.   It’s their family.  I felt that they were the
     ones who could involve the other family members better
     than anybody else. That’s all I know to answer.”

Third     MAR   Order   63   (quoting    J.A.   1158-59)   (alterations   in

original). 19    According to the MAR court,

     Crow thought that defendant’s family members were “all
     good people,” but he also knew that none of them were
     “what you might call leading citizens [in] the
     community.”   None of defendant’s family members held
     public office; none were members of any profession
     (e.g., ministers, lawyers, doctors, bankers).    Thus,
     Crow did not call as witnesses at trial all of
     defendant’s brothers and sisters.

Id. at 64 (quoting J.A. 1118). 20




     19
         Crow similarly testified at the MAR hearing that “‘I
guess in hindsight I should have gone out and hunted each one
down and talked to them.    Ideally that’s what I should have
done, no question about that.   I told Gracie, I told Tiney, I
told Peggy, this is your son, this is your brother, people come
to my office, bring other family members, we can talk.      And
those were the ones that came.’”   Third MAR Order 64 (quoting
J.A. 1165).
     20
          Notably, Crow’s “leading citizens in the community”
testimony came in response to the State’s questions about
whether any Blakeney family member was “a college graduate,” “a
leading citizen in the community,” a holder of “any elective
office,” or a professional such as a “minister[], lawyer[],
doctor[], banker[,] etc.”     J.A. 1118-19.   Crow offered that,
“[f]or better or worse, that’s true, they weren’t. But they’re
good people.    I don’t want to disparage any.    They’re — from
what I know about them, they’re all fine, honorable people.”
Id. at 1119.    The State then responded that it “didn’t mean to
suggest otherwise” by its questions. Id. With this context, it
does not seem, as the MAR court suggested, that Crow indicated
that he did not call more family members as witnesses because
they were not “leading citizens in the community” or members of
any profession.



                                        44
       Post-conviction          counsel          presented          fourteen        character

witnesses at the MAR hearing — eight family members (including

Peggy,       Gracie,     and    Tiney       Blakeney)         and     six       non-relatives

(including        former    supervisor       Leak).          The    MAR     court    observed

that,    “[i]n     general,        they   each    testified         that     they    believed

defendant was a man of good character and a nice person, and

that they would have testified to that effect if they had been

called as witnesses at defendant’s 1996 trial.”                             Third MAR Order

64-65.       The court concluded, however, that “the stated basis of

their opinions and the nature of their responses during cross-

examination were such that their opinions would have no more

than    a    de   minimis      [e]ffect     on    a    reasonably         objective       juror

evaluating        the    evidence     and    the       aggravating          and    mitigating

circumstances in defendant’s case.”                    Id. at 65; see also id. at

65-85 (detailing character witnesses’ MAR hearing testimony).

                                            ii.

       In     denying      relief    on   the      character        witness        aspect   of

Blakeney’s        ineffective        assistance/sentencing                claim,    the     MAR

court       concluded,      with    respect       to    the    performance          prong   of

Strickland, that “[t]rial counsel’s investigation of defendant’s

background        and    his    circumstances           in     life       was     objectively

reasonable,” that “[t]here was no inattention to this matter by

trial counsel,” and that there was nothing to indicate “that

what trial counsel knew of defendant would have led a reasonable

                                             45
attorney to investigate further.”                  Third MAR Order 85.              The

court further ruled that, “[a]lthough trial counsel interviewed

far    fewer    potential          witnesses     than     postconviction      counsel

presented at the [MAR] hearing, trial counsel’s interviewing of

potential witnesses was objectively reasonable performance that

was    [not]   below    the    requirements       of    the   first   prong   of    the

Strickland test.”            Id. at 86.        The court distinguished Wiggins

v. Smith, 539 U.S. 510, 524 (2003) (deeming counsel ineffective

for “abandon[ing] their investigation of petitioner’s background

after having acquired only rudimentary knowledge of his history

from    a   narrow     set    of    sources”).          See   Third   MAR   Order   85

(observing that “there was in the case at bar nothing remotely

approaching the egregious neglect of the counsel in Wiggins”).

And, the MAR court drew favorable comparisons to three of our

decisions:      Tucker v. Ozmint, 350 F.3d 433, 441-42 (4th Cir.

2003) (concluding that counsel’s performance “far surpassed the

inadequate performance described in Wiggins,” in that counsel,

inter alia, “presented an expert psychologist who gave the jury

a full picture of Tucker’s disturbing social history”); Byram,

339 F.3d at 210 (rejecting ineffective assistance claim where,

“[u]nlike in Wiggins, . . . counsel here spent considerable time

developing a picture of Byram’s life”); and Bacon v. Lee, 225

F.3d 470, 481 (4th Cir. 2000) (observing that “Bacon’s counsel

could reasonably have concluded. . . that the evidence they had

                                          46
developed . . . would give the jury an accurate picture of

Bacon’s personality and that further investigation into Bacon’s

background would not be fruitful”).   See Third MAR Order 86.

     On Strickland’s prejudice prong, the MAR court “re-weighed

the evidence in aggravation against the totality of available

mitigating evidence.”   Third MAR Order 88 (citing Wiggins, 539

U.S. at 534; Tucker, 350 F.3d at 442).       The court explained

that, in particular, it considered the following circumstances:

     (a) that several of the witnesses demonstrated an
     obvious bias in favor of defendant based on their past
     close familial relationship to him; (b) that several
     of the witnesses based their opinion that defendant
     was a man of “good character” on factors not normally
     considered to be indicia of good character; (c) that
     considerable evidence of record shows that defendant
     is not a man of good character (e.g., the evidence of
     his history of substance abuse and his commission of
     armed robbery, larceny, assault, arson, and murder);
     (d) that defendant did not introduce any significant
     evidence affirmatively proving that he is in fact a
     man of good character; and, (e) that evidence of
     record shows that after defendant completed the DART
     program while serving five years confinement and after
     he was placed on probation, defendant disregarded the
     lessons he should have learned and returned to the
     costly and debilitating practice of using illegal
     drugs.

Id. at 87.   This assessment led the court to conclude that trial

counsel’s failure to interview and call more character witnesses

was not “the source of prejudice that is the second prong of the

Strickland test.”   Id. at 86.

                                 b.



                                 47
     In these habeas corpus proceedings, Blakeney contends that

he is entitled to relief because “counsel’s unreasonably limited

investigation   resulted   in   a        failure   to   discover     readily

available evidence of their client’s positive character and past

behavior, the very kind of evidence that could compel at least

one juror to find the client’s life to be worth saving.”             Br. of

Appellant 22 (citing Wiggins, 539 U.S. at 537).              According to

Blakeney, the additional character witnesses who testified at

the MAR hearing would have “provided important positive evidence

to counter the State’s demonization of Blakeney” at trial.                Id.

at 24.

     Of the eight family members and six non-relatives, Blakeney

specifically discusses in this appeal the MAR hearing testimony

of five of them:

     ●    Union County Deputy Sheriff Curtis Parker, “who
          had known Blakeney all his life, and testified
          that [the Huntley murder] was ‘out of character’
          for him”;

     ●    Leak, Blakeney’s former supervisor while employed
          by the City of Monroe, “who spoke positively
          about [Blakeney’s] work”;

     ●    Blakeney’s    brother,    Jimmy   Blakeney,               who
          corroborated that Blakeney completed the                 DART
          program during his prior incarceration;

     ●    Gracie Blakeney, who “admitted that she and
          Huntley exposed her son to extensive alcohol
          abuse and violence,” and who “expressed love for
          her son and her desire that mercy be shown for
          his culpability in” Huntley’s death; and


                                    48
      ●       Tiney Blakeney, who “shed light on the chaotic
              household in which [Blakeney] was living before
              the crime,” testified about his drug abuse, and
              described him as a nonviolent “good person” whom
              she loved.

Id.   at   10-12.         Blakeney    generally         describes         the    other   non-

relative witnesses, with one exception, as “life-long citizens

of    Union    County,      gainfully       employed,          and   without       criminal

records,” who testified that Blakeney “had performed good deeds

and positive acts in the community, that he did not have a

juvenile      criminal          history,     [and]        that       he     was     usually

nonviolent.”        Id. at 11 & n.2.               Similarly, Blakeney’s family

member witnesses “[a]ll are life-long residents of Union County,

and   none    has    a    criminal       record.         All    articulated         positive

memories       about       Blakeney         and      described             his      positive

characteristics, along with his debilitating background and the

dysfunctional household in which he grew up.”                        Id. at 11.

      According      to    Blakeney,       the     MAR    court’s         ruling    on    the

prejudice prong of Strickland means that “a family member cannot

credibly      testify     for     a   defendant      because         of    bias,”    and    a

defendant “cannot have any positive character traits, since he

has   committed      a    bad    act.”      Br.    of    Appellant         33.      Blakeney

asserts    that     the   MAR    court     ruling    cannot      stand.          Otherwise,

contrary to Supreme Court precedent, “no defendant could ever

present family witnesses or mitigating lay testimony because the

murder conviction — the ultimate evidence of bad character —

                                            49
would      always    preclude       any     testimony           about     good    character

traits.”     Id. (citing, inter alia, Wiggins, 539 U.S. at 535).

      Although       we     may     assume        that        Blakeney    has     satisfied

Strickland’s performance prong, as we did with respect to the

expert witness aspect of the ineffective assistance/sentencing

claim, we again cannot rule in his favor on the prejudice prong

of Strickland. 21         Simply put, whatever else the merits of the MAR

court’s     prejudice       ruling,       the     additional         character     evidence

testimony was substantially cumulative and, thus, can reasonably

be   said    to    “have    no    more     than    a     de    minimis    [e]ffect       on   a

reasonably        objective       juror    evaluating          the    evidence     and    the

aggravating and mitigating circumstances in defendant’s case.”

Third MAR Order 65.               As the district court recognized, “[t]he

testimony of Blakeney’s friends and family at the MAR hearing

was largely repetitive of the evidence offered at sentencing

through     Dr.     Worthen       and    Peggy.”         Habeas       Corpus     Order    19.

Moreover,     “the    additional          mitigating          evidence,    when    combined

with what the jury learned at sentencing, would [not] have been

enough to outweigh the aggravating evidence in this case.”                                Id.

at 24.

      21
          Because we assume that Blakeney has satisfied the
performance prong of Strickland, we express no views (contrary
to the depiction of this opinion by our dissenting colleague) on
the reasonableness of trial counsel’s performance or the MAR
court’s assessment thereof.


                                             50
        Accordingly,      the      character       witness       aspect    of     Blakeney’s

ineffective       assistance/sentencing             claim     fails       for    lack    of   a

sufficient showing of prejudice.                     See Tucker, 350 F.3d at 445

(recognizing that trial counsel’s failure to expose impeachment

evidence against prosecution expert was non-prejudicial, where

expert’s        testimony       was     cumulative         and,    “[c]onsidering         the

aggravating and mitigating circumstances present in this case,”

confidence in outcome of trial was not undermined); Byram, 339

F.3d at 211 (concluding there was no prejudice resulting from

failure     to        present      additional        information          about      Byram’s

childhood, where “the evidence presented before the [state post-

conviction relief] court was largely cumulative”).                              We therefore

affirm the district court’s denial of habeas corpus relief on

this aspect of such ineffective assistance claim.

                                             B.

        Next,    we    turn   to      Blakeney’s     exculpatory      evidence          claim,

which    also    has    two     aspects:          first,    whether   the        prosecution

withheld,       in     contravention         of    his     due     process       rights       as

recognized in Brady v. Maryland, 373 U.S. 83 (1963), the DART

records from the North Carolina Department of Correction (the

“DART    records       aspect”);       and   second,       whether    the        prosecution

committed a Brady violation by failing to reveal the fact that

Blakeney had confessed to the Huntley murder after Detective

Ronnie Honeycutt of the Union County Sheriff’s Department told

                                             51
him “it was time for him to stop hurting his family and hurting

himself and tell the truth” (the “confession aspect”).                              As the

Supreme Court has explained,

     [t]here   are    three  components   of  a   true   Brady
     violation: The evidence at issue must be favorable to
     the accused, either because it is exculpatory, or
     because it is impeaching; that evidence must have been
     suppressed    by    the  State,   either   willfully   or
     inadvertently; and prejudice must have ensued.

Strickler v. Greene, 527 U.S. 263, 281-82 (1999).                             We assess

whether the MAR court unreasonably applied Brady and its Supreme

Court progeny to the facts of Blakeney’s case, beginning with

the DART records aspect, followed by the confession aspect, of

the exculpatory evidence claim.

                                           1.

     The MAR court concluded that the DART records aspect of

Blakeney’s      exculpatory       evidence       claim    failed      on     the    merits

because,      inter     alia,    “[d]efendant       has    not     shown      that     the

Department     of     Correction    was    acting    on    behalf      of    either    the

prosecutor or any state law enforcement agency investigating the

murder   of     Callie    Huntley     at    the    time    of    the       alleged    non-

disclosures.”         Third MAR Order 131 (citing, inter alia, Kyles v.

Whitley, 514 U.S. 419, 437 (1995), for proposition that duty to

disclose      encompasses       material    in    possession     of    prosecutor       as

well as material “known to the others acting on the government’s

behalf   in    the    case,     including    the    police”).          The    MAR    court


                                           52
further concluded that “the information allegedly withheld was

not ‘material’ to either defendant’s conviction or sentence.”

Id. at 135 (citing Strickler, 527 U.S. at 289, for proposition

that, to establish prejudice, petitioner must show “a reasonable

probability    that     the     result       of    the    trial   would      have   been

different if the suppressed documents had been disclosed to the

defense” (internal quotation marks omitted)).

     Without reaching the issue of whether the Department of

Correction    was     acting     on    behalf      of    the   prosecution     when    it

failed to disclose the DART records, we conclude that Blakeney

has not made a sufficient showing of prejudice.                      See supra note

18 (quoting Habeas Corpus Order 16-17).                        We thus affirm the

district    court’s     denial    of    habeas      corpus     relief   on    the   DART

records aspect of Blakeney’s exculpatory evidence claim.

                                          2.

     The     MAR     court    rejected       the     confession     aspect     of     the

exculpatory    evidence        claim    as     both      procedurally     barred      and

lacking in substantive merit.             See Third MAR Order 124, 129-31.

The district court concluded that the MAR court’s procedural

ruling — that Blakeney had abandoned the confession aspect on

direct     appeal,     thus    triggering          the    North   Carolina     General

Statute section 15A-1419(a)(3) bar on collateral review — was

premised on a misreading of the issue.                    See Habeas Corpus Order

42-43.     The court thus proceeded to analyze the merits of the

                                          53
confession aspect, but rejected Blakeney’s request for habeas

corpus relief thereon.                  See id. at 43.            In this appeal, the

parties dispute whether the confession aspect was procedurally

defaulted.          Because we conclude that it fails on the merits, we

need not reach the procedural default question.                             See Eaton v.

Angelone, 139 F.3d 990, 994 n.1 (4th Cir. 1998) (“Because we

agree      with        the       district       court’s          denial      of      Eaton’s

ineffectiveness claim on the merits, we need not resolve the

thorny issue of procedural default.”).

       Blakeney       contends     that     “Detective          Honeycutt    revealed      for

the first time at the MAR hearing that Blakeney’s confession

came    only    after      the    detective         made   an    appeal     to    Blakeney’s

humanity . . . .           Such an [empathetic], emotional response to an

appeal to Blakeney’s feelings for his family would have been

contrary       to    the   picture       the   prosecution         sought    to    paint    of

Blakeney as cold, calculating, anti-social and devoid of any

feelings       for    anyone      but    himself.”         Br.    of   Appellant      40-41.

Unfortunately          for       Blakeney,      however,          no   Brady       violation

occurred, because Blakeney, as a participant in the conversation

with Honeycutt, is presumed to know what was said.                                See United

States v. Roane, 378 F.3d 382, 402 (4th Cir. 2004) (“We have

explained that information actually known by the defendant falls

outside the ambit of the Brady rule.” (citing Fullwood v. Lee,

290 F.3d 663, 686 (4th Cir. 2002))).                       In these circumstances, we

                                               54
affirm the district court’s denial of habeas corpus relief on

the confession aspect of Blakeney’s exculpatory evidence claim.

                                                C.

        Finally,       we     assess      Blakeney’s             contention          that      he     is

entitled        to     an     evidentiary            hearing        on        his       ineffective

assistance/jury             composition         claim.             The        premise         of    the

ineffective assistance/jury composition claim is that Blakeney’s

trial    counsel       was    constitutionally              ineffective            in   failing      to

object     to    the    prosecution’s            jury       selection          under       Swain     v.

Alabama, 380 U.S. 202, 223 (1965) (recognizing that inference of

purposeful       discrimination           would        be    raised       on        evidence        that

prosecutor,      “in        case   after       case,       whatever      the        circumstances,

whatever the crime and whoever the defendant or the victim may

be,” removes qualified African-American prospective jurors who

have survived challenges for cause, so that no African-Americans

“ever serve on petit juries”).                        Of course, by its decision in

Batson    v.     Kentucky,         476    U.S.       79     (1986),      the        Supreme        Court

“replaced       Swain’s        threshold            requirement          to        prove      systemic

discrimination under a Fourteenth Amendment jury claim, with the

rule    that    discrimination            by    the       prosecutor          in    selecting        the

defendant’s          jury     sufficed         to     establish          the        constitutional

violation.”           Miller-El      v.    Dretke,          545   U.S.        231,      236    (2005).

Nevertheless,         Blakeney      maintains             that    Swain       survives         Batson,

relying on Miller-El.                In deciding whether the district court

                                                55
abused its discretion in denying Blakeney an evidentiary hearing

on   his    ineffective       assistance/jury            composition       claim          under

Swain,     we   first    review        the    procedural      history      of     this      and

related     claims      pursued    by        Blakeney,    and    then      turn      to    our

analysis.

                                              1.

     Blakeney first challenged the composition of his jury at

trial, having unsuccessfully made written and oral motions to

dismiss the jury venire based on an alleged under-representation

of African-American citizens.                  The state supreme court affirmed

on direct appeal, concluding that the difference in the makeup

of   the    jury     venire       and        the   general      population        was      not

statistically        significant,         and      observing     that      Blakeney        had

failed to allege (as required to sustain his claim) that the

under-representation of African-American citizens was the result

of systemic exclusion in the jury selection process.                            See State

v. Blakeney, 531 S.E.2d 799, 808-09 (N.C. 2000).                        Also on direct

appeal,     Blakeney      asserted           ineffective      assistance        of        trial

counsel     for    failure        to     make      a   Batson     objection          to     the

prosecution’s        peremptory         challenge        to    one   African-American

prospective juror, Robert Crawford.                    See id. at 814.          The state

supreme    court     concluded         that    “defendant      has   not    demonstrated

that his counsel was ineffective by failing to make a Batson

objection.        Rather, defendant has shown only that he is black

                                              56
and that the State peremptorily struck one black prospective

juror.     This is insufficient to establish a prima facie case of

racial discrimination.”          Id. at 815 (internal quotation marks

omitted).

      Thereafter, in his MAR, Blakeney asserted his substantive

jury composition claim, alleging that “[t]he prosecution used

its   peremptory      challenges      to        excuse     all    eligible       African-

American    jurors”      from   his   trial        as      part   of     a    pattern    of

discrimination, J.A. 731, and citing three other Union County

cases as evidence.        The MAR court rejected the substantive jury

composition      claim    as    procedurally            barred     for       having     been

“previously determined on the merits upon an appeal”; waived by

Blakeney’s failure to raise the three other Union County cases

at trial; and without merit in light of the disparate facts of

one of the other Union County cases (in which the defendant was

Native American and did not challenge the jury composition on

direct appeal), and the failure of jury composition challenges

in the remaining two Union County cases.                         First MAR Order 78,

81-84.

      Blakeney    then    amended     his       MAR   to    raise      the    ineffective

assistance/jury composition claim, repeating his allegation that

“[t]he prosecution used its peremptory challenges to excuse all

eligible African-American jurors” from his trial, and further

asserting that “trial counsel failed to investigate and present

                                           57
available and credible evidence that the prosecutor’s conduct

impermissibly excused all African-American jurors not only in

[his] case, but in prior capital cases in Union County.”                                J.A.

840.     Blakeney again raised the three other Union County cases,

and he invoked Swain, Batson, and Miller-El.                               The MAR court

rejected      the   ineffective      assistance/jury            composition         claim   as

procedurally barred and without substantive merit.                             First, the

court    observed     that,      contrary         to    Blakeney’s         allegation       of

peremptory      challenges     being       used    to    exclude      “African-American

jurors” from his trial, only one African-American prospective

juror (Crawford) was peremptorily challenged.                              See Second MAR

Order    3.     Additionally,         the    court       observed      that    Blakeney’s

assertion about discrimination in other Union County cases was

not supported by the three other Union County cases cited.                                  See

id. at 4.       The court also observed that the three other Union

County cases, as well as Blakeney’s own case, “are matters of

record     affirmatively         showing      an        absence       of     prosecutorial

misconduct      during    jury      selection.”           Id.    at    11.      The    court

concluded that the ineffective assistance/jury composition claim

was procedurally barred for having been raised in Blakeney’s

direct     appeal,       by   way     of     his       Batson-related         ineffective

assistance claim.         See id. at 16.               Further, the court rejected

the claim on the merits by ruling that, because Blakeney could

not    establish     ineffective       assistance         for     failure      to    make    a

                                            58
Batson objection, he could not do so for failure to make a Swain

objection.        As the MAR court explained, “a defendant can not

establish    either     an   ‘old’   Swain    violation   or    a    ‘new’   Batson

violation unless he can prove that a prosecutor in his case

engaged      in     racially     discriminating         use     of     peremptory

challenges.”      Id. at 20.

     In   these     habeas     corpus    proceedings,     the   district      court

considered        and   rejected        the    ineffective      assistance/jury

composition claim on the merits.                As an initial matter, the

court properly recognized that the relevant state court decision

for AEDPA purposes in these proceedings is that of the state

supreme court on direct appeal.               See Habeas Corpus Order 32-33

(citing Goins v. Angelone, 226 F.3d 312, 320 (4th Cir. 2000)).

The district court then observed that,

     [o]rdinarily,   the  Court    would   review   the   North
     Carolina Supreme Court’s decision to determine whether
     it was contrary to or an unreasonable application of
     established Federal law. However, [Blakeney] does not
     challenge that court’s adjudication of this issue in
     any way.    In fact, he does not directly acknowledge
     that   he    raised   a    Batson-related     [ineffective
     assistance] claim on direct appeal.          He does not
     assign error to the state Supreme Court’s factual or
     legal    conclusions   rejecting    his    Batson-related
     [ineffective assistance] claim.     Most importantly, he
     has   not   directed   this   Court    to  any    relevant
     circumstances from his trial or the record on appeal
     that would constitute evidence of discriminatory
     intent on the part of the prosecutors when they used a
     peremptory challenge to strike Robert Crawford (e.g.
     racially suspect comments by the prosecutors during
     voir dire, similarities between voir dire answers by
     white jurors who were not excused by the prosecutor

                                         59
     and those of Robert Crawford, etc.).            Because
     [Blakeney] has not alleged error on the part of the
     state   Supreme  Court   or  challenged   that  court’s
     conclusion that there is no evidence in the record on
     appeal of discriminatory intent by the prosecutor when
     he removed Robert Crawford, he has waived any argument
     in this Court that the state Supreme Court was
     incorrect in either its factual or legal conclusions.

          Since [Blakeney] waived any challenge to the
     North Carolina Supreme Court’s conclusion that there
     is no evidence of discriminatory intent by the
     prosecutor when he removed Robert Crawford, his
     support for a prima facie case of a Batson violation
     by the State consists solely of the following evidence
     presented in his MAR and in the instant claim:      1)
     [Blakeney] is African-American; 2) prosecutors used a
     peremptory strike to excuse Robert Crawford, an
     African American, from [Blakeney’s] jury; and 3) in
     three other Union County capital cases, prosecutors
     allegedly struck all African American jurors who were
     not struck for cause. [Blakeney] refers to the three
     prior Union County capital cases as “Swain” evidence
     and argues that under Swain[, 380 U.S. at 222-24], he
     is entitled to show the prosecutor’s systemic use of
     peremptory   challenges   to  strike  African-American
     jurors over time.       It appears that [Blakeney’s]
     argument is that had trial counsel made a Batson
     objection and presented evidence from [the three other
     Union County cases], it would have been sufficient to
     establish a prima facie case of discriminatory intent
     on the part of the prosecutors when they excused
     Robert Crawford.

Habeas    Corpus    Order     33-35    (internal    citations   and   quotation

marks omitted).

     The district court concluded that, even “[a]ssuming that

Swain’s    prima     facie     evidentiary     standard    survived    Batson,

[Blakeney’s]       evidence    of     ‘historical   systemic    exclusion’   is

insufficient to raise an inference of discriminatory intent in

his own case.”        Habeas Corpus Order 35.           The court therefore

                                         60
ruled    that   Blakeney’s      ineffective      assistance/jury       composition

claim failed on the first prong of Strickland, in that trial

counsel was not deficient in failing to challenge the exclusion

of Crawford from Blakeney’s jury.              See id. at 37.        Additionally,

the court observed that, even if counsel had been deficient,

Blakeney     could      not    make    Strickland’s   requisite       showing   of

prejudice.        See    id.    at    37-38.     Finally,     the    court   denied

Blakeney’s request for an evidentiary hearing on the ineffective

assistance/jury composition claim, on the ground that Blakeney

failed to establish one of the six factors in Townsend v. Sain,

372 U.S. 293, 312-13 (1963), a showing necessary to qualify him

for such a hearing.           See Habeas Corpus Order 38.           Thereafter, in

its Second Rule 59(e) Order, the court stood by its denial of

Blakeney’s evidentiary hearing request.

                                          2.

        On appeal, Blakeney challenges the district court’s grounds

for rejecting his ineffective assistance/jury composition claim

pursuant to Strickland, but he does not specifically address the

court’s ruling that he failed to demonstrate entitlement to an

evidentiary hearing under Townsend.               A habeas corpus petitioner

is not entitled to an evidentiary hearing in the district court

if he “‘failed to develop the factual basis of a claim’ in state

court    unless    certain      statutory      requirements    are     satisfied.”



                                          61
Fullwood, 290 F.3d at 681 (quoting 28 U.S.C. § 2254(e)(2)). 22

Even if § 2254(e)(2) presents no bar to an evidentiary hearing,

however, “that does not mean he is entitled to an evidentiary

hearing — only that he may be.”              Id. (internal quotation marks

omitted).      And, as the district court recognized, petitioner

must    also   establish   one   of    the    six   factors   set   forth   in

Townsend, 372 U.S. at 312-13.         Those six factors are:

       (1) the merits of the factual dispute were not
       resolved in the state hearing; (2) the state factual
       determination is not fairly supported by the record as
       a whole; (3) the fact-finding procedure employed by
       the state court was not adequate to afford a full and
       fair hearing; (4) there is a substantial allegation of
       newly discovered evidence; (5) the material facts were
       not adequately developed at the state-court hearing;
       or (6) for any reason it appears that the state trier
       of fact did not afford the habeas applicant a full and
       fair fact hearing.

Townsend, 372 U.S. at 313.       Simply put, Blakeney has not offered

us any basis to conclude that the district court abused its

discretion in ruling that he failed to satisfy one of the six

Townsend factors.     Accordingly, we affirm the court’s denial of

       22
           Under 28 U.S.C. § 2254(e)(2), a habeas corpus
petitioner, in order to be accorded an evidentiary hearing in
the district court, must show that his habeas claim relies on “a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable” or on “a factual predicate that could not have been
previously discovered through the exercise of due diligence,”
and that “the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.”



                                      62
Blakeney’s request for an evidentiary hearing on his ineffective

assistance/jury composition claim.



                               IV.

     Pursuant to the foregoing, we affirm the district court.

                                                         AFFIRMED




                               63
GREGORY, Circuit Judge, concurring in part and dissenting in
part:

     Blakeney contends that he was prejudiced by trial counsel’s

failure     to     interview       and     present     mitigating      evidence       from

several witnesses who were available and willing to testify at

the sentencing proceeding. 1              I agree and, therefore, dissent from

the majority’s denial of relief on Blakeney’s claim that his

trial      counsel        rendered       ineffective     assistance          during    the

sentencing        phase    of   the   trial.      I    concur    in    the    majority’s

judgment to deny Blakeney relief on his other claims.

     Trial        counsel’s       ineffectiveness       was     prejudicial        because

their      lack    of     investigation        deprived       Blakeney       of     witness

testimony that was crucial to his mitigation defense.                             They did

not call Blakeney’s wife, five of his six siblings, or members

of   his    community        as    witnesses.          Although       trial       counsel’s



     1
        Blakeney  also   claimed   that  his   counsel  rendered
ineffective assistance because they failed to provide his
expert, Dr. Worthen, with sufficient information to make an
appropriate diagnosis.    Although it seems clear that trial
counsel inadequately prepared Dr. Worthen, and that Dr.
Worthen’s testimony probably had a prejudicial effect on the
jury, I agree with the majority that Blakeney’s claim was
undermined when his own witness, Dr. Bellard, testified at the
MAR hearing that Dr. Worthen could have reached a proper
diagnosis with the limited information supplied by counsel.
Thus, Blakeney could not demonstrate that counsel’s ineffective
assistance caused the prejudice that resulted from Dr. Worthen’s
diagnosis.




                                             64
decision not to call character witnesses is a strategic one to

which enormous deference is owed, United States v. Terry, 366

F.3d 312, 317 (4th Cir. 2004), we are not obliged to give such

deference when, as here, counsel’s conduct is unreasonable and

unjustifiable.          If the Sixth Amendment is to have meaning, we

cannot simply elevate counsel’s flawed performance to the status

of    strategy.         This    is    especially     so    in   capital      sentencing

proceedings.

       During the sentencing phase of the trial, Blakeney’s trial

counsel presented three lay witnesses and one expert, Dr. Mark

Worthen.      Two of the lay witnesses, correctional officers from

the    county     jail,        testified    that     Blakeney        did    not   commit

infractions       while    in    jail.       (J.A.     56-60.)        The    third   lay

witness,     Peggy       Blakeney      Ratcliff,       one      of    Blakeney’s     six

siblings,       (J.A.     143-51)      testified       that      their      family   was

extremely     poor   and       that   Mr.   Huntley,      the   victim,     and   Gracie

Blakeney, Blakeney’s mother, often drank too much.                           (J.A. 146-

51.)       Trial counsel did not seek further testimony from Ms.

Ratcliff about Blakeney’s background or Mr. Huntley as a step-

father. 2     The testimony of the three lay witnesses represented

       2
       Evidence came in during the MAR hearing that the victim
had physically abused Blakeney’s mother and engaged in sexually
inappropriate behavior with Blakeney’s sisters.




                                            65
only twelve pages of the entire trial transcript.                     (J.A. 56-60,

143-51.)      Crow, one of Blakeney’s attorneys, testified that he

strategically       chose    to    call    only    Ms.   Ratcliff    as    a    witness

because he knew her well. 3           (J.A. 2217.)

      Trial    counsel       stated       that    they   did   not   want       to     put

Blakeney’s wife on the stand for the strategic reason that she

would highlight his drug use.               Yet, evidence of Blakeney’s drug

use was prevalent throughout the record without her testimony.

The   drug    use     was    emphasized      specifically      in    Dr.    Worthen’s

report, yet trial counsel thought that the doctor’s testimony

was the most effective way to present mitigation evidence.

      Blakeney’s      wife    could       have    presented    evidence     of       their

chaotic family life.          She testified at the MAR hearing that her

oldest daughter, age fourteen, was in a violent relationship

with her twenty-one-year-old husband, Aaron.                   When Blakeney came

to his step-daughter’s aid, Aaron pulled a gun on him. 4                       This was

not   the     first    time       that    things    became     physical        in    that

household, yet Blakeney did not respond violently then or ever.

(J.A. 1646-47.)         This was important testimony to be heard in


      3
       Crow served as Ms. Ratcliff’s counsel three or four years
prior to Blakeney’s trial. (J.A. 2217.)


      4
       This is exactly what the victim did to Blakeney in the
underlying offense.




                                            66
juxtaposition     to     Blakeney’s     prior    criminal       record     and     the

government’s    attempt     to    portray     Blakeney    as    a    man   prone    to

violence.

      The majority’s characterization of the other five siblings’

testimony     presented     at    the   MAR     hearing    as       cumulative      is

incorrect. All of Blakeney’s siblings were available and willing

to be interviewed and provide unique testimony.                     Claree Blakeney

Griffin testified at the MAR hearing and offered a portrait of

Blakeney quite different from that painted by the government.

She described her brother as a gentle and giving man, testifying

that when the father that abandoned all seven children became

ill as an elderly man, it was Blakeney who traveled to stay with

him and take care of him until “he got better on his feet.”

(J.A. 1400.)      Blakeney cooked, cleaned, and helped his father

pay the bills.        This was but one example of Blakeney’s actions

that supported Griffin’s testimony that her brother has a “good

heart.”     (J.A. 1402.)

      Griffin’s      testimony    was   corroborated      by    another     sister,

Catherine Taylor.         Taylor added her own unique story to help

describe why she thought her brother was a good person.                           When

she   was   having     personal   problems,     Blakeney       offered     to    drive

Taylor from North Carolina to Cleveland and then take the bus

back.     (J.A. 1602-03.)        She said that he was always there when

she needed him.         (Id.)     It is mystifying that trial counsel


                                        67
disregarded     the     entire   family,       when       the    MAR     transcript   of

Taylor’s     testimony      seemed      to     be     especially          coherent    and

believable.

      Like    his   sisters’     testimony,         Jimmy       Blakeney’s    (“Jimmy”)

testimony could have helped his brother.                        Not only could Jimmy

have corroborated Blakeney’s assertion that he had completed the

DART program, but he also had his own unique story demonstrating

Blakeney’s positive character traits.                  Jimmy lived next door to

the Wilsons, an elderly couple whom Blakeney would take shopping

and fishing.        Blakeney also did chores and ran errands for the

couple without compensation.            (J.A. 1630.)

      The    majority    did   not    explain       how    it    was     reasonable   for

trial counsel to discount five siblings, saying that they could

not   handle    testifying,      after       meeting      only     one    sibling,    who

seemed worthy of the stand.             (Maj. Op. 43.)           The information the

family could have provided was vital because his family offered,

among other things, an alternative portrayal to contrast the

government’s image of a man who had thoughtless disregard for

the elderly and personal suffering.

      The    MAR    court      stated    that       trial        counsel     talked    to

Blakeney’s family members and “sized them up” in order to decide

who should testify for Blakeney.                 Counsel met Blakeney’s wife

and mother and decided they did not have enough “composure” to

testify.     (Maj. Op. 42.)          It is clear that trial counsel based


                                         68
their decision on the way that these women spoke and their level

of education, calling it “composure.” In fact, it seems that

after trial counsel met these women, they prejudged the rest of

Blakeney’s large family, deciding that if these women lacked

“composure” then no one in his family was worth interviewing.

       The majority appears to approve of Crow’s stated reason for

not    calling   these    family   members:           “I   really   had   no   prior

contact with [them] . . . [i]t’s hard to make a [really] good

decision about something like that, with such short contact.”

(Maj. Op. 43.)          It is hard to believe that the majority was

satisfied with this excuse given that Crow’s “short contact”

with Blakeney’s family members was the result of his failure to

attempt to meet them.           It is not clear whether counsel ignored

Blakeney’s family because they lacked composure or because Crow

“had no prior contact with them,” but each excuse is inadequate

on its own and indefensible when joined with the other.                    How can

it    be   reasonable    to   conclude     that   a    person   lacks     composure

without meeting him or her?              Clearly, trial counsel’s excuses

are unjustifiable.

       In finding that trial counsel were reasonable in failing to

interview     and   offer     Blakeney’s      family   as   witnesses,     the   MAR

court stated:

       Crow thought that defendant’s family members were “all
       good people,” but he also knew that none of them were
       “what  you   might  call   leading  citizens   of  the


                                         69
       community.”   None of defendant’s family members held
       public office; none were members of any profession
       (e.g., ministers, lawyers, doctors, bankers.)    Thus
       Crow did not call as witnesses at trial all of
       defendant’s brothers and sisters.

(J.A. 2221.)           Needless to say, one need not be a minister,

lawyer, doctor, or banker to be a respected or leading member of

one’s community.            All of the people who testified for Blakeney

at the MAR hearing were hardworking members of the community

and,   with     the    exception       of    one,    none    had    criminal      records.

Trial counsel prejudged these potential witnesses and discounted

them because they did not have fancy letters after their names.

The MAR court, district court, and majority called this strained

reasoning        “strategy,”          and     concluded          that     it     satisfied

Strickland.         I disagree.

       Even    if     trial    counsel      did     not    believe      that    Blakeney’s

family members were “upstanding citizens” worthy of the stand,

had    trial    counsel       interviewed         them    they    would    have       led    to

witnesses      such    as     Union    County      Deputy    Sheriff      George      Curtis

Parker.       Parker testified at the MAR hearing that he had known

Blakeney       all    of    his   life,      that    the    incident      was     “out       of

character” for Blakeney, and that he would have testified at the

sentencing      proceeding.           (J.A.       1375-88.)        Parker       was   a     law

enforcement      officer       with    the    Sheriff’s       Office      for    seventeen

years before retiring.            His testimony certainly would have been

persuasive      at    the     sentencing      proceeding,         because      unlike       the


                                             70
prison guards trial counsel presented at sentencing, Parker knew

Blakeney’s family intimately and had known Blakeney personally

since    he    was    a   boy.         Given    the        nature    of    Parker’s       close

relationship with the family, a minimal amount of investigation

would have led trial counsel to him.                            In fact, most of the

information      that     would    have        aided       in    Blakeney’s        mitigation

defense could have been easily obtained.

     The      majority    and     the    courts       before        it    found    Blakeney’s

trial counsel effective because they accepted Crow’s decision to

place all of the responsibility for mitigation investigation on

Blakeney’s family:         “I guess the bottom line, I talked to those

people   that    came     forward       and    I     urged      them—and     I    would    have

talked to anybody else, any other family member that had-had

they brought along with them.                  It’s their family.”               (J.A. 2220.)

One must appreciate Crow’s honesty.                    He admitted that he allowed

his mitigation investigation to begin and end with the efforts

of Blakeney’s family.             He admitted that he was willing to talk

to anyone provided they came to him, but forged no independent

investigation        despite     the    fact        that    such    investigation         could

have revealed defense theories and character witnesses.                                    This

type of responsibility shifting has been rejected as ineffective

in relevant case law.

     In Gray, this Court did not allow trial counsel to rely on

the petitioner’s failure to aid in his own defense.                               529 F.3d at


                                               71
225-26, 230 (finding that trial counsel was not allowed to rely

on defendant’s instruction “not to spend another f’ing penny on

this trial” because “he didn’t need a psychiatrist” and “[t]here

was nothing wrong with him.”).                In Rompilla, the defendant told

his trial counsel that his background was unexceptional, yet the

Supreme     Court    did     not    allow       trial   counsel      to    end     their

investigation there.           545 U.S. at 381.             Investigation is as

important to a proper defense as oral argument in court, and it

is an especially essential element in the defense of a capital

case.        It     is     ironic      that      Blakeney’s        counsel       shifted

responsibility for the investigation onto the same family that

they determined lacked composure.                 Even a cursory evaluation of

trial   counsel’s        performance      reveals   that    it     fell    well   below

professional norms and greatly prejudiced Blakeney.

      The   majority       stated   that      the   MAR    court    drew     favorable

comparisons to three of our decisions, implying that the MAR

court’s analysis was sound when it was not.                         (Maj. Op. 46.)

Unlike in Tucker v. Ozmint, this Court cannot conclude that the

“psychologist       ...    gave     the    jury     a   full     picture     of     [the

defendant’s] ... disturbing social history.”                     350 F.3d at 441-

42.     Unlike the doctor in Tucker, Dr. Worthen could not have

presented a full picture of Blakeney to the jury, because, as

acknowledged, he lacked the complete picture.                        In this case,




                                           72
Blakeney’s family could have provided the full picture, but no

one interviewed them to obtain it.

            The MAR court and the majority correctly characterized

Bacon v. Lee, where we stated:

     “[C]ounsel could reasonably have concluded, based on
     their earlier investigation, that the evidence they
     had developed . . . would give the jury an accurate
     picture of [the petitioner’s] . . . personality and
     that   further   investigation   into  .   .   . [the
     petitioner’s] background would not be fruitful.”

225 F.3d at 481.       In contrast, here further investigation would

certainly have been fruitful in developing Blakeney’s mitigation

defense.        Had trial counsel done even minimal investigation,

they would have discovered that Blakeney’s family could have

presented valuable information to the jury.                     This information

would have supplemented the doctor’s testimony with mitigating

evidence relating to Blakeney’s benevolent conduct, kind heart,

and good character.

     It    is    unclear    how   Byram   is       analogous,   since   this   Court

stated,    “Unlike     in     Wiggins,         .    .   .   counsel     here   spent

considerable time developing a picture of [petitioner’s] . . .

life.” 5   339 F.3d at 210.        The record reflects that trial counsel


     5
       In Byram, we held that the petitioner had not shown that
his trial counsel’s performance fell below an objective standard
of reasonableness.  Id. at 209.   One member of Byram’s defense
team logged 623.5 hours of pre-trial preparation while the other
member met with Byram at least thirty times.        Id. at 210.
Blakeney’s trial counsel logged a total of 506.47 hours working
(Continued)

                                          73
did not spend a considerable amount of time developing a picture

of Blakeney’s life.          The cases cited by the MAR court, and

relied upon by the majority, are inapposite to the case at bar.

       The MAR court proffered, and the majority tacitly accepts,

some troubling reasons to justify its finding that trial counsel

was not ineffective in failing to interview Blakeney’s family.

The    court’s    first    stated   reason    for     concluding   that   trial

counsel’s failure to interview and call Blakeney’s family as

character witnesses was not a “source of prejudice” was that

“several of the witnesses demonstrated an obvious bias in favor

of defendant based on their past close familial relationship to

him.”    (Maj. Op. 47.) The MAR court seems to suggest that courts

must    discredit    the   testimony   of    family    members   who   love   the

defendant.       Is “obvious bias . . . based on . . . close familial




on Blakeney’s entire case.      (J.A. 2167-69.)   Most of trial
counsel Crow’s hours were in court.    Despite the fact that one
member of Byram’s defense team logged more hours in pre-trial
preparation than the total of both of Blakeney’s defense
attorneys during the entire case, this is not dispositive as we
did not base our decision in Byram merely on the number of hours
logged by the attorneys. Byram’s defense team hired a forensic
psychologist and a forensic psychiatrist. Id. Byram’s defense
team carefully analyzed the findings of the doctors and decided
not to present the testimony of either, which was a strategic
decision based on the potentially prejudicial findings of the
doctors.   Id.  Blakeney could only wish that his trial counsel
had understood the potentially prejudicial effect of Dr.
Worthen’s   diagnosis  and   supplemented   it  with   mitigation
evidence.




                                       74
relationship” not just a convoluted way of describing love?                                If

this Court were to adopt the logic of the MAR court, then we

would have to disregard the testimony of all family members even

when, as here, they possess valuable mitigation evidence.

        The court went on to state that “several of the witnesses

based their opinion that defendant was a man of ‘good character’

on    factors       not     normally      considered      to    be    indicia     of     good

character.”         (Id.)      Yet   as    shown       above,   his    siblings    offered

specific conduct as evidence to support their assertions that

Blakeney had a kind heart and was a good person.                           Additionally,

the court stated that “considerable evidence of record shows

that    defendant         is   not   a     man    of    good    character    (e.g.,       the

evidence of his history of substance abuse and his commission of

armed robbery, larceny, assault, arson, and murder).”                                   (Id.)

This is an especially troubling assertion.                            Under the court’s

standard, no person with a history of criminal convictions and

substance abuse could be considered a good person no matter how

many years he was sober or how many good deeds he had done.

Under       the   court’s      standard,     there      would   be    no   need    to    have

character witnesses at all because if a man were convicted of a

crime, he would be, per se, a man of bad character.

       Most       surprisingly,      the    court      said,    “[D]efendant       did   not

introduce any significant evidence proving that he is in fact a

man    of    good    character.”          (Id.)        However,      Blakeney     presented


                                                 75
fourteen character witnesses, many of whom said wonderful and

unique   things    about      him    and     supported     their     testimony      with

specific evidence.       By the MAR court’s standard, it seems there

is nothing Blakeney could have presented to demonstrate good

character.

      Finally, the MAR court justified its finding that Blakeney

was not prejudiced by his counsel’s deficient performance by

stating:      “[E]vidence       of    record       shows   that     after     defendant

completed the DART program while serving five years confinement

and after he was placed on probation, defendant disregarded the

lessons he should have learned and returned to the costly and

debilitating practice of using illegal drugs.”                      (Id.)   Blakeney,

however,     argues    that     he     was       prejudiced    by     Dr.    Worthen’s

statements    doubting     that      he    had     completed    the    DART    program

because the prosecutor exploited it in closing argument to cast

doubt on other aspects of his life.                   The MAR court’s conclusion

that Blakeney was not prejudiced by the DART inference because

he had relapsed is unpersuasive.                 Blakeney never claimed he was

drug-free;    he   merely      attempted         to   demonstrate      that    he   had

completed the DART program in an effort to rid himself of drugs.

Although he was telling the truth about an important aspect of

his   mitigation      defense,       he    was    impugned     at    the    sentencing

proceeding as being a liar.           This was clearly prejudicial.




                                           76
      Blakeney’s       trial     counsel’s        failure      to    investigate        is

indefensible     and     led    to   a    meager      mitigation       defense:     Dr.

Worthen’s    poorly      informed        diagnosis     could     not    mitigate    the

evidence    against     Blakeney,        his    sister’s    testimony      was    but    a

small piece of the full story his family could have provided,

and the two correctional officers’ testimony paled in comparison

to that of the Deputy Sheriff.                 Trial counsel admitted that the

evidence    on   guilt    was    stacked        against     Blakeney,     which    only

increased the necessity to develop the mitigation defense that

was   readily    available      if   they       had   properly      investigated    the

case, assessed the witnesses, and presented the evidence at the

sentencing phase of the trial.                  Blakeney was practically left

defenseless at the sentencing proceeding.                      In this matter of

life or death, the Sixth Amendment certainly requires more of

counsel.    Thus, I dissent.




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