PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN THOMAS NOLAND, JR.,
Petitioner-Appellee,

v.
                                                                    No. 97-10
JAMES B. FRENCH, Warden, Central
Prison, Raleigh, North Carolina,
Respondent-Appellant.

JOHN THOMAS NOLAND, JR.,
Petitioner-Appellant,

v.
                                                                    No. 97-11
JAMES B. FRENCH, Warden, Central
Prison, Raleigh, North Carolina,
Respondent-Appellee.

Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CA-88-217-3-MU)

Argued: October 28, 1997

Decided: January 7, 1998

Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed in part and reversed in part by published opinion. Judge
Ervin wrote the opinion, in which Judge Hamilton and Judge Luttig
joined.

_________________________________________________________________
COUNSEL

ARGUED: Barry Steven McNeill, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellant. James Patrick Cooney, III, KENNEDY,
COVINGTON, LOBDELL & HICKMAN, L.L.P., Charlotte, North
Carolina, for Appellee. ON BRIEF: Michael F. Easley, Attorney
General of North Carolina, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellant.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

John Thomas Noland filed a petition seeking a writ of habeas cor-
pus pursuant to 28 U.S.C. § 2254 (1994). The district court granted
Noland's petition with regard to his sentence, ordering the State of
North Carolina to conduct a new sentencing hearing. It ruled that the
jury was improperly instructed at the sentencing phase of Noland's
trial as to its consideration of mitigating circumstances, in violation
of McKoy v. North Carolina, 494 U.S. 433 (1990). The district court
rejected all of Noland's other claims for relief. The state appeals the
issuance of the writ as to Noland's sentence and Noland cross-appeals
on four issues rejected by the district court that involve both the guilt-
innocence and penalty phases of his trial. Because we believe the dis-
trict court wrongly decided the McKoy issue, the writ should have
been denied and we therefore reverse in part and affirm in part.

I.

Noland and Susan Milton Noland were married for nine years prior
to their separation on March 3, 1981. The couple had two daughters
and resided in Charlotte, North Carolina for the last eight years of
their marriage. In the weeks immediately after their separation,
Noland visited Susan and his daughters at least once a week and
talked on the phone with them frequently. Noland constantly begged
Susan to return to him. Later, he began making threats regarding their
property.

                     2
During this time, Noland's parents arranged for him to receive psy-
chiatric treatment. A staff psychiatrist at the Mecklenburg Mental
Health Center, Dr. Reback, evaluated Noland in April 1981 and rec-
ommended partial hospitalization at the Center. By May 1981, Dr.
Reback was of the opinion that Noland was mentally ill and danger-
ous, and needed full, in-patient hospitalization. On May 21, 1981, a
North Carolina state court ordered Noland committed to a state hospi-
tal, finding him to be "mentally ill and dangerous to himself" by clear
and convincing evidence. The record does not indicate when Noland
was released from the hospital.

In June 1981, Susan moved with the children to California to live
with her older sister. She informed Noland by letter where she and the
children were living. For the next several months, Noland maintained
ongoing telephone contact with them. After approximately four
months, Susan and the children moved again but did not give Noland
the new address or phone number. She maintained periodic contact
with Noland through her sister's telephone.

Every time Susan and Noland talked by phone, he asked her when
she was coming back to Charlotte. She always replied that she did not
know. In November 1981, Noland began making threats against
Susan's family. Noland told her that he would kill her father, mother,
and sister if she did not return to Charlotte with the children before
Christmas. He said, "I'm going to kill Cindy[Susan's sister] first
because she means more to you than anything. I'm going to kill your
daddy and make your momma watch." Noland further specified that
he would place a "gun between your daddy's eyes and blow his head
off." Susan and the children did not return to Charlotte.

On February 5, 1982, Noland telephoned Susan and told her that
he would kill her family if she did not return to Charlotte within two
weeks. The following day, Noland called again and demanded her
decision immediately. When Susan answered that she did not want to
take the children out of school, Noland responded,"Well, you will
come back; you'll have to come back, because I am going to kill your
family."

On the evening of February 21, 1982, Cindy Milton (Susan's sis-
ter), was watching television with two friends in the living room of

                    3
her home in Charlotte. This house was the same one that had previ-
ously been occupied by Noland and Susan. Noland entered the house
through the back door and chased Cindy into the laundry room yell-
ing, "I told you not to get involved." As Cindy huddled behind the
laundry room door, Noland shot Cindy in the back of the head, killing
her.

Directly across a vacant lot from Cindy's house lived her parents,
Mary and Troy Milton. Noland left Cindy's house and walked across
the street to her parents' home. Noland entered a bedroom and shot
Troy Milton in the face while he slept, killing him. Noland pushed the
door to a second bedroom open and told Mary Milton,"I told you I
was going to kill all three of you. And, I've already killed Cindy and
your old man. I'm going to get you." Mary lunged at Noland with a
bar stool as he shot her at pointblank range, inflicting a nonlethal
wound. She fell to the floor and remained very still. After Noland left,
Mary phoned Cindy's house and discovered from her guests that
Cindy had been shot; Mary then called the Charlotte Police Depart-
ment.

Charlotte police officers found Noland within one hour after the
shootings. He was taken to the police department and properly
advised of his Miranda rights. Noland invoked his right to have an
attorney present during any further questioning by the officers. Later
that night, Noland made the following unsolicited and voluntary com-
ment to a police officer: "Man, I just killed two people, man. Why are
you being so nice to me?"

In October 1982, a jury found Noland guilty of first degree murder
in the deaths of Cindy and Troy Milton. The jury also returned sen-
tences of death for both murders. The judgments were affirmed by the
North Carolina Supreme Court. State v. Noland , 320 S.E.2d 642 (N.C.
1984), cert. denied, 469 U.S. 1230 (1985). Noland sought state collat-
eral relief by filing a motion for appropriate relief in Mecklenburg
County Superior Court. Following an evidentiary hearing, the court
denied relief. Noland's petition for a writ of certiorari to the North
Carolina Supreme Court was denied. State v. Noland, 361 S.E.2d 85
(N.C. 1987), cert. denied, 485 U.S. 943 (1988).

In August 1988, Noland filed a petition for writ of habeas corpus
in the U.S. District Court for the Western District of North Carolina.

                    4
The district court conditionally granted the writ as to both convictions
and sentences. Noland v. Dixon, 831 F. Supp. 490 (W.D.N.C. 1993).
We vacated this judgment on the ground that the district court erred
in not allowing the state to amend its pleadings to raise Teague as an
affirmative defense to all of Noland's claims. Noland v. Dixon, 53
F.3d 328, 1995 WL 253149 (4th Cir. May 1, 1995) (unpublished
opinion). We remanded the case to the district court with instructions
"to allow the state to amend its answer to raise Teague as an affirma-
tive defense to all of Noland's claims, and address the claims raised
by Noland in his petition on a clean slate." Id. at *3.

On remand, the district court ruled on nine issues, five of which are
relevant to this appeal. First, the district court ruled in favor of Noland
on his claim that the jury instructions in the sentencing phase
impaired the jury's ability to consider mitigating factors in violation
of McKoy v. North Carolina, 494 U.S. 433 (1990). On four other
claims, the district court denied Noland's petition: 1) that the jury
instructions on insanity violated due process by relieving the State of
its burden to prove the element of mens rea for murder beyond a rea-
sonable doubt; 2) that the State used evidence of Noland's invocation
of his Miranda rights to rebut his defense of insanity; 3) that Noland's
counsel was ineffective at both the guilt-innocence and penalty phases
of his trial; and 4) that Noland was incompetent to stand trial. On the
basis of the McKoy violation, the district court issued the writ as to
Noland's sentence, ordering the State to resentence him. The parties
cross-appeal the district court's decisions on these five issues and we
consider them seriatim.

II.

As a preliminary matter, we must address the State's argument
regarding the appropriate standard of review for this case. The
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
110 Stat. 1214, was signed into law on April 24, 1996 and amended
28 U.S.C. § 2254 to change the standard by which we review the
habeas petition of a person in custody pursuant to the judgment of a
state court. Under pre-AEDPA law, we review a state court's determi-
nations of questions of law and mixed questions of law and fact de
novo. Howard v. Moore, No. 95-4017, slip op. at 8 (4th Cir. Dec. 9,
1997) (en banc); Savino v. Murray, 82 F.3d 593, 598 (4th Cir. 1996),

                     5
cert. denied, 117 S. Ct. 1. Under § 2254 as amended by the AEDPA,
the reviewing court cannot grant the writ unless the state court adjudi-
cation "resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States." 110 Stat. 1214,
1219, 28 U.S.C.A. § 2254(d)(1) (West Supp. 1997). The parties
briefed the issue of whether this new standard of review should be
retroactively applied to petitions pending in the federal courts prior to
passage of the AEDPA.

After the parties filed their briefs, the Supreme Court decided
Lindh v. Murphy, 117 S. Ct. 2059 (1997), holding that the amend-
ments to Chapter 153 of Title 28, of which the new standard of review
is a part, should not be applied to cases pending at the time the
AEDPA took effect. At oral argument in the instant case, counsel for
the State did not waive its argument that the new standard of review
should apply, distinguishing Lindh as a non-capital case. Nothing in
Lindh supports such an argument and this court has already held that
Lindh requires us to use the pre-AEDPA standard of review in a capi-
tal case pending in federal court at the time the AEDPA was signed
into law. See Howard, slip op. at 2-3. We therefore review questions
of law and mixed questions of law and fact de novo. Any factual find-
ings by the State court are presumed to be correct as long as they were
made after a full, fair, and adequate hearing on the merits. See 28
U.S.C.A. § 2254(d) (West 1994) (pre-AEDPA).

III.

In McKoy v. North Carolina, 494 U.S. 433 (1990), the Supreme
Court struck down the North Carolina practice that required a capital
sentencing jury to find mitigating circumstances unanimously before
they could be considered for the purpose of sentencing. The Court
held that the unanimity requirement limited the individual juror's con-
sideration of mitigating circumstances and was therefore unconstitu-
tional. Noland claims, and the district court held, that the sentencing
instructions at Noland's trial constituted McKoy error. In determining
whether the jury instructions violated McKoy in Noland's trial, the
question is "whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way that prevents the consider-

                     6
ation of constitutionally relevant evidence." Boyde v. California, 494
U.S. 370, 380 (1990).

In this case, the trial court did not give the explicit unanimity
instruction on mitigating circumstances that was struck down by the
Court in McKoy. The judge instructed the jury to answer four issues
in reaching its decision at the penalty phase: 1) whether the jury unan-
imously found, beyond a reasonable doubt, the existence of the aggra-
vating circumstance; 2) whether the jury unanimously found, beyond
a reasonable doubt, that the aggravating circumstance was sufficiently
substantial to call for imposition of the death penalty; 3) whether the
jury found one or more mitigating circumstances; and 4) whether the
jury unanimously found, beyond a reasonable doubt, that the aggra-
vating circumstances outweighed the mitigating circumstances. This
portion of the instructions has been held on several occasions by this
court not to violate McKoy. See Smith v. Dixon, 14 F.3d 956, 981 n.15
(4th Cir. 1994) (en banc); Lawson v. Dixon, 3 F.3d 743, 754 (4th Cir.
1993); Maynard v. Dixon, 943 F.2d 407, 418-20 (4th Cir. 1991).

In addition to the proper instructions, however, the trial court also
gave a general unanimity instruction. The instruction was "general"
in the sense that it was not directed to any particular issue or question
to be decided by the jury on its verdict form. Just before releasing the
jury to begin its deliberations at the penalty phase, the trial court
instructed the jury: "After you have reached a unanimous decision as
to each issue . . . have your Foreman mark the appropriate place or
places on the issues and recommendations forms." J.A. at 1542
(emphasis added). Noland argues that this comment by the trial court
created a reasonable likelihood that the jury believed that it must have
found any mitigating circumstances unanimously. We disagree.

The trial court's "general unanimity" comment did not occur during
its careful explanation of the verdict form, but rather as a supplemen-
tal instruction just before the jurors retired to deliberate. The trial
court's remark could not reasonably have been understood as a sub-
stantive instruction of law since it came after the explanation of the
specific and detailed instructions contained on the verdict form. Prior
to the general unanimity instruction, the judge read and explained the
four issues on the verdict form while each juror followed along with
his or her own written copy of the form. It was entirely clear from this

                     7
portion of the instructions that three of the four issues on the verdict
form required juror unanimity while one, the mitigating factor ques-
tion, did not. The judge's final comment did not create a reasonable
probability that the jury would have disregarded the previous clear
and precise instructions of the trial court. When read in its proper con-
text, the trial court was merely describing the procedure by which the
jury foreman was to record the verdict, and not giving a substantive
instruction on the unanimity requirement.

Noland argues that the North Carolina Supreme Court's decision in
State v. McNeil, 395 S.E.2d 106 (N.C. 1990), supports the finding of
a McKoy violation. In McNeil, the court ruled that general references
to jury unanimity could constitute a McKoy violation, even when the
court's explicit instructions on mitigating circumstances did not
require unanimity. In McNeil, while the verdict form and accompany-
ing instructions contained no express unanimity requirement as to
mitigating factors, the trial court made three general references that
the verdict required unanimity. See id. at 109 ("[T]he trial court stated
at least three times that the jury's answer to all the issues must be
unanimous."). The distinction between McNeil and the instant case is
obvious. While three general references to unanimity, which contra-
dict the verdict form's silence on unanimity as to mitigating factors,
might create a reasonable probability that the jury would assume it
needed to find mitigating circumstances unanimously, one such refer-
ence in the present context does not.

The explicit substantive instructions and the verdict form made it
clear that the jury need not have been unanimous in its determination
of mitigating circumstances. The trial court's unanimity comment
during its description of how the foreman was to fill out the verdict
form does not rise to the level of a McKoy violation, and the district
court erred in so holding. Because we find that the judge's comment
regarding unanimity does not constitute error under McKoy, we have
no reason to consider the other questions regarding this issue, which
were briefed by the parties in considerable detail.

IV.

In his cross-appeal, Noland argues that the district court erred in
four of its rulings on his habeas petition. We find no merit in
Noland's arguments.

                     8
A.

First, Noland argues that the judge's instructions at the guilt-
innocence phase prevented the jury from considering evidence of
Noland's mental illness in determining whether he possessed the
proper intent for first-degree murder. A jury in North Carolina may
consider evidence of mental illness, not only in its decision on the
affirmative defense of insanity, but also on the essential element of
mens rea. "Under North Carolina law, the existence of mental illness
can negate the possibility of intent, deliberation, and premeditation."
Cooper v. North Carolina, 702 F.2d 481, 484 (4th Cir. 1983). During
jury instructions in the guilt-innocence phase of Noland's trial, the
judge informed the jurors that they must find all the essential ele-
ments of murder before considering Noland's proffered affirmative
defense of insanity.

           You will consider [evidence of insanity] only if you find
          that the State has proved, beyond a reasonable doubt, each
          of the offenses, each of the elements of the offenses of mur-
          der or second-degree murder.

           That is to say, you will consider this evidence only after
          you have considered and deliberated and reached a verdict
          of guilty in one of the charges . . . .

           After or if you have reach[ed] that verdict, then you will
          consider evidence with regard to the mental state of the
          defendant.

J.A. at 326.

Noland's argument that this instruction constitutes error relies on
our decision in Cooper v. North Carolina, 702 F.2d 481, 484 (4th Cir.
1983). In Cooper, a habeas petitioner argued that the judge's failure
"specifically to instruct the jury that it should consider mental illness
evidence in connection with the state's proof of specific intent, pre-
meditation, and deliberation, . . . put the burden on him of demon-
strating, through the insanity defense, the absence of intent." Id. at
484. Cooper rejected the argument that failure to include the prof-

                     9
fered instruction misled the jury into thinking that it could consider
mental illness evidence with respect to a defense of insanity "only in
that regard," and not with respect to intent, premeditation, and delib-
eration. Id. at 485.

Noland argues that, unlike Cooper, this is a case in which the jury
was explicitly told that it could not consider evidence of mental illness
when it was determining his ability to form the requisite intent for
first-degree murder. Although Noland attempts to distinguish Cooper
on this basis, his argument cannot meaningfully be distinguished from
Cooper's claim. Noland, like Cooper, relies on the risk that a jury
might not consider relevant evidence based on the judge's instruction
that it must decide all the elements of murder before it can consider
whether the defendant was legally insane.

This interpretation of these instructions was specifically rejected by
the North Carolina Supreme Court in State v. Mize, 337 S.E.2d 562
(N.C. 1985). Mize rejected an argument that these same instructions
prohibited a jury from considering evidence of insanity as it related
to their deliberations on premeditation, deliberation and malice.
The court in Mize reasoned that the instructions at issue "merely
reflect[ed] the order of the issues which would be submitted to the
jury" and did not direct the jury to disregard evidence of insanity as
it related to the elements of premeditation, deliberation, and malice.
Id. at 567 (emphasis added). Mize relied on previous decisions which
held that a defendant is not entitled to an affirmative instruction that
the jury must consider evidence of his mental condition when deter-
mining whether the defendant acted with premeditation, deliberation
and malice. Id. The court also reasoned that the trial court's clear
instructions that the intent elements must be found beyond a reason-
able doubt eviscerated any danger that the jury might not consider
evidence of insanity when determining these elements. Id.

The district court held that Noland's claim of improper instructions
at the guilt-innocence phase was barred by the principles set forth in
Teague v. Lane, 489 U.S. 288 (1989), and we agree. Teague holds
that "habeas corpus cannot be used as a vehicle to create new consti-
tutional rules of criminal procedure." Teague , 489 U.S. at 316. A case
announces a new rule if the outcome "was not dictated by precedent
existing at the time the defendant's conviction became final." Id. at

                    10
301 (emphasis in original); O'Dell v. Netherland , 95 F.3d 1214, 1223-
24 (4th Cir. 1996) (en banc) (new rule test is "whether it would have
been objectively unreasonable, under the law existing at that time, for
a judge to reach a contrary result to that subsequently reached").

Read together, Cooper and Mize demonstrate not only that
Noland's claim is not dictated by existing precedent, but that existing
precedent is squarely on point against Noland's argument. Contrary
to Noland's assertions, Leland v. Oregon, 343 U.S. 790 (1952), and
Patterson v. New York, 432 U.S. 197 (1977), do not dictate the resolu-
tion of this issue. Those cases decided that states did not violate the
Due Process Clause of the Fourteenth Amendment by requiring crimi-
nal defendants to prove affirmative defenses. They did not address the
question at issue in this case: whether the judge's instructions created
a risk that the jury would not consider all relevant evidence in its
determination of the essential elements of a crime.

Were we to hold that the instructions at issue deprived Noland of
his right to due process, we would create a new rule, which is forbid-
den by Teague. Neither of the two exceptions to Teague, see Teague,
489 U.S. at 307-10, applies to Noland's claim: this rule would not
place certain conduct beyond the power of the law-making authority
to proscribe, nor would it constitute a watershed rule of criminal pro-
cedure. For these reasons, we find that this claim by Noland is barred
by Teague.

B.

Second, Noland claims that the prosecution used his post-arrest
invocation of Miranda rights to rebut his affirmative defense of insan-
ity, in violation of Doyle v. Ohio, 426 U.S. 610 (1976), and
Wainwright v. Greenfield, 474 U.S. 284 (1986). The district court
held that the prosecutor's actions during direct examination of two
witnesses and closing argument constituted Greenfield error, but held
that this error was harmless. See J.A. at 1350-51. We find no
Greenfield error in the first place.

The State twice elicited testimony from police officers that Noland
understood his Miranda rights and exercised them. But these com-
ments were in the context of the officers' narratives regarding

                    11
Noland's apprehension and arrest. Defense counsel did not object at
trial, and the prosecutor's questions did not in any way draw attention
to Noland's silence or invocation of his right to an attorney. Although
no Fourth Circuit case has directly addressed the issue, other circuits
have held that mere mention of a defendant's exercise of Miranda
rights is not per se prohibited; rather, a Greenfield violation depends
on "the particular use to which the post-arrest silence is being put."
Lindgren v. Lane, 925 F.2d 198, 202 (7th Cir. 1991); see also Jones
v. Stotts, 59 F.3d 143, 146 (10th Cir. 1995) (holding that "it is the
prosecutor's exploitation of a defendant's exercise of his right to
silence which is prohibited"); United States v. Stubbs, 944 F.2d 828,
835 (11th Cir. 1991) (finding no Greenfield violation "when the gov-
ernment does not specifically and expressly attempt to use . . . the
improper comment to impeach the defendant"). Greenfield "does not
impose a prima facie bar against any mention whatsoever of a defen-
dant's right to request counsel, but instead guards against the exploi-
tation of that constitutional right by the prosecutor." Lindgren, 925
F.2d at 202.

Contrary to Noland's assertion, the prosecutor did not use his clos-
ing argument to suggest that Noland's invocation of Miranda rights
rebutted evidence of insanity. The prosecutor mentioned Miranda to
remind jurors of the timing of the event, but argued that Noland's vol-
untary statement ("Why are you being so nice to me when I just killed
two people?") rebutted his claim that he was unable to appreciate the
wrongfulness of his actions. Reading the prosecutor's argument in its
proper context clearly shows that his argument related to Noland's
voluntary statement, and not to his mention of Miranda. See J.A. at
1415-16. Indeed, it would have made little sense for the prosecutor to
have argued that Noland's invocation of his right to a lawyer rebutted
evidence of insanity when much more inculpatory and direct evidence
-- Noland's curiosity that he was not being mistreated by the police
after having killed two people -- was available. Because trial testi-
mony only made passing reference to Miranda, and the prosecutor did
not specifically exploit Noland's exercise of his Miranda rights, we
find no Greenfield error.

C.

Third, Noland claims that his trial counsel rendered ineffective
assistance at both the guilt-innocence and penalty phases of trial in

                    12
violation of the Sixth Amendment. We agree with the district court
that this claim has no merit.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court established a two-prong test for determining whether assistance
of counsel was so defective as to require reversal of a conviction or
sentence. First, the defendant must establish that counsel's perfor-
mance was deficient in that it fell below an objective standard of rea-
sonableness under prevailing professional norms. Id. at 687-88.
Second, he must establish that the deficient performance prejudiced
the defense to the extent that he was deprived of a fair trial. Id. at 687.

Initially, Noland contends that he was not afforded a fair and ade-
quate hearing in state post-conviction because the state court refused
to allow an attorney to testify as an expert as to what constitutes the
objective standard of reasonable competence for a lawyer trying a
death penalty case. We agree with the district court that when an
expert witness is not in a better position than the fact finder to render
an opinion on a matter, it is not error to exclude that witness' testi-
mony. See J.A. at 1353-54. Under North Carolina law, the trial court
is the finder of fact in a motion for appropriate relief. See N.C. Gen.
Stat. § 15A-1413 (1997). Noland's expert was in no better position
than the trial court judge, who had tried a number of capital cases,
J.A. at 390, to explain the general standard of practice and to assess
the adequacy of Noland's trial counsel. Noland was therefore not
prejudiced in his state court hearing, and is not entitled to remand for
further factual development by the district court.

1. Guilt-Innocence Phase

In the district court, Noland argued that four errors by trial counsel
fell below Strickland's objective standard of reasonable performance.
J.A. at 1360-62. These issues can be reduced essentially to two con-
tentions: 1) trial counsel failed to prepare an adequate insanity
defense, and 2) trial counsel failed to challenge Noland's capacity to
stand trial.

As to counsel's preparation for an insanity defense, the most seri-
ous allegation by Noland is that the defense presented no expert wit-
ness to testify that he was insane at the time of the murders. The

                     13
prosecution relied on this lack of evidence in its closing argument to
the jury. See J.A. at 1406. Noland claims that failure to present an
expert to testify that he was legally insane fell below reasonable stan-
dards of professional competence.

The decision not to find such an expert, however, was a deliberate
trial strategy by defense counsel. The record indicates that defense
counsel had recently been "burned" in other trials by relying on expert
witnesses who were derided by prosecutors as the"swami from New
York" and the "shrink from California." J.A. at 270. Noland's lawyers
petitioned the trial court to appoint a psychiatrist to determine both
his competency to stand trial and his mental state at the time of the
crimes. See J.A. at 268-69. Dr. Billy Royal, a psychiatrist on staff at
a state mental hospital, evaluated Noland but was unable to form an
opinion as to his sanity at the time of the crimes. Defense counsel
presented the testimony of Dr. Royal at trial, who described Noland's
history of mental illness and his mental state at the time the crimes
occurred. Defense counsel relied on this testimony and argued to the
jury that it was their responsibility, not that of an expert, to determine
whether Noland was legally insane. Strickland counsels that trial law-
yers must have wide latitude in making tactical decisions. Strickland,
466 U.S. at 689. Defense counsels' request for a psychiatrist and use
of Dr. Royal at trial suggest that their efforts were within the range
of reasonable professional conduct.

Second, Noland argues that his counsel was ineffective for not ask-
ing the court to reevaluate his competency during the trial. Noland
points out that defense counsel at trial did not"feel comfortable" pre-
dicting Noland's behavior. See Appellee's Br. (filed July 21, 1997) at
41. Noland argues that this disquietude would have compelled a rea-
sonable lawyer to interrupt the proceedings and challenge Noland's
competency to stand trial. However, we find this evidence insufficient
to overcome the "strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance."
Strickland, 668 U.S. at 689. In sum, Noland's counsel rendered effec-
tive assistance at the guilt-innocence phase of the trial.

2. Penalty Phase

In the district court, Noland presented 11 instances of what he
alleged were errors by his trial counsel at the penalty phase that sat-

                     14
isfy Strickland's test for ineffective assistance. J.A. at 1354-55.
Although Noland does not specifically enumerate his contentions on
appeal, they can be grouped into three colorable issues: 1) that
defense counsel presented no mitigating evidence and was unprepared
at the sentencing phase; 2) that defense counsel did not consult with
Noland in their decision not to present evidence at the sentencing
phase; and 3) that defense counsel opened the door for the prosecu-
tion to argue that his crime was especially heinous, atrocious, or cruel.

Although several witnesses were prepared to testify on Noland's
behalf at the sentencing phase, his trial counsel decided not to present
their testimony to the jury. Noland's counsel presented no evidence
at the sentencing phase; the sentencing phase consisted solely in the
arguments of counsel. The failure to present mitigating evidence,
however, is not per se violative of Strickland's performance prong.
See Turner v. Williams, 35 F.3d 872, 900-03 (4th Cir. 1994),
overruled on other grounds, O'Dell v. Netherland, 95 F.3d 1214 (4th
Cir. 1996).

This decision not to present mitigating evidence did not violate
Noland's right to effective counsel. First, Noland presented much of
his mitigating evidence during the guilt-innocence phase: Noland's
mother and sister both testified as to his love for his children and pre-
vious good relationship with the victims, and Dr. Royal testified as
to Noland's mental disorders. Had these witnesses testified again,
their testimony would have been cumulative. Second, while Noland
points out that several witnesses were prepared to testify at the pen-
alty phase, he does not indicate how their testimony would have been
different from the evidence already presented at the guilt-innocence
phase. Trial counsel cannot be faulted for deciding not to present wit-
nesses whose testimony would only reiterate what had already been
presented during the guilt phase of the trial. We agree with the district
court that trial counsel's decision not to present mitigating evidence
was sound trial strategy and therefore within the objective standard of
reasonable performance required by Strickland .

Second, Noland argues that counsel was ineffective for failing to
discuss with him the decision not to present mitigating evidence.
Counsel has a duty to keep her client informed of important develop-
ments in the trial and "to consult with the defendant on important

                     15
issues." Strickland, 466 U.S. at 688. Noland's counsel performed that
duty in this case. It appears from the record that counsel informed
Noland of their decision not to present mitigating evidence at the pen-
alty phase. J.A. at 278. Noland was also aware of his right to testify
at the penalty phase, but when informed by counsel that they did not
intend to present evidence, Noland did not disagree or ask any ques-
tions. J.A. at 278. Trial counsel's actions in this respect did not violate
Noland's right to effective counsel under Strickland.

Finally, Noland argues that his counsel erred by submitting the
absence of the "especially heinous, atrocious, or cruel" (HAC) aggra-
vating factor as a mitigating factor, opening the door for the prosecu-
tion to argue that Noland's crime was especially heinous, atrocious,
or cruel. Prior to sentencing, defense counsel had successfully argued
to the judge that the crimes were not sufficiently heinous, atrocious,
or cruel for the jury to consider the HAC aggravating factor. But in
its list of explicit mitigating factors to be submitted to the jury,
defense counsel inexplicably included a statement that Noland's
crime was not especially heinous, atrocious, or cruel, thereby opening
the door for the prosecution to argue this issue.

When it is possible to resolve a Strickland claim on the prejudice
prong, we may do so without deciding whether counsel's conduct was
outside the range of reasonable competence. See Strickland, 466 U.S.
at 697. In this case, whether or not counsel's decision was outside the
range of reasonable competence, there is no reasonable probability
that but for this alleged error the result would have been different.
Whatever prejudice could have occurred as a result of counsel's deci-
sion apparently did not; the prosecutor did not emphasize the espe-
cially heinous, atrocious, or cruel nature of this crime at closing
argument. Also, the absence of the HAC aggravating factor was only
one of 17 mitigating factors submitted to the jury. There is simply no
reasonable probability that had it not been submitted, the jury would
have rendered a different verdict.

D.

Finally, Noland argues that although a pre-trial examination found
him competent to stand trial, see J.A. at 269, he became incompetent
during the course of trial and his conviction and sentence therefore

                     16
violated his right to due process of law. The district court found that
Noland was provided a full and fair hearing on this issue in his state
post-conviction attack, and that the state court's finding was pre-
sumed to be correct under 28 U.S.C.A. § 2254(d) (West 1994) (pre-
AEDPA).

At the post-conviction hearing, the state court judge heard testi-
mony from Noland and his trial counsel that Noland was incompetent
to stand trial. The state court also considered Noland's relevant men-
tal health records and medical evaluations. From this information, the
state court judge made a written factual finding that Noland "failed
to establish that at the time of his trial he was . . . unable to under-
stand the nature and object of the proceedings against him, to compre-
hend his own situation with reference to them, or to assist in his own
defense." J.A. at 261. The state court's consideration of this matter
adequately developed the material facts and provided Noland a full
and fair hearing, and is therefore presumed to be correct under
§ 2254(d), notwithstanding Noland's argument that the state court did
not consider the affidavit of a psychiatrist who evaluated Noland after
the post-conviction hearing. See Appellee's Br. (filed July 21, 1997)
at 49.

V.

For the reasons articulated above, the district court erred when it
granted Noland's petition and ordered the State to resentence him.
The writ should have been denied as to all of Noland's claims. The
district court's order granting the writ is vacated and the matter is
remanded to the district court for the entry of an order denying the
writ in its entirety.

REVERSED IN PART AND AFFIRMED IN PART

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