                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-13



DARRELL EUGENE STRICKLAND,

                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. Graham C. Mullen, Senior
District Judge. (3:02-cv-00033-GCM)


Argued:   May 15, 2008                     Decided:   June 25, 2008


Before WILLIAMS, Chief Judge, and MICHAEL and MOTZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Michael wrote the opinion,
in which Chief Judge Williams and Judge Motz joined.


ARGUED: James R. Glover, GLOVER & PETERSEN, PA, Chapel Hill, North
Carolina, for Appellant. Steven Franklin Bryant, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON
BRIEF:   Ann Bach Petersen, GLOVER & PETERSEN, PA, Chapel Hill,
North Carolina, for Appellant. Roy Cooper, Attorney General of
North Carolina, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Darrell    Eugene   Strickland     was     sentenced    to    death

following his conviction for the first-degree murder of Henry

Brown.   After unsuccessfully seeking post-conviction relief in

state court, Strickland filed a petition for a writ of habeas

corpus in U.S. district court.    The district court denied relief,

finding several of Strickland’s claims to be procedurally defaulted

and denying several others on the merits. We granted a certificate

of   appealability    with    respect   to     the     district        court’s

determinations (1) that Strickland was not entitled to relief on

the merits of a claim under Brady v. Maryland, 373 U.S. 83 (1963),

and (2) that Strickland had defaulted a portion of his claim that

he was denied the effective assistance of counsel during the

sentencing phase of his case.    Because we conclude that Strickland

has not established the materiality necessary for his Brady claim

nor the prejudice necessary for his ineffective assistance claim,

we affirm the district court’s denial of relief.



                                  I.

          Strickland was convicted by a North Carolina jury for the

first-degree murder of Henry Brown. In affirming the conviction on

direct appeal, the state supreme court described the circumstances

of the murder as follows:

          The State’s evidence tended to show inter alia that
     on 1 January 1995, the victim, Henry Brown, went with his

                                  2
wife, Gail Brown, and her six-year-old child to the home
of [Strickland], who lived with Sherri Jenkins and their
two-year-old son in Marshville, North Carolina.     Mrs.
Brown had formerly worked with both Ms. Jenkins and
[Strickland] at Cuddy Foods in Marshville and had been
“good friends” with Ms. Jenkins for about six years. Ms.
Jenkins had been dating [Strickland] for thirteen years,
had mothered his two-year-old son, and had been
cohabiting with [Strickland] for about six months at the
time of the murder.

     The Browns arrived at the residence of [Strickland]
and Ms. Jenkins at approximately 8:00 p.m. Mr. Brown had
been drinking but was not drunk.         Mr. Brown and
[Strickland] went into the kitchen, while Mrs. Brown and
Ms. Jenkins stayed in the living room. The children were
sent into the bedroom to play, and the adults began
drinking alcoholic beverages. Ms. Jenkins testified at
trial that they shared a marijuana joint and that all
four adults drank from a half-gallon bottle of gin. The
four adults continued drinking and talking for several
hours. During this time, a shotgun owned by [Strickland]
was passed around. Everyone was talking about shooting
it and joking about shooting each other, but there were
no serious threats. There were two shells in the gun and
no other shells in the house. Ms. Jenkins took the gun
outside and fired it once.

     At approximately 1:30 a.m., Mrs. Brown and Ms.
Jenkins were in the kitchen preparing food for everyone
to eat. The men were in the living room. Mrs. Brown
testified that, while in the kitchen, she looked into the
living room, where she saw her husband sitting on an
ottoman with his head in his hands. [Strickland] was
standing to the back and side of Mr. Brown with the gun
in his hand pointed at Mr. Brown.        Mrs. Brown saw
[Strickland]’s lips move but could not hear what he said.
She then heard the gun being fired, smelled burning
flesh, and saw her husband fall over.

     Ms. Jenkins testified that she witnessed the victim
sitting on the ottoman with [Strickland] standing behind
him. The victim was mumbling something that she could
not hear. She stepped outside to feed the cats, during
which time she heard the gun go off.       She came back
inside and saw the victim fall over. According to Ms.
Jenkins, the victim’s behavior that evening was obnoxious


                           3
and loud.   He was cursing at intervals and drinking
alcohol throughout the night.

     Immediately following the shooting, [Strickland]
left in his truck. He drove to the house of his ex-wife,
Ms. Betty Sanders, in Marshville. [Strickland] asked Ms.
Sanders to drive him in his truck to his uncle’s house in
Rockingham. At approximately 2:45 a.m., Ms. Sanders and
[Strickland] were stopped in Rockingham by Officer Poston
and Officer Grant of the Rockingham Police Department,
which had been notified to be on the lookout for
[Strickland]. Officer Grant transported [Strickland] to
the Rockingham Police Department.

     At the Police Department, after being advised of his
constitutional rights, [Strickland] spoke to Special
Agent Tony Underwood of the State Bureau of Investigation
(SBI) and Detective Bill Tucker of the Union County
Sheriff’s Department.    [Strickland] told them that he
shot Henry Brown because “he pissed me off” and because
“he   called   me   a   punk   Indian    son-of-a-bitch.”
[Strickland] said that no one else had anything to do
with the shooting. He said that he “meant to kill” the
victim. He denied that alcohol had caused him to commit
the murder. [Strickland] said that he had not planned to
kill the victim. He did however say that he had to cock
the gun in order to get it to shoot.

     Detective Easley of the Union County Sheriff’s
Department examined the crime scene during the early
morning hours of 2 January 1995. Detective Easley found
the body of Henry Brown lying on the living room floor on
its left side. Blood was coming from the victim’s nose
and mouth and a hole in the back shoulder area. There
was no weapon on or around the victim’s body. In the gun
cabinet, Detective Easley found one Ithaca twelve-gauge
pump shotgun which contained one spent Winchester “double
aught” buckshot casing in the chamber. He also found one
spent “double aught” buck-shot shell outside on the
ground about eleven inches from the front doorstep.

     Michael Gavin of the forensic firearms and tool
marks unit of the SBI laboratory tested the shotgun and
found that the gun functioned properly.     Gerald Long,
owner of Long’s Sporting Goods and Pawn Shop, testified
that he had experience in selling, firing, and repairing
Ithaca twelve-gauge pump shotguns. He testified that, in
his opinion, the Ithaca shotgun, in the hands of someone

                           4
       not experienced with it, would go off faster than any
       other shotgun on the market and is susceptible to
       accident.

State v. Strickland, 488 S.E.2d 194, 198-99 (N.C. 1997).

           A    separate   capital     sentencing   proceeding   followed

Strickland’s    conviction.       At   sentencing   a   single   statutory

aggravating factor was submitted for the jury’s consideration:

that   Strickland   “had   been   previously   convicted    of   a   felony

involving the use or threat of violence to the person.”          N.C. Gen.

Stat. § 15A-2000(e)(3).      The prosecution supported this factor by

presenting evidence of two previous felony convictions.              First,

Strickland pled guilty in 1985 to one count of assault with a

deadly weapon based on an altercation in which he sliced a large

knife wound across the back of another man (Todd Kendell). Second,

Strickland was indicted for murder based on the 1993 shooting death

of Derrick Skipper.        A jury convicted Strickland of voluntary

manslaughter.

           Strickland offered three witnesses in mitigation. First,

Dr. Mark Worthen, a psychologist, testified about an interview he

conducted with Strickland.     In that interview Strickland said that

he was drunk at the time he shot Brown, that he intended to scare

Brown rather than kill him, and that the gun went off by accident.

Strickland also told Dr. Worthen that he was a proud Indian, that

he was not crazy, and that he did not want anyone to beg for his

life. Second, Grant Davis testified that he was with Strickland at


                                       5
the time of the incident involving Todd Kendell.                          Though Davis

apparently did not see how Kendell was cut, his testimony suggested

that Kendell initiated the confrontation with Strickland by, among

other things, throwing a piece of cement through the windshield of

Strickland’s truck.             Finally, Strickland called Officer James

Clemmons to testify about his investigation into the shooting of

Derrick Skipper.        Clemmons testified that, according to witnesses,

Skipper    had    a     gun    in    his    possession         during   the    incident.

Strickland’s counsel also attempted to elicit testimony suggesting

that Skipper initiated the confrontation, but the court cut off

this line of questioning after the prosecution objected on the

ground    that   it     required     the     officer      to    recount   inadmissible

hearsay.

            Two nonstatutory mitigating factors were submitted to the

jury:     (1) that Strickland was the father of three children, and

(2) that he had great pride in his Native American heritage.                         The

statutory catch-all mitigator for “[a]ny other circumstance arising

from the evidence which the jury deems to have mitigating value”

was also submitted.            See N.C. Gen. Stat. § 15A-2000(f)(9).                  The

sentencing       jury        found    the     state’s      requested          aggravating

circumstance but did not find any circumstances in mitigation. The

jury    recommended      a    sentence      of   death,    which    the   trial    judge

imposed.




                                             6
             Strickland thereafter filed a motion for appropriate

relief (MAR) in state court.               In his MAR petition Strickland

argued, as relevant here, (1) that the prosecution violated its

duties under Brady v. Maryland, 373 U.S. 83 (1963), by failing to

disclose pretrial statements made by witness Gail Brown, and (2)

that   his    counsel     provided    ineffective      assistance     during      the

sentencing phase of his case.                  The MAR court rejected all of

Strickland’s claims.

             Strickland then filed a petition for a writ of habeas

corpus in U.S. district court.                  The district court ultimately

denied all the claims for relief in the petition.                      Strickland

appealed, and we granted a certificate of appealability with

respect to his Brady claim and the district court’s ruling that

Strickland had defaulted a portion of his claim for ineffective

assistance of counsel by not fairly presenting it to the MAR court.



                                       II.

             We   first    consider    Strickland’s       contention    that      the

prosecution violated its disclosure obligations under Brady v.

Maryland.      Three elements are necessary for a successful Brady

claim:       (1) the “evidence at issue must be favorable to the

accused,     either   because   it    is       exculpatory,   or   because   it    is

impeaching”; (2) the “evidence must have been suppressed by the

State”; and (3) the evidence must be “material,” that is, there


                                           7
must be “a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have

been different.”    Strickler v. Greene, 527 U.S. 263, 280-82 (1999)

(internal quotation marks omitted).

            Strickland focuses his Brady claim on the prosecution’s

failure to disclose a pretrial statement that the victim’s wife,

Gail Brown, made to Officer Ted Keziah.             At trial Mrs. Brown

testified that her husband (the victim) and Strickland had been

drinking during the evening of the murder but had not been fighting

or arguing. Her testimony also indicated that she did not overhear

what conversation (if any) the two men had immediately prior to the

murder.    Strickland’s   counsel   requested    that   the    prosecution

disclose any pretrial statements made by Mrs. Brown, but the

prosecution claimed that there were none.        During post-conviction

proceedings, however, the state disclosed evidence of several such

pretrial statements, including one made to Keziah.            According to

Keziah’s report, Mrs. Brown told him (Keziah) shortly after the

murder that Strickland and the victim had been “running their

mouths at one another” prior to the shooting.            J.A. 1345.     In

addition to Keziah’s report, Strickland’s claim relies on an

affidavit from Mrs. Brown, which appears to clarify the meaning of

the statement she gave to Keziah.       In the affidavit Brown said that

about ten minutes before the shooting she heard the two men

exchange   racial   slurs,   including    “Indian   son-of-a-bitch”    and


                                    8
“nigger.”       She also said that she “did not hear everything the two

[men] said just before the shooting.”                    J.A. 1490.        Because the

information contained in the affidavit was not considered by the

state MAR court, we must make an independent assessment of the

merits of Strickland’s Brady claim.                See Monroe v. Angelone, 323

F.3d 286, 298-99 (4th Cir. 2003).

               We agree with the district court that Strickland’s Brady

claim lacks merit.          Even though Mrs. Brown’s statement to Keziah

(as supplemented by her affidavit) contradicts the testimony she

gave at trial, Strickland is unable to satisfy the third Brady

element because he has not established “a reasonable probability

that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.”                 Strickler, 527 U.S. at

280.     While Mrs. Brown testified at trial that she did not hear

racial    slurs,    her     testimony     also   indicated    that     she    did   not

overhear everything that transpired in the moments before the

shooting. As the district court recognized, Mrs. Brown’s affidavit

is consistent with her trial testimony in that she expressly says

in the affidavit that she did not hear the conversation between the

men immediately prior to shooting.               Inasmuch as Mrs. Brown did not

claim    at    trial   to    have   overheard      the   entirety     of    the   men’s

conversation,       the     jury    had   little    reason    to    disbelieve      the

explanation that Strickland gave to the police shortly after the

murder:       that he shot the victim in response to the victim calling


                                           9
him a “punk Indian son-of-a-bitch.”              Because the jury knew about

this racial slur from Strickland’s confession, it appears quite

unlikely that the disclosure of Brown’s statement would have

altered the jury’s decision to convict Strickland of first-degree

murder.      For these reasons, we agree with the district court that

Strickland is not entitled to relief on his Brady claim.



                                        III.

              The second issue before us relates to Strickland’s claim

that    he   was   denied    his     Sixth    Amendment    right    to   effective

assistance of counsel during the sentencing phase of his trial.

Strickland has supported this claim by arguing that his counsel

should have introduced additional evidence in mitigation, including

evidence     regarding      the    circumstances    surrounding      the   Skipper

shooting. Specifically, Strickland argues that counsel should have

elicited testimony from Doris Perkins Lee, an eyewitness to the

shooting, who would have testified that Skipper fired an initial

shot at Strickland, hitting him in the thigh.                The district court

denied several aspects of Strickland’s ineffective assistance claim

on the merits, but it held that the portion of his claim relating

to     his   counsel’s      failure    to     present     Lee’s    testimony   was

procedurally defaulted because Strickland had not adequately raised

it in his MAR petition.           We granted a certificate of appealability

with respect to “the district court’s ruling that [Strickland]’s


                                         10
ineffective assistance claim regarding counsel’s failure to present

the testimony of Doris Perkins Lee was procedurally defaulted.”

          Upon        full    review    of        the     issue,   we   conclude    that

Strickland is not entitled to relief on his ineffective assistance

claim even assuming that his argument regarding Lee’s testimony was

properly presented to the state MAR court.                         Because the record

makes clear that Strickland’s ineffective assistance claim lacks

merit, we need not resolve the procedural default issue.                      Eaton v.

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

          To succeed on a claim that he received ineffective

assistance of counsel at sentencing, Strickland must establish two

elements. First, he must show that his counsel’s performance “fell

below an objective standard of reasonableness.”                         Strickland v.

Washington,     466    U.S.    668,    687-88        (1984)).       Second,   he    must

establish prejudice by showing “a reasonable probability . . .

that, but for the deficient performance, he would not have been

sentenced to death.”          Buckner v. Polk, 453 F.3d 195, 201 (4th Cir.

2006).   When a petitioner alleges, as Strickland does here, that

his   counsel    should       have     put        forth    additional    evidence     in

mitigation, we assess prejudice by “reweigh[ing] the evidence in

aggravation against the totality of available mitigating evidence.”

Wiggins v. Smith, 539 U.S. 510, 534 (2003).                    Because the state MAR

court did not address the merits of Strickland’s ineffective

assistance claim with respect to his counsel’s failure to elicit


                                             11
testimony from Doris Perkins Lee, our review is de novo.                        See

Weeks v. Angelone, 176 F.3d 249, 258 (4th Cir. 1999) (“When a

petitioner has properly presented a claim to the state court but

the state court has not adjudicated the claim on the merits,

however, our review of questions of law and mixed questions of law

and fact is de novo.”).

           Strickland cannot satisfy the prejudice element, even if

his counsel was deficient in failing to present testimony from

Doris   Lee.     After     reweighing      the    totality   of    the    mitigating

evidence   (including      Lee’s     testimony)       against     the    aggravating

evidence, we cannot conclude that there is a reasonable probability

that the jury would have returned a sentence other than death.                    In

our   view,    the    addition      of    Lee’s   testimony       would   not   have

significantly altered the balance of mitigating and aggravating

evidence that was presented at sentencing. For instance, while the

sentencing jury did not have all the details of the Skipper

incident, it did know that Strickland had been convicted only of

voluntary manslaughter rather than a more serious charge such as

first-degree murder.       Indeed, despite hearing testimony from Doris

Lee, the earlier jury at the Skipper trial “rejected any theory of

self-defense”        and    found        Strickland     guilty      of     voluntary

manslaughter. State v. Strickland, 488 S.E.2d at 205. Introducing

Lee’s testimony before the sentencing jury in Strickland’s capital

case would likely have prompted the state to introduce rebuttal


                                           12
evidence   from   the   Skipper   trial,   which   “tended   to    show   that

[Strickland] . . . shot Mr. Skipper several times, including firing

the gun while standing directly over Mr. Skipper after he had

fallen in the street.”     Strickland v. State, 488 S.E.2d at 205.          We

agree with the district court, which noted when analyzing one of

Strickland’s related claims, that “evidence that [Skipper,] the

victim in the 1993 shooting[,] may have shot at and even wounded

[Strickland] would not have mitigated” these more damaging details

of Strickland’s actions during the Skipper shooting.              J.A. 1406.

           Moreover, the aggravating evidence against Strickland

extended beyond the Skipper incident to his involvement in the

wounding of Todd Kendell.          Additional evidence regarding the

circumstances of the Skipper shooting would not have offset the

aggravating effect of the Kendell incident.         As the district court

explained:

     [S]uch evidence [regarding the circumstances of the
     Skipper shooting] would have done nothing to mitigate the
     damaging evidence that the State introduced to prove
     [Strickland’s] other previous felony conviction involving
     the use or threat of violence - the stabbing of Todd
     Kendall [sic]. The State’s evidence showed that Kendall
     was unarmed and that [Strickland] attempted to slash
     Kendall across the stomach with a knife. When Kendall
     turned and attempted to run, [Strickland] slashed him
     down the back, opening him from shoulder to belt.
     Kendall’s wife testified that when she saw the wound she
     was certain her husband was dead and that it took over
     800 stitches to repair his back.

J.A. 1406-07.




                                    13
           In sum, we cannot conclude that a reasonable probability

exists that the sentencing jury would have returned a different

sentence   if    Lee’s   testimony    had    been   presented.    Therefore,

Strickland’s claim for relief based on ineffective assistance of

counsel is without merit.

                                     * * *

           For    the    reasons   stated    above,   the   judgment   of   the

district court is

                                                                   AFFIRMED.




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