                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-12


CERRON THOMAS HOOKS,

                Petitioner - Appellant,

           v.

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

                Respondent - Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.     James A. Beaty, Jr.,
Chief District Judge. (1:05-cv-01127-JAB-PTS)


Argued:   September 25, 2009                 Decided:   October 23, 2009


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished opinion.      Judge Niemeyer wrote           the
opinion, in which Judge Michael and Judge King joined.


ARGUED: Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North
Carolina, for Appellant.     Jonathan Porter Babb, Sr., NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.   ON BRIEF: William F. W. Massengale, MASSENGALE &
OZER, 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Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:

     Challenging           his    death   sentence        for    first-degree      murder,

imposed in North Carolina state court, Cerron Hooks filed this

habeas corpus petition in federal court under 28 U.S.C. § 2254.

     During a quarrel at a pool party in Winston-Salem, North

Carolina       on     September    5,     1998,    Hooks        shot    and   killed    Mike

Miller.        Lisa McRae and Sabrina Porter, attendees at the party,

testified that after Hooks shot Miller, Hooks kicked him in the

face and taunted him before fleeing the scene.                           The state court

jury convicted Hooks of first-degree murder and, finding that

the crime was “especially heinous, atrocious, or cruel,” N.C.

Gen. Stat. § 15A-2000(e)(9), recommended that he be sentenced to

death.         The    state   court     imposed     the    death       penalty,   and,   on

direct appeal, the Supreme Court of North Carolina affirmed.

State v. Hooks, 548 S.E.2d 501 (N.C. 2001).                             The U.S. Supreme

Court denied Hooks’ petition for a writ of certiorari.                            Hooks v.

North Carolina, 534 U.S. 1155 (2002).

     Hooks later filed a motion for appropriate relief in state

court     -–    the       North   Carolina        mechanism       for    post-conviction

relief -– claiming, among other things, that a newly available

affidavit from Lisa McRae rendered him ineligible for the death

penalty.             He   also    asserted        that    his     trial       counsel    was

ineffective for failing adequately to cross-examine McRae and



                                             2
Porter.      The court denied Hooks’ motion, and the North Carolina

Supreme Court denied certiorari.

      Having    exhausted      his     state       remedies,    Hooks     filed    this

petition for a writ of habeas corpus, which the district court

denied.      We issued a certificate of appealability with respect

to   three    issues,    and   on     those       three   issues    we   now    affirm,

finding that the North Carolina courts made no decision that was

contrary      to,   or    an    unreasonable          application        of,    clearly

established     federal    law,      as    determined      by   the   United      States

Supreme Court.      See 28 U.S.C. § 2254(d)(1).


                                            I

      On the evening of September 5, 1998, Mike Miller hosted a

party at the pool of his apartment complex, and Cerron Hooks

attended, having been invited by a mutual friend.                         Around 9:30

p.m., Miller invited guests back to his second-floor apartment

to continue the party, and Hooks was also among those attending

at the apartment.

      After he left the party, Hooks returned to look for a shirt

he had taken off earlier.             Miller told him that he had not seen

the shirt but would look for it and return it to a mutual friend

if he found it.       Hooks departed but again returned to search the

apartment himself.        When he attempted to enter Miller’s bedroom,

Miller    prevented      him   from       doing    so,    and   a   heated     argument


                                            3
ensued.        Later    testimony    indicated    that    tension    had     also

developed between the two over the romantic attentions of Lisa

McRae, another attendee of the party.             But the argument between

Hooks and Miller mainly concerned the shirt.

       Miller told Hooks that he could not disrespect his house

and that he had to leave.           Although Hooks complied, the argument

continued outside of the apartment, first on the second-story

breezeway and then down the stairway onto the ground floor.                    As

the two argued face to face, Hooks threatened to “f--k [Miller]

up.”    Hooks then pulled out a gun and pointed it at Miller’s

face, to which Miller responded, “Oh, you’re going to shoot me

now.”     After a pause, Hooks shot Miller four times.              Miller fell

to the ground, gravely wounded but conscious.              Hooks then kicked

and pistol-whipped Miller in the face, taunting him by saying,

“You thought I was playing, you thought I was playing.”                 He then

fled the scene.         Bystanders administered first aid to Miller,

who remained conscious for about 15 minutes.               He died 12 hours

later at the hospital.

       Lisa McRae and Sabrina Porter were interviewed by police

officers at the scene, and the officers made cursory notes, but

both    gave   fuller    recorded    statements    to    the   police   on    the

following day, September 6, 1998.            In her recorded statement,

McRae stated that she witnessed the shooting from nearby on the

ground floor and saw Hooks kick Miller and taunt him, saying,

                                        4
“You thought I was playing; you thought I was playing.”                           In her

recorded statement, Porter stated that she did not actually see

the shooting, but she heard the gunshots from Miller’s apartment

and went out to look over the balcony at the scene below.                               She

stated that she saw Hooks kick and pistol-whip Miller.                                 The

cursory    handwritten         notes    of   police      officers       written   at    the

scene did not contain any references to Hooks’ kicking, pistol-

whipping, or taunting Miller.

      Later,   at       the    pretrial      hearing,      McRae    and    Porter      made

statements substantially similar to those that they had given to

police in their recorded statements.

      At trial, McRae’s testimony was again substantially similar

to   her   previous      statements       given     to    the   police     and    at   the

preliminary    hearing.           She    testified       that     she    witnessed      the

shooting and that after Miller fell, Hooks kicked him in the

face and said, “You thought I was playing.”                             Defense counsel

cross-examined her as to why her initial statement to the police

on   September      5    did    not     mention     anything       about    kicking     or

taunting, but McRae insisted, “Well, that’s what he did.                            . . .

I saw the kicking.”

      Porter’s    trial        testimony      was   likewise       consistent.          She

testified that she had heard the shots but did not see the

shooting    and     that       afterwards     she    saw    the     kicking,      pistol-

whipping, and taunts from the second floor balcony.                               Defense

                                             5
counsel    did    not    cross-examine    Porter   about     whether     she    told

police about the kicking, pistol-whipping, and taunting on the

evening    of    the    shooting   or   why   references     to   that   were   not

contained in the police officer’s notes.

     At trial, three other witnesses testified to seeing the

shooting    but    made    no   statements     about   any    kicking,    pistol-

whipping, or taunting.

     The medical examiner testified at trial that Miller had

died approximately 12 hours after the shooting as a result of

gunshot wounds.          On cross-examination, he stated that there was

no evidence of bruising or swelling on Miller’s face or scalp.

The examiner stated that given the amount of time that elapsed

between the shooting and Miller’s death, bruising or swelling

likely would have appeared if Miller had sustained a blunt force

trauma, such as kicking or pistol-whipping.

     The jury found Hooks guilty of first-degree murder, and in

view of the evidence presented at trial, the judge permitted the

jury to decide whether Hooks’ crime was “especially heinous,

atrocious, or cruel” as to justify the death penalty under North

Carolina law.           The trial judge also submitted for the jury’s

decision a number of possible mitigating circumstances.                    On the

aggravating circumstance issue, the judge instructed the jury:

     Under the evidence in this case, there is one possible
     aggravating circumstance which may be considered. .


                                         6
       . .   Was this murder especially heinous, atrocious or
       cruel?

       Now in this context, heinous means extremely wicked or
       shockingly evil.   Atrocious means outrageously wicked
       and vile; and cruel means designed to inflict a high
       degree of pain with utter indifference to, or even
       enjoyment of, the suffering of others.

       However, it is not enough that this murder be heinous,
       atrocious or cruel, as these terms have just been
       defined.    This murder must have been especially
       heinous, atrocious or cruel and not every murder is
       especially so.

       For this murder to have been especially heinous,
       atrocious or cruel, any brutality which was involved
       in it must have exceeded that which is normally
       present in any killing, or this murder must have been
       a   conscienceless   or   pitiless  crime  which  was
       unnecessarily torturous to the victim.

The jury found unanimously that this aggravating circumstance

was present and was not outweighed by any mitigating factors.

It accordingly recommended that Hooks be sentenced to death, and

the trial judge imposed the death penalty.

       The North Carolina Supreme Court affirmed the conviction

and sentence, rejecting Hooks’ challenges, which included claims

that   the    aggravating     factor   was   unconstitutionally      vague    and

that   Hooks’      death    sentence   was   disproportionate      relative    to

other cases in which capital punishment was not imposed in North

Carolina.     See Hooks, 548 S.E.2d 501, 511-13 (N.C. 2001).

       In    his   motion    for   appropriate    relief    challenging       his

conviction      and   sentence,    Hooks     raised   a   number   of   claims,

including two that are presented here.            First, Hooks argued that


                                        7
a recent affidavit from McRae, which he attached to his motion

for   appropriate     relief,   constituted   newly   discovered   evidence

that rendered him ineligible for the death penalty.                 In the

affidavit,    McRae    stated    the   following   about   the   events   on

September 5, 1998:

      I followed Mike [Miller] out into the breezeway and
      was a witness to the shooting. The shooting happened
      very much as I testified at trial.    After Mr. Hooks
      shot Mike, he put his foot in Mike’s face; I cannot be
      certain whether he kicked him or not.

In the affidavit, McRae also conceded that she had been drinking

alcoholic beverages during the party, but was “not impaired and

the alcohol did not affect my ability to recall events of the

day.”    This testimony was contrary to her trial testimony, in

which she denied having been drinking at the party.

      Also in his motion for appropriate relief, Hooks argued

that his trial counsel was ineffective for failure to cross-

examine and impeach McRae and Porter about certain purported

discrepancies in their testimony.          The state court rejected each

of Hooks’ claims, and the North Carolina Supreme Court denied

certiorari.

      Hooks then filed his petition for a writ of habeas corpus

in federal court, claiming 11 grounds for relief -– all of which

the district court rejected.           Hooks sought to appeal three of

his claims, and with respect to those, we granted a certificate

of appealability.

                                       8
                                         II

      Hooks contends first that the new McRae affidavit, stating

that she was uncertain whether she saw Hooks kick Miller after

shooting him, amounts to a recantation that renders him innocent

of the death penalty.           In support of his argument, he cites

Sawyer v. Whitley, 505 U.S. 333 (1992), for the proposition that

newly     discovered     evidence     can     render    a    habeas      petitioner

innocent of the death penalty.               He reasons that the trial judge

was willing to submit the “especially heinous, atrocious, or

cruel”    aggravating      factor   to    the    jury   only   because      of   the

evidence of kicking and taunting, and when evidence that he did

not     kick   and     taunt   Miller    is     presented,     it     renders    him

ineligible for capital punishment.                He maintains that McRae’s

affidavit, when combined with the medical examiner’s testimony

regarding the lack of swelling or bruising, casts substantial

doubt not only on McRae’s trial testimony, but also on Porter’s

similar testimony.

      As the state court considered and rejected Hooks’ claim,

denying his motion for appropriate relief, we now consider the

claim    under   the    deferential      standard   stated     in   28    U.S.C.   §

2254(d)(1) to determine only whether the state court decision

was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.”

                                         9
         We conclude that Hooks’ claim fails as a matter of both law

and fact.          First, the decisions in Sawyer and the similar cases

cited     by   Hooks        are   inapposite.            Those     cases          stand       for   the

proposition          that    a    defendant          may,   by     a    showing          of    actual

innocence,          excuse    the       procedural       barriers           of    a    successive,

abusive, or defaulted habeas claim in order to reach the merits

of   a    constitutional           claim.        In    Sawyer,         the       defendant’s        new

evidence       of    innocence         was    presented       to       allow       the    court      to

consider       a    defaulted      and       therefore      unavailable           constitutional

claim.      See, e.g., Sawyer, 505 U.S. at 336 (“[T]o show ‘actual

innocence’ one must show by clear and convincing evidence that,

but for a constitutional error, no reasonable juror would have

found the petitioner eligible for the death penalty under the

applicable state law”) (emphasis added).                               But Hooks does not

advance        evidence           of     innocence          to     reach           a      defaulted

constitutional          claim.           He    seeks     simply        to    assert,          by    new

evidence, that he is innocent.

         Beyond Sawyer, Hooks provides no support for a claim of

actual     innocence         independent        of    any    constitutional              violation,

and the Supreme Court has never recognized such a claim as a

meritorious ground for habeas corpus.                            The Court has suggested

that such a claim could be made, but the showing required “would

necessarily be extraordinarily high.”                            Herrera v. Collins, 506

U.S. 390, 417 (1993).                  Neither the Supreme Court nor this court

                                                10
has ever found facts sufficiently compelling to grant the writ

for a claim of innocence without the claim of an underlying

constitutional violation.              See Buckner v. Polk, 453 F.3d 195,

199   (4th    Cir.     2006)    (“[C]laims         of    actual       innocence       are   not

grounds     for     habeas    relief       even    in   a   capital      case”)      (quoting

Rouse   v.    Lee,     339    F.3d    238,    255       (4th    Cir.    2003)     (en   banc)

(citing Herrera, 506 U.S. at 405)).

       In    this    case,     McRae’s      purported          recantation      falls       well

short of meeting the “extraordinarily high” showing needed to

raise a colorable freestanding innocence claim.                               Hooks argues

that because McRae omitted facts indicating that she lied at

trial when she testified that she had not been drinking and

because she was willing to recharacterize her kicking testimony,

her trial testimony could be found to be incredible.                             When taken

on    its    face,     however,      the    affidavit          does    not    amount     to    a

recantation.           It    expresses       some       reservation          about    how     to

characterize         what    happened,       but    the     affidavit         states,       “The

shooting happened very much as I testified at trial.”                                (Emphasis

added).      It then recharacterizes the kicking as putting a foot

in the victim’s face:             “After Mr. Hooks shot Mike, he put his

foot in Mike’s face; I cannot be certain whether he kicked him

or not.”      McRae does not explain whether Hooks’ putting his foot

in Miller’s face is materially different from kicking his face.

Regardless        of    the     obvious           difference,          however,       McRae’s

                                             11
testimony, even with the affidavit, remains that Hooks’ foot

engaged Miller’s face while he was on the ground and that Hooks

taunted    him.     But   more    importantly,         McRae’s    affidavit   does

nothing to disturb Porter’s trial testimony that she witnessed

kicking.

      Hooks’ challenge amounts to an attempt to use the McRae

affidavit as an invitation to relitigate the facts of his case.

But that is not our role on habeas review.                       See 28 U.S.C. §

2254(e)(1) (“In a proceeding instituted by an application for

writ of habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination of a factual issue

made by a State court shall be presumed to be correct.                           The

applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence”).                      We conclude

that McRae’s affidavit does not carry Hooks’ heavy burden.

      Finally, Hooks calls our attention to the Supreme Court’s

recent order in In re Davis, __ S. Ct. __, 2009 WL 2486475

(2009) (mem.).      Davis, however, has no bearing on the proper

disposition of this case.          In Davis, the Supreme Court took the

extraordinary     step    of   ordering    a    district    court    to   hold    an

evidentiary hearing for a determination of whether a petitioner

had made a showing that clearly established his innocence of the

crime for which he was convicted by demonstrating that seven of

the   State’s     witnesses      against       Davis    recanted    their     trial

                                      12
testimony, and several implicated the State’s principal witness

as   the    shooter.        See     id.       at     *1    (Stevens,         J.,    concurring).

Hooks’ showing in this case pales in comparison.

       In short, we conclude that Hooks has failed to satisfy the

burdens        imposed     on     him     by       28      U.S.C.       §§    2254(d)(1)         and

2254(e)(1).


                                               III

       Hooks       next     contends           that         his       trial        counsel       was

constitutionally ineffective for failing to cross-examine McRae

and Porter on specific matters.                      He notes that because McRae and

Porter     were     the    only    two        witnesses          to   testify       about    Hooks

kicking and taunting Miller, their testimony provided the only

basis for the death penalty.                   Consequently, he argues, effective

impeachment of McRae and Porter would have prevented his death

sentence.         The state court considered this ineffectiveness claim

on Hooks’ post-conviction motion and rejected it, finding that

counsel’s       trial     conduct       was    not        deficient      and       that,    in   any

event, Hooks was not prejudiced.

       To prevail on a claim of ineffective assistance of counsel,

Hooks      must     satisfy       the    two       prong         test    in    Strickland         v.

Washington, 466 U.S. 668 (1984).                           First, he must demonstrate

that     his    counsel     performed          below        an    objective         standard      of

reasonableness.           Id. at 687-89.             Second, he must show that this


                                                13
poor performance prejudiced him.                  Id. at 687.          Prejudice is a

reasonable probability that but for counsel’s errors, the result

of the proceeding would have been different -– here, that the

jury would not have found Hooks eligible for the death penalty.

Id. at 694-95.

     Hooks     focuses     first      on    the    inconsistency            between   the

statement that McRae gave to police officers at the scene on

September 5 and the statement that she gave to police the next

day on September 6 -- that she apparently denied on September 5

seeing the shooting and that in every statement thereafter she

claimed that she witnessed the shooting.

     Counsel      did    indeed    fail     to     question       McRae      about    this

apparent discrepancy.          The September 5 statement, however, was

recorded by the police officer at the scene in three handwritten

sentences.        The   very   next    day,       McRae    gave    a    full    recorded

statement    in    which    she    stated        that     she   had     witnessed      the

shooting.      Moreover, she maintained this position thereafter,

including in her recently submitted affidavit on which Hooks has

heavily relied, where she stated that she “was a witness to the

shooting.”     Cross-examination on this discrepancy would not have

changed     the   fact     that    Hooks        shot    Miller,        an    essentially

uncontested fact.          Cross-examination would only have produced

speculation to bridge the apparent inconsistency, such as the

officer did not hear correctly or he transcribed what he heard

                                           14
incorrectly.        But little else could have been obtained by cross-

examination     because    McRae    described      the   shooting    in    terms

similar to every other eyewitness, and cross-examination would

not likely have been fruitful.               Certainly the outcome of the

trial would not have been changed.

     Hooks    also     faults   trial   counsel    for   failing    to    impeach

McRae with the fact that her initial statement on September 5

did not mention kicking, and her full recorded statement given

the next day did.          This claim, however, is meritless because

counsel did in fact impeach McRae with this inconsistency and

did so repeatedly.       For example:

     Q.      You said in your testimony on direct that Cerron,
             after he shot him, kicked him and stomped on his
             face?

     A.      Yes.

     Q.      You gave a statement to the officers and didn’t
             say anything about stomping on his face. Is that
             something you remembered since you gave that
             statement?

     A.      Yes.

     Q.      And you gave a statement to Detective Spillman as
             well and you didn’t say anything about it then?

     A.      Well, that’s what he did.

     Q.      Who saw the kicking?

     A.      Whatcha you mean?      I saw the kicking.

                                *       *      *

     Q.      Who else would have been in a position to see the
             kicking?
                                        15
       A.     I’m not sure cause after Mike had got shot, to me
              everybody was gone. I didn’t see nobody.

       Q.     So you were the only one that saw it?

       A.     As far as I know of.

       Hooks also faults his trial counsel for failing to impeach

Porter      with     the    fact     that       her    initial       statement        given    on

September      5    at     the    scene    of    the       murder    made      no    mention    of

kicking,      pistol-whipping,             or   taunting,         even    though      the    full

recorded statement that she gave the next day did.                                        But the

discrepancy can hardly be momentous or material in view of the

fact that the police officer taking notes at the scene devoted

only one sentence to his interview of Porter:                             “A Sabrina Porter

only heard the shots and ran to give first aid to the victim.”

This single statement, which is the full report of her statement

on September 5, was not inconsistent with what Porter maintained

thereafter;         it   simply      did    not       contain       any   further         details.

Beginning      with      her     full,     recorded        statement      on    September       6,

Porter      consistently          stated    that      she    saw     kicking        and    pistol-

whipping.          Cross-examining her about her statements might only

have   emphasized          the    consistency         of    her     account     and       probably

would not have made her back down from that detail.                                        We can

hardly      conclude       that    the     failure     to    attempt      to    exploit       this

discrepancy, with its potential for mixed results, was deficient

or would have made a difference.


                                                16
       Hooks also contends that his counsel was ineffective for

failing to question Porter about the fact that shortly after the

shooting, she did not see Kenneth Hoskins, an attendee at the

party,    fall   over    the    second-floor   railing   and   land     near   the

scene.     Testimony was presented that Hoskins was descending the

stairs when he heard the shots.              In an apparent panic, he fled

back up the stairs and fell over the railing.                        In her full

statement on September 6, Porter acknowledged that others had

said that Hoskins had fallen over the railing, but stated that

she did not see it.            Hooks argues now that Porter’s failure to

notice this remarkable detail could well have been advanced to

cast   doubt     on   the   credibility   of   her   other   testimony.        But

again,    this     is   merely    speculation.       There     may    have     been

plausible reasons why Porter did not see Hoskins.                For instance,

she may not have left the apartment in time to see him fall, or

she may have been focusing entirely on Miller, while giving him

aid.     Failure to ask Porter about Hoskins’ fall is not the sort

of deficiency that has been recognized as ineffective assistance

of counsel.       More importantly, no prejudice could have occurred

because    there      was   not   a   “reasonable    probability”      that    the

outcome of the trial would have been different had she been

cross-examined about not seeing Hoskins fall, especially when

she acknowledged others’ testimony on the fact.



                                        17
      Hooks next claims that his trial counsel was ineffective

for   failing      to     impeach    McRae       and     Porter    with     the    medical

examiner’s testimony that a lack of bruising and swelling was

inconsistent       with    blunt    force    trauma,       such    as   kicking.         The

North Carolina Superior Court rightly pointed out, however, that

because counsel thoroughly cross-examined the medical examiner

about the bruising, cross-examination of McRae and Porter would

have been duplicative at best.                   More likely, because they were

lay fact witnesses, they would not have been in a position to

comment     on     or    give   opinions         about    the     medical     examiner’s

testimony.

        Finally,        Hooks   argues       that        his    trial     counsel         was

ineffective for not confronting McRae and Porter about “what

motives they may have had for concocting the new story [about

kicking and taunting]” during their time together on September 6

before they gave their recorded statements.                       Again, this failure

was not unreasonable.           It is well within the range of reasonable

trial strategy to avoid directly accusing adverse witnesses of

conspiring to lie and lying, especially when there is no factual

basis    for     the    accusation.        Additionally,          the   outcome        almost

certainly would not have turned on such cross-examination.                               The

witnesses        were     unlikely    to     relent        in     response        to    such

questioning because, as the State points out, McRae and Porter



                                            18
would have had no reason to believe that these details were of

any legal significance.

       In   sum,    Hooks   has     failed    to     demonstrate        that    the    state

court’s determination that his trial counsel was effective was

contrary to, or an unreasonable application of, Strickland and

its progeny.


                                            IV

       Finally,     Hooks    claims    that       North    Carolina’s          “especially

heinous, atrocious, or cruel” aggravating factor and the jury

instruction        that     the      trial         judge     gave        on     it      were

unconstitutionally          vague     and     failed       to     limit       the     jury’s

discretion.        See Maynard v. Cartwright, 486 U.S. 356, 360-63

(1988) (holding that Oklahoma’s “especially heinous, atrocious,

or     cruel”      aggravating       circumstance          was     unconstitutionally

vague); Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980) (holding

that    Georgia’s     “outrageously          or    wantonly       vile,       horrible    or

inhuman” aggravating circumstance was unconstitutionally vague).

The North Carolina Supreme Court rejected this claim.                                 Hooks,

548 S.E.2d at 511.

       Hooks’ argument is directly foreclosed by our precedents,

which have concluded that although standing alone this North

Carolina     aggravating       factor        might     not       pass    constitutional

muster, when given along with the pattern instruction that was


                                            19
given    to     the    jury    in    this    case,      the   jury’s      discretion      is

sufficiently limited.               We have held that the jury instruction

provides guidance and does not create the boundless discretion

condemned in Maynard, Godfrey, and similar cases.                           See Fullwood

v. Lee, 290 F.3d 663, 694 (4th Cir. 2002); Frye v. Lee, 235 F.3d

897, 907-08 (4th Cir. 2001); Fisher v. Lee, 215 F.3d 438, 458-59

(4th Cir. 2000).

        Hooks makes a related argument that the killing in this

case cannot be deemed “especially heinous, atrocious, or cruel”

because the aggravating factor was unconstitutionally applied in

this    case,    inasmuch      as     the    murder     Hooks     committed    was      less

appalling than the eight others for which the North Carolina

Courts    sentenced      defendants         to    death   during    the    year    he    was

convicted.        Each    of    the    other      eight   cases    involved       multiple

murders or murders during the course of felonies such as rape or

armed robbery.         Hooks also argues that compared with other North

Carolina cases, his crime is more aptly considered second-degree

murder.       In short, he invites us to engage in a comparative

proportionality review.

       Although the North Carolina Supreme Court did engage in

such    review    on    direct      appeal       and   rejected    Hooks’    claim,      see

Hooks, 548 S.E.2d at 511-13, the United States Supreme Court has

held that comparative proportionality review is not required by

the Eighth Amendment.               See Pulley v. Harris, 465 U.S. 37, 44-51

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(1984).    Such a claim is, accordingly, not cognizable on federal

habeas review, even as it is without merit.

                               *     *      *

     In sum, the North Carolina courts made no decision that was

contrary    to,   or    an   unreasonable       application    of,     clearly

established   federal    law   as   determined     by   the   United   States

Supreme Court.    28 U.S.C. § 2254(d)(1).          Accordingly, we affirm

the judgment of the district court.

                                                                     AFFIRMED




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