                                          Filed:     February 24, 1998


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                               No. 97-12
                           (CA-87-816-3-OK)



Samuel David Roberts,

                                               Petitioner - Appellant,

           versus

Michael W. Moore, etc., et al,

                                              Respondents - Appellees.




                              O R D E R


    The Court amends its opinion filed February 4, 1998, as

follows:
    On page 2, footnote 2, line 4 -- the phrase "§ 106 of" is

deleted.

                                       For the Court - By Direction



                                          /s/ Patricia S. Connor

                                                      Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SAMUEL DAVID ROBERTS,
Petitioner-Appellant,

v.

MICHAEL W. MOORE, Director, South
                                                              No. 97-12
Carolina Department of Corrections;
WILLIE WELDON, Warden, Leiber
Correctional Institution,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CA-87-816-3-OK)

Argued: October 27, 1997

Decided: February 4, 1998

Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished opinion. Judge Wilkins wrote the opinion,
in which Judge Niemeyer and Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Peter L. Murphy, GLENN, MURPHY, GRAY & STEPP,
L.L.P., Columbia, South Carolina; David P. Voisin, Columbia, South
Carolina, for Appellant. Donald John Zelenka, Assistant Deputy
Attorney General, Columbia, South Carolina, for Appellees. ON
BRIEF: Sheri Johnson, CORNELL LAW SCHOOL, Ithaca, New
York, for Appellant. Charles M. Condon, Attorney General, John W.
McIntosh, Deputy Attorney General, Columbia, South Carolina, for
Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Samuel David Roberts appeals a decision of the district court deny-
ing his petition for a writ of habeas corpus,1 which challenged his
South Carolina convictions on three counts of capital murder and
resulting death sentences. See 28 U.S.C.A. § 2254 (West 1994).2 The
district court held that Roberts was not entitled to habeas relief on his
_________________________________________________________________

1 Roberts named James Aiken, Warden of the Central Correctional
Institution where Roberts was then incarcerated, and the Attorney Gen-
eral of South Carolina as Respondents in the petition. Subsequently,
Michael W. Moore, Director of the South Carolina Department of Cor-
rections, and Willie Weldon, Warden of the Lieber Correctional Institu-
tion where Roberts is presently incarcerated, were substituted for Aiken.
For ease of reference, we refer to Respondents collectively as "the State"
throughout this opinion.

2 Because Roberts' petition for a writ of habeas corpus was filed in
1987, prior to the April 24, 1996 enactment of the Antiterrorism and
Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132,
110 Stat. 1214, amendments to 28 U.S.C.A. § 2254 effected by
the AEDPA do not govern our resolution of this appeal. See Lindh v.
Murphy, 117 S. Ct. 2059, 2067 (1997). And, the provisions of § 107 of
the AEDPA do not apply because Roberts' state habeas petition was
finally decided by the South Carolina Supreme Court before June 18,
1996, the date South Carolina purports to have adopted procedures ade-
quate to satisfy the opt-in provisions of § 107. See Howard v. Moore,
1997 WL 755428, at *1 n.1 (4th Cir. Dec. 9, 1997) (en banc).

                    2
claims that he was denied the constitutionally guaranteed effective
assistance of counsel; that the State failed to disclose material excul-
patory information in violation of Brady v. Maryland, 373 U.S. 83
(1963), and its progeny; that the trial court committed harmful error
in instructing the jury that the element of malice necessary to prove
murder under South Carolina law was presumed from the willful,
deliberate, and intentional commission of an unlawful act without just
cause and excuse and from the use of a deadly weapon; and that the
trial court impermissibly chilled the exercise of his constitutional
right to testify on his own behalf. Because Roberts has failed to make
a substantial showing of the denial of a constitutional right, we deny
his application for a certificate of probable cause and dismiss the
appeal.

I.

The primary evidence concerning Roberts' involvement in the mur-
ders charged was the testimony of Danny Ray Coker, a participant in
the crimes, who testified pursuant to a grant of immunity. Coker testi-
fied that on the evening of June 18, 1980, he traveled with Roberts
and Wesley Copeland in Copeland's vehicle from Sumter, South Car-
olina to Charleston, South Carolina where Copeland met with an
acquaintance. During their return to Sumter, Copeland formulated and
--with Roberts' and Coker's assistance--carried out a plan to rob a
service station. Copeland and Roberts entered the Port Oil Service
Station, where William Spain and Kenneth Krause were employed,
while Coker waited outside in the automobile. After robbing the sta-
tion, Copeland and Roberts, who were both armed, forced Spain and
Krause to enter Copeland's vehicle. Copeland then directed Coker to
drive to a remote area, where the victims were forced from the auto-
mobile and shot to death by Copeland. Coker testified that Roberts
refused to shoot either Spain or Krause, but promised Copeland, "I
will do the next one." J.A. 423 (internal quotation marks omitted).
After returning to the scene of the Spain and Krause murders to con-
ceal evidence of their crimes--during which time Roberts repeatedly
stabbed Krause's body "to make sure [he was] dead," J.A. 425 (inter-
nal quotation marks omitted)--the three men continued toward Sum-
ter. On the way, they stopped at another service station where Coker
and Roberts robbed the attendant, Louis Cakley, and abducted him at
gunpoint. Copeland drove to an isolated location. After directing Cak-

                    3
ley to walk away, Roberts shot him in the back. Cakley fell to the
ground and Roberts shot him at least twice more at close range, kill-
ing him. The three men then returned to Sumter. The following day,
according to Coker, Roberts used his share of their ill-gotten gains to
purchase an automobile.

Roberts defended against the charges on several grounds. First, he
attempted to demonstrate through cross-examination that Coker's
story was unbelievable and that he was lying to save himself. Roberts
also suggested, again through cross-examination, that Coker's testi-
mony was motivated in part by a desire to take revenge against Rob-
erts because members of Roberts' family had testified against Coker
in a previous criminal proceeding. Third, Roberts presented witnesses
whose testimony indicated that Roberts could not have traveled with
Coker and Copeland to Charleston because he was in Sumter all eve-
ning on June 18. Finally, Roberts attempted to show that the funds he
used to purchase the automobile were the proceeds of an insurance
settlement he obtained on the morning of June 19.

Roberts subsequently was convicted of three counts of capital mur-
der and was sentenced to death.3 The South Carolina Supreme Court
affirmed on direct appeal, and the United States Supreme Court
denied certiorari. See State v. Copeland, 300 S.E.2d 63 (S.C. 1982),
cert. denied, 463 U.S. 1214 (1983). Thereafter, a state court denied
Roberts' application for post-conviction relief (PCR) after an eviden-
tiary hearing, reasoning that his claims were without merit. The
United States Supreme Court again denied certiorari. See Roberts v.
Aiken, 478 U.S. 1022 (1986).

In April 1987, Roberts filed this action in the district court, alleging
numerous claims. The district court denied relief. Roberts now
appeals.
_________________________________________________________________

3 Roberts also was convicted of three counts of kidnaping and one
count of armed robbery. Those convictions and the resulting sentences
are not at issue here.

                    4
II.

Roberts first maintains that his right to the effective assistance of
counsel was denied when the State scheduled his trial to begin 60
days after the appointment of counsel.4 In the usual case, entitlement
to relief on a claim of ineffective assistance of counsel depends upon
a showing that counsel's performance "fell below an objective stan-
dard of reasonableness" and that the petitioner suffered prejudice, i.e.,
"that there is a reasonable probability that, but for counsel's unprofes-
sional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Here, how-
ever, Roberts does not argue that the attorneys appointed to assist in
his defense were incompetent. Rather, he maintains that the period of
time between counsel's appointment and trial was so abbreviated that
his attorneys were not given adequate time to prepare for the guilt and
sentencing phases of his trial, thereby depriving him of his right to the
assistance of counsel.

"An accused's right to be represented by counsel is a fundamental
component of our criminal justice system." United States v. Cronic,
466 U.S. 648, 653 (1984). And, the appointment of counsel to assist
in the presentation of an indigent defendant's case must be more than
a mere formality to satisfy the strictures of the Constitution. See Avery
v. Alabama, 308 U.S. 444, 446 (1940). Thus, the constitutional guar-
antee of the assistance of counsel necessarily includes the "opportu-
nity for appointed counsel to confer, to consult with the accused and
to prepare his defense." Id.; see Cronic, 466 U.S. at 654-55.

A relatively short period of time for trial preparation, however,
does not necessarily constitute a deprivation of the right to counsel.
See Cronic, 466 U.S. at 658 ("Absent some effect of challenged con-
duct on the reliability of the trial process, the Sixth Amendment guar-
antee is generally not implicated."). But, in some cases, the
deprivation caused by the lack of time between appointment of coun-
sel and trial may be so serious as to warrant a finding of a constitu-
tional violation without a showing of actual prejudice. See id. at 659-
_________________________________________________________________

4 Counsel moved for a continuance, but that motion was denied by the
trial court. Roberts does not claim that the denial of the motion for con-
tinuance violated due process.

                    5
61 (explaining that in some circumstances "the likelihood that any
lawyer, even a fully competent one, could provide effective assistance
is so small that a presumption of prejudice is appropriate without
inquiry into the actual conduct of the trial"); Powell v. Alabama, 287
U.S. 45, 56-59 (1932) (holding that appointment of counsel on the
day of trial in a capital case violated the right to counsel without con-
sidering whether the defendants actually were prejudiced). Generally,
though, "the accused [must] show how specific errors of counsel
undermined the reliability of the finding of guilt." Cronic, 466 U.S.
at 659 n.26.

With respect to the guilt phase of his trial, Roberts does not point
to any specific errors that resulted from a lack of time to prepare.
Accordingly, we address whether the circumstances surrounding the
guilt phase of Roberts' trial were such that Roberts is entitled to a pre-
sumption that he was prejudiced by counsel's inability to prepare.5
And, we conclude that a presumption of prejudice is not warranted.
An attorney first was appointed for Roberts fully two months before
his trial. That attorney promptly rearranged his schedule to accommo-
date his new responsibilities; repeatedly spoke with Roberts regarding
the case; consulted with other attorneys familiar with the defense of
capital cases; and attended a three-day seminar on death-penalty tri-
als. A second attorney was appointed for Roberts three weeks before
trial, and that attorney also arranged his schedule to devote substan-
tially all of his time to Roberts' defense. Both attorneys were experi-
enced in criminal law. By their own estimate, they spent in excess of
500 hours preparing for trial. Moreover, although the charges against
Roberts and the possible consequence of conviction were grave, Rob-
erts' defense to those charges--that he simply was not with Copeland
and Coker on the night of June 18 and morning of June 19--was rela-
tively uncomplicated to prepare and present. Finally, our review of
_________________________________________________________________

5 Roberts vigorously denies that he is claiming that the circumstances
surrounding the guilt phase of the trial should give rise to a presumption
of prejudice. However, in light of Roberts' failure to identify any particu-
lar errors that might demonstrate actual prejudice, the only basis for a
conclusion that Roberts' constitutional rights were violated is a presump-
tion of prejudice. We are confident that, faced with the alternatives of
having us examine the guilt phase of the trial for a presumption of preju-
dice or not at all, Roberts would choose the former.

                    6
the trial transcript indicates that counsel rigorously tested the State's
case during the guilt phase of the trial. In short, the circumstances sur-
rounding the guilt phase of Roberts' trial do not justify a presumption
that Roberts suffered prejudice due to a lack of time for his attorneys
to prepare for trial. See id. at 663-66 (concluding that presumption of
prejudice was not warranted even though, inter alia, counsel was
appointed only 32 days before trial and had never tried a criminal
case); Avery, 308 U.S. at 447, 450-53 (ruling that appointment of
counsel three days before capital trial did not justify presumption of
prejudice under the circumstances of the case).

Regarding the sentencing phase of his trial, Roberts maintains that
the lack of time to prepare prejudiced him by making it impossible
for his attorneys to develop evidence in mitigation. In support of this
argument, Roberts points to studies conducted after trial indicating
that he suffers from organic brain damage that affects his ability, inter
alia, to think rationally and to appreciate the long-term consequences
of his actions, and that he was raised by two alcoholic parents who
abused him physically and mentally. Roberts maintains that if his
attorneys had had adequate time to develop this mitigating evidence,
there is a reasonable probability that the jury would have recom-
mended a sentence of life imprisonment. See Strickland, 466 U.S. at
694.

Assuming that the evidence Roberts claims should have been sub-
mitted to the jury is in fact mitigating, Roberts suffered no prejudice.
During the penalty phase, Dr. William H. Snyder, Jr. testified that
Roberts' father was an alcoholic who beat Roberts' mother in front
of their children; that Roberts' "household really must have been a
bad situation," J.A. 1828; that Roberts suffered from minimal brain
dysfunction syndrome that diminished his ability to concentrate and
to consider the consequences of his behavior; that Roberts had been
devastated by the shooting death of his brother in 1979; and that
although Roberts began using drugs and alcohol at an early age, after
his brother's death his drug usage increased dramatically and he
began to behave erratically. Dr. Snyder also informed the jury that he
had been unable, due to time constraints, to fully investigate Roberts'
background. Additionally, Roberts' mother and sisters testified that
Roberts had been beaten by his father while a child; that Roberts felt
guilt over the death of his brother, who had died in Roberts' arms; and

                     7
that Roberts was not a violent person. Thus, the evidence Roberts
now contends the jury should have received was actually presented to
the jury through the testimony of Dr. Snyder and Roberts' family
members. Under these circumstances, counsel's assumed inability to
develop additional psychiatric testimony in mitigation does not under-
mine our confidence in the outcome of the penalty phase.

III.

Roberts next maintains that the State failed to provide exculpatory
information as required by Brady v. Maryland, 373 U.S. 83 (1963),
and its progeny. More specifically, Roberts claims that the State failed
to disclose all of the terms of an agreement between Coker and the
State regarding certain pending charges; exculpatory information
regarding physical evidence found at the scene of the Spain and
Krause murders; and statements by various persons that contradicted
the State's evidence. Roberts argues that this information could have
been used to impeach Coker's credibility; to contradict the State's
version of the timing of the events of that evening; to support Rob-
erts' alibi defense; and to provide additional mitigating evidence to
the jury during the penalty phase.

Suppression by the government of evidence favorable to the
defense that is material to the outcome of a trial or sentencing pro-
ceeding violates due process, irrespective of the motive of the prose-
cutor. See Brady, 373 U.S. at 87. In addition to the disclosure of
exculpatory evidence, due process requires the government to dis-
close evidence affecting the credibility of prosecution witnesses. See
Giglio v. United States, 405 U.S. 150, 154 (1972). Undisclosed evi-
dence is material when its cumulative effect is such that "`there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.'"
Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (quoting United States
v. Bagley, 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.)); see
id. at 436-37 (explaining that "suppressed evidence [must be] consid-
ered collectively, not item by item"). A "reasonable probability" is
one sufficient to undermine confidence in the outcome. See id. at 434
(internal quotation marks omitted).

With these principles in mind, we turn to an examination of the
various pieces of evidence Roberts maintains were not disclosed to

                    8
him. As set forth in more detail below, we conclude that the evidenti-
ary items Roberts claims were suppressed by the State, whether
viewed singly or collectively, do not constitute material evidence
favorable to the defense.

Roberts first maintains that the State failed to disclose all of the
details of a plea agreement between Coker and the State concerning
charges unrelated to the murders of Spain, Krause, and Cakley.
According to Roberts, at the time of Coker's trial testimony Coker
knew that he would serve little or no active prison time on those
charges--contrary to his testimony and information provided to the
defense that Coker would receive a sentence of between one and 20
years imprisonment. Even if the State failed to disclose the existence
of an agreement regarding the amount of time Coker would serve,
however, the evidence is not material in light of Roberts' thorough
impeachment of Coker's credibility. By the end of cross-examination,
the jury knew not only that Coker had received complete immunity
for his role in the crimes with which Roberts was charged, but also
that he possessed an extensive criminal record. Roberts' claim that the
State violated Brady by failing to disclose the details of Coker's
agreement regarding other pending charges therefore is without merit.

During the trial, the State presented expert testimony from Lieuten-
ant Frank DeFreese of the State Law Enforcement Division that plas-
ter casts of tire marks left at the scene of the Spain and Krause
murders were generally consistent with the tread on the tires of Cope-
land's vehicle. Roberts contends that the State failed to divulge the
existence of a measurement of the width of one of the tire marks
taken by an investigating officer that was inconsistent with the tread
on Copeland's automobile.6 Roberts further maintains that this infor-
mation is material because it would have allowed him to challenge
DeFreese's testimony. Our review of the record, however, indicates
that the evidence Roberts claims should have been disclosed to the
defense was not material. DeFreese candidly admitted that he lacked
sufficient information to positively identify Copeland's vehicle as the
automobile that left the tire marks. Furthermore, defense counsel was
_________________________________________________________________

6 In connection with the state PCR hearing, DeFreese submitted an affi-
davit characterizing the measurement taken by the investigating officer
as "obviously wrong." J.A. 1423.

                    9
allowed to examine the casts--which provided tangible evidence of
the width of the tire marks--when they were introduced into evi-
dence, thus providing ample opportunity to impeach DeFreese's testi-
mony based upon the physical evidence. Cf. United States v. Smith
Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985) (explain-
ing that "[n]o due process violation occurs as long as Brady material
is disclosed to a defendant in time for its effective use at trial").

Roberts also contends that the State did not reveal that one of the
investigating officers believed that a footprint found at the scene of
the Spain and Krause murders might have been made by a woman and
as a result other suspects were investigated. Again, the officer's
impression and the actions he took based upon that impression are not
material evidence. In the first place, there is no indication that the
footprint in question actually was made by a woman. And, impor-
tantly, it was made clear to the jury that the investigation of the mur-
ders did not focus immediately on Copeland, Coker, and Roberts, but
initially encompassed other suspects, in part because of observations
by investigating officers of the physical evidence--including foot-
prints that may have been left by the perpetrators.

Finally, Roberts maintains that the State failed to disclose several
statements made by various persons to investigating officers that con-
tradicted the timing established by the State through Coker's testimony.7
Roberts thoroughly and effectively cross-examined Coker concerning
whether it was possible for the events of June 18-19 to have taken
place as Coker claimed. In the face of this questioning, Coker admit-
_________________________________________________________________

7 In particular, Roberts complains that the State failed to disclose the
following: a statement by Coker that he, Copeland, and Roberts arrived
in Charleston by 8:00 p.m. on June 18; a statement by Charles Conver-
tino that the three men visited him between 9:00 and 10:00 p.m.; a state-
ment by Evelyn Kay Cooley that she saw Louis Cakley at approximately
5:00 a.m.; a law enforcement officer's conflicting statements regarding
the time at which he discovered that Cakley was missing; a statement by
John Berry Adler that he saw lights and people inside the Port Oil Station
between 12:30 and 12:45 a.m.; a statement by James Walter Branton that
he heard shots from the field where Cakley was murdered at 5:45 a.m.;
and a statement by Kenneth Pace that he observed a vehicle with round
taillights in the vicinity of the Spain and Krause murders.

                    10
ted that his estimates regarding the timing of the abductions and mur-
ders were not reliable. Thus, any testimony regarding the inaccuracy
of Coker's recollections would merely have been cumulative of his
candid admission that he did not know what time certain events
occurred. We therefore conclude that this information was not mate-
rial to Roberts' defense.

IV.

Roberts also maintains that an instruction to the jury during the
guilt phase of the trial shifted the burden of proof on the element of
malice from the prosecution to him in violation of the Due Process
Clause of the Fourteenth Amendment, which requires that the State
prove each element of a charged offense beyond a reasonable doubt.
See Yates v. Evatt, 500 U.S. 391, 400-01 (1991). We conclude that
although the challenged instruction is unconstitutional, the error was
harmless.

Under South Carolina law, "`[m]urder' is the killing of any person
with malice aforethought, either express or implied." S.C. Code Ann.
§ 16-3-10 (Law. Co-op. 1985) (emphasis omitted). And, malice is a
"wrongful intent to injure another and indicates a wicked or depraved
spirit intent on doing wrong." State v. Johnson, 352 S.E.2d 480, 481
(S.C. 1987) (per curiam); see also State v. Glenn, 492 S.E.2d 393, 398
(S.C. Ct. App. 1997) ("Malice is the doing of a wrongful act inten-
tionally and without just cause or excuse."). Although an unjustified
or inexcusable specific intent to kill constitutes malice, a specific
intent to kill is not required. See State v. Foust, 479 S.E.2d 50, 51 &
n.2 (S.C. 1996).

Before the jury retired to deliberate Roberts' guilt, the trial court
instructed the jury that malice is presumed "from the willful, deliber-
ate and intentional doing of an unlawful act without just cause and
excuse" and from the use of a deadly weapon. J.A. 765-67. Although
the trial court also instructed the jury that the presumption of malice
was rebuttable and that it was to decide based upon all of the evidence
presented whether malice had been established beyond a reasonable
doubt, Roberts maintains that the instruction on presumed malice
impermissibly shifted the burden of proof from the State to him on
this issue. See Yates, 500 U.S. at 400-02. The State concedes that the

                    11
presumed malice instruction amounted to an error of constitutional
magnitude. And, although we are not bound by the State's conces-
sion, see Sibron v. New York, 392 U.S. 40, 58 (1968), we agree that
the challenged instruction constituted an unconstitutional burden-
shifting instruction, see Hyman v. Aiken, 824 F.2d 1405, 1409 (4th
Cir. 1987). The dispositive issue with respect to this claim, then, is
whether the error occasioned by the unconstitutional instruction was
harmless.

Once a state criminal defendant has received direct review of his
conviction and sentence, principles of comity and federalism dictate
that we not overturn that presumptively legal judgment on the basis
of a constitutional error unless we either are convinced that "the error
`had substantial and injurious effect or influence in determining the
... verdict,'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quot-
ing Kotteakos v. United States, 328 U.S. 750, 776 (1946)), or at a
minimum entertain grave doubt that it had such an effect, see O'Neal
v. McAninch, 513 U.S. 432, 437 (1995) (holding that when "the
record is so evenly balanced that a conscientious judge is in grave
doubt as to the harmlessness of an error," the judge must resolve that
doubt in favor of the habeas petitioner).8 In applying this standard, we
do not ask whether the evidence of guilt was sufficient, whether the
jury would have reached the same conclusion if the error had not
occurred, or whether the jury reached the correct result based on the
evidence presented. See Satcher v. Pruett, 126 F.3d 561, 567-68 (4th
Cir.), cert. denied, 118 S. Ct. 595 (1997). Rather, we review the
record de novo to determine whether the error "substantially sway[ed]
or substantially influence[d] the response" of the jury to the question
put to it--i.e., in the guilt context, whether the defendant is guilty or
not guilty. Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir. 1996) (en
_________________________________________________________________

8 The Brecht Court left open the possibility that under unusual circum-
stances "a deliberate and especially egregious error of the trial type, or
one that is combined with a pattern of prosecutorial misconduct, might
so infect the integrity of the proceeding as to warrant the grant of habeas
relief, even if it did not substantially influence the jury's verdict." Brecht,
507 U.S. at 638 n.9. Roberts' claim that his trial was tainted by an uncon-
stitutional burden-shifting instruction is not such a claim. See Yates, 500
U.S. at 407-11 (conducting analysis of whether burden-shifting instruc-
tion was prejudicial).

                     12
banc), cert. denied, 118 S. Ct. 83 (1997); see O'Neal, 513 U.S. at 436
(explaining that in making the harmlessness determination, a federal
habeas judge must review the record to assess whether "the judge[ ]
think[s] that the error substantially influenced the jury's decision"
(internal quotation marks omitted)); Brecht, 507 U.S. at 637 (holding
that an error does not have a substantial and injurious effect on a jury
verdict unless "it resulted in `actual prejudice'" to the habeas peti-
tioner (quoting United States v. Lane, 474 U.S. 438, 449 (1986))); cf.
Yates, 500 U.S. at 405 (holding that harmless-error analysis of an
unconstitutional burden-shifting instruction "requires an identification
and evaluation of the evidence considered by the jury in addition to
the presumption itself").

Our review of the record from Roberts' trial leaves no doubt that
the burden-shifting instruction on presumed malice had no substantial
or injurious effect on the verdict. The evidence presented established
that Roberts actively participated in the abduction and murder of three
people. And, according to Coker--whose testimony the jury necessar-
ily credited in convicting Roberts--Roberts promised Copeland after
the shootings of Spain and Krause that he would kill the next victim.
In fact, Roberts did murder Louis Cakley, shooting him first in the
back as Cakley walked away and then twice more at nearly point-
blank range. As if these acts of depravity were not enough, Roberts
mutilated Krause's body in order "to make sure[he was] dead." J.A.
425 (internal quotation marks omitted).9

Considering the totality of the overpowering evidence of malice
that the jury had before it, there can be no doubt that the erroneous
instruction had no effect whatsoever on the verdicts, much less a sub-
stantial and injurious one. See, e.g., Plath v. Moore, 130 F.3d 595,
598-99 (4th Cir. 1997) (holding unconstitutional burden-shifting
instruction harmless in light of overwhelming evidence of malice);
_________________________________________________________________

9 At no time has Roberts asserted that the deaths of Spain, Krause, and
Cakley occurred by accident or were the result of self-defense or some
other legal justification or excuse. Cf. Houston v. Dutton, 50 F.3d 381,
383, 386-87 (6th Cir. 1995) (holding unconstitutional burden-shifting
instruction on presumed malice was not harmless because it essentially
prevented jury from considering defendant's lone argument that the mur-
der, produced by three gunshot wounds, was accidental).

                    13
Arnold v. Evatt, 113 F.3d 1352, 1356-57 (4th Cir. 1997) (same), cert.
denied, 66 U.S.L.W. 3456, (U.S. Jan. 12, 1998) (No. 97-6646).
Accordingly, the unconstitutional burden-shifting instruction is harm-
less and provides no basis for habeas relief.

V.

Roberts presents a final claim, which we conclude is procedurally
defaulted. Roberts contends that comments by the trial court chilled
the exercise of his right to testify in his own defense, in violation of
the Constitution. During the sentencing phase of Roberts' trial,
defense counsel commented to the court that Roberts was considering
testifying on his own behalf, but was concerned that statements made
could be used against him in the event of a retrial. In response, the
trial court stated:

        I cannot tell Mr. Roberts whether to take the stand or not.
        That is a decision that he will have to make. Of course, as
        you know, if he takes the stand, a record will be made. And,
        of course, if there is a new trial, that record would be admis-
        sible in another court.

J.A. 779-80. Roberts asserts that these comments amounted to a threat
that his testimony would be used against him in the future and that
they precluded him from exercising his right to testify.

Absent cause and prejudice or a miscarriage of justice, a federal
habeas court may not review constitutional claims when a state court
has declined to consider their merits on the basis of an adequate and
independent state procedural rule. See Harris v. Reed, 489 U.S. 255,
262 (1989). Such a rule is adequate if it is regularly or consistently
applied by the state court, see Johnson v. Mississippi, 486 U.S. 578,
587 (1988), and is independent if it does not "depend[ ] on a federal
constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75 (1985).10
_________________________________________________________________

10 Roberts makes no attempt to establish cause and prejudice or a fun-
damental miscarriage of justice to excuse the default, and therefore we
do not consider whether either exists. See Kornahrens v. Evatt, 66 F.3d
1350, 1361-63 (4th Cir. 1995).

                    14
Although Roberts argued on direct appeal that the statement of the
trial court impermissibly chilled his right to testify, he claimed only
a violation of South Carolina law. Because Roberts did not contend
that the comments of the trial court violated a federal constitutional
right, he has failed to exhaust the claim he now seeks to raise. See
Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam) (holding
that argument to state court that an evidentiary ruling by trial court
violated state law was insufficient to exhaust claim that the ruling
constituted a violation of a federal constitutional right, and rejecting
the argument that similarity of claims is adequate to exhaust);
Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.) (explaining that in
order for federal claim to be exhausted, its substance must be pres-
ented to the state court), cert. denied, 118 S. Ct. 102 (1997). Because
presentation of this claim to the state court at this juncture would be
fruitless, see Drayton v. Evatt, 430 S.E.2d 517, 519-20 (S.C. 1993)
(holding that "errors which can be reviewed on direct appeal may not
be asserted for the first time, or reasserted, in post-conviction pro-
ceedings"), it is properly considered to be procedurally barred. See
George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996) ("A claim that
has not been presented to the highest state court nevertheless may be
treated as exhausted if it is clear that the claim would be procedurally
defaulted under state law if the petitioner attempted to raise it at this
juncture."), cert. denied, 117 S. Ct. 854 (1997). We therefore hold this
claim to be procedurally defaulted.

VI.

In sum, we conclude that all of Roberts' claims lack merit or are
procedurally defaulted and that he has failed to make the substantial
showing of the denial of a federal right required for the grant of a cer-
tificate of probable cause to appeal. See Lozada v. Deeds, 498 U.S.
430, 431-32 (1991) (per curiam) (explaining that to warrant the grant
of a certificate of probable cause to appeal, a habeas petitioner must
"make a substantial showing of the denial of[a] federal right" and that
to satisfy this showing, the petitioner "must demonstrate that the
issues are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further" (internal quo-
tation marks & emphasis omitted; alterations in original)).11 Accord-
_________________________________________________________________

11 We need not determine whether Roberts should have sought a certifi-
cate of appealability pursuant to 28 U.S.C.A. § 2253(c)(1) (West Supp.

                    15
ingly, we deny his application for a certificate of probable cause and
dismiss this appeal.

DISMISSED
_________________________________________________________________

1997) because his failure to make the showing required for the grant of
a certificate of probable cause necessarily indicates that he cannot satisfy
the standard for the grant of a certificate of appealability. See Lozada,
498 U.S. at 431-32; Murphy v. Netherland, 116 F.3d 97, 101 (4th Cir.)
(denying certificate of appealability under § 2253 in habeas corpus action
seeking relief from death sentence when petitioner failed to make a sub-
stantial showing of the denial of a constitutional right), cert. denied, 118
S. Ct. 26 (1997).

                    16
