                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-8374


WILLIAM HARVEY COUSINS,

                Petitioner – Appellant,

           v.

KATHLEEN S. GREEN, Warden;      DOUGLAS    F.   GANSLER,    Attorney
General of Maryland,

                Respondents – Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:06-cv-01053-CCB)


Argued:   January 25, 2011                  Decided:       March 16, 2011


Before KING, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished opinion. Judge King wrote the opinion,
in which Judge Agee and Judge Davis joined.


ARGUED:   Katie Serfas, WAKE FOREST UNIVERSITY, School of Law,
Appellate Advocacy Clinic, Winston-Salem, North Carolina, for
Appellant.   Mary Ann Rapp Ince, OFFICE OF THE ATTORNEY GENERAL
OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: John
J. Korzen, Director, Megan Elizabeth Bode, Eleanor Rhoades
Trefzger, WAKE FOREST UNIVERSITY, School of Law, Appellate
Advocacy Clinic, Winston-Salem, North Carolina, for Appellant.
Douglas F. Gansler, Attorney General of Maryland, Baltimore,
Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
KING, Circuit Judge:

       William Harvey Cousins, a Maryland prisoner, appeals from

the    district    court’s    denial   of    his     28    U.S.C.    § 2254     habeas

corpus petition, in which he asserts that a violation of his

Sixth Amendment right to the effective assistance of counsel

undermines his Maryland convictions.                 See Cousins v. Green, No.

1:06-cv-01053 (D. Md. Oct. 10, 2008) (the “Federal Opinion”). 1

More       specifically,    as    spelled    out      in    our     certificate     of

appealability      (the    “COA”),    Cousins     maintains       that    his   “trial

counsel provided ineffective assistance by failing to adequately

investigate       and      discover    an     exculpatory           witness”      (the

“Ineffective      Assistance      Claim,”    or      the   “Claim”).        For   the

reasons explained below, we reject the Ineffective Assistance

Claim and affirm the district court.



                                        I.

                                        A.

       In August 1996, Cousins was tried in the Circuit Court for

Prince      George’s    County,   Maryland,     on    charges     of     first-degree

murder and use of a handgun in the commission of a crime of

violence, arising from the December 22, 1995 shooting death of

       1
       The unpublished Federal Opinion is found at J.A. 1113-29.
(Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)



                                        3
Steven Moeller.        The prosecution’s theory was that Cousins had

been involved in a traffic dispute with Moeller, threatened to

kill   him,    and    followed   up    on       the   death   threat        by   shooting

Moeller a few days later.              Lacking eyewitness testimony, the

prosecution relied heavily at trial on two witnesses who said

that    Cousins      had   confessed     to       Moeller’s      shooting:          Ebony

Coleman, a former friend of Cousins; and Betty Mills, who was

Coleman’s aunt.        The defense theory was that Coleman himself was

the likely shooter, and that Cousins was the “victim of a cover-

up designed to exonerate one person and implicate another.”                              Br.

of Appellant 3.        In defending Cousins, his lawyer called three

witnesses,      including    Cousins        himself.          The        jury    convicted

Cousins on both charges — murder (albeit in the second degree)

and use of a handgun in the commission of a crime of violence.

On September 13, 1996, Cousins was sentenced to thirty years on

the murder conviction, plus a consecutive term of twenty years

on the handgun conviction.

                                         B.

       After   his    sentencing,     Cousins         appealed      to    the    Court    of

Special Appeals of Maryland, raising several issues that are

unrelated      to    the   Ineffective          Assistance    Claim.             Cousins’s

convictions and sentence were affirmed on appeal, see Cousins v.

State, No. 1425 (Md. Ct. Spec. App. May 19, 1997), and the Court

of Appeals of Maryland thereafter denied certiorari, see Cousins

                                            4
v. State, 697 A.2d 913 (Md. 1997).                       Cousins then filed two state

habeas corpus petitions — on December 18, 1997, and October 30,

1998 — both of which were withdrawn without prejudice.                               In his

aborted     state    habeas        petitions,            Cousins    presented       multiple

ineffective assistance claims that were also unrelated to the

Claim before us today.

      On March 5, 2002, Cousins, proceeding pro se, filed another

petition for state habeas corpus relief in the Circuit Court for

Prince    George’s         County,       for       the     first    time     raising       the

Ineffective        Assistance        Claim         that     underlies       this     appeal.

Cousins     maintained        that       his        lawyer       was     constitutionally

ineffective in failing to investigate and secure the testimony

of an exculpatory eyewitness, William Smoot.                             The state habeas

court appointed counsel for Cousins, who subsequently filed two

supplemental habeas petitions. 2                   The state court then conducted

an   evidentiary         hearing    on     the     Ineffective          Assistance    Claim,

beginning     on    September        20,       2004,      when     it    heard     from    two

witnesses:          Cousins       and    his       trial     lawyer.         After        those

proceedings,       the    court    continued         the    evidentiary       hearing       for




      2
       In his various state habeas petitions, Cousins asserted at
least four ineffective assistance claims, and also contended
that the prosecution’s failure to disclose an exculpatory police
report violated Brady v. Maryland, 373 U.S. 83 (1963).



                                               5
several months until Smoot, who was incarcerated, could appear

and testify.

     On March 7, 2005, Smoot testified before the state habeas

court, asserting that, at the time of Moeller’s shooting, Smoot

was on his way to visit a friend, Ruth Wingate, who lived two

doors from the Moeller murder scene.         While exiting his vehicle,

Smoot “heard some gunshots” and saw “somebody leaning out the

window.”    J.A. 1009.     That “somebody” was Ebony Coleman, one of

the key prosecution witnesses against Cousins, and the person on

whom the defense had sought to blame the Moeller murder.             Id. at

1011.     Smoot did not report what he saw to the police or anyone

else, but instead fled the scene before seeing or speaking to

Wingate.

     In    the   state   habeas   court’s   evidentiary   hearing,    Smoot

offered the following testimony concerning whether Wingate knew

that he was near her home when the Moeller shooting occurred:

     Q [Direct]:    But she knew you were           there   when   it
     happened based on your understanding?

     A:     Yes.

                                   * * *

     Q [Cross]:    So when the shooting occurred Ms.
     Wingate didn’t know that you were outside; is that
     correct?

     A:     Right.

                                   * * *


                                     6
      Q [Redirect]: You testified on direct that Ruth
      Wingate did know you were there the night of the
      shooting?

      A:   She knew, she knew — she should have known that I
      was outside at the door because I was on my way to her
      house, I was at her house.   She knew I was coming to
      her house.

                                     * * *

      THE COURT:      But     did    she   know   you   were   actually
      there?

      A:   She didn’t know I was actually there at the time
      that incident occurred.

      Q:   But later she did find out that you were there?

      A:   Correct.

J.A. 1017-21.      According to Smoot, at “some point after the

shooting,” he spoke with his friend Wingate, but failed to tell

her what he had seen near her home on the occasion of Moeller’s

murder.    Id. at 1019.     Indeed, Smoot never specified when or how

Wingate had “later” discovered that he was near her home when

Moeller was shot.

      In May 2005, two months after its evidentiary hearing, the

state habeas court — applying Strickland v. Washington, 466 U.S.

668   (1984)   (recognizing    that     ineffective     assistance   entails

deficient performance and resulting prejudice) — rejected the

Ineffective Assistance Claim, concluding that “there was no way

for trial counsel to have discovered [Smoot] even after doing a

reasonable investigation.”          State v. Cousins, No. 96-091X, slip


                                       7
op. at 4 (Md. Cir. Ct. May 11, 2005) (the “State Opinion”). 3

Ultimately, according to the State Opinion, “there was no way

that trial counsel could have independently known of Mr. Smoot

because he never came forward to the police nor did he tell

anyone what he witnessed.”         Id.          Thus, without reaching the

question of whether Cousins’s lawyer had performed deficiently,

the state court denied the Claim for failure to show prejudice.

      On June 10, 2005, Cousins filed an application in the Court

of Special Appeals of Maryland for leave to appeal the state

habeas court’s rejection of the Ineffective Assistance Claim.

That application for appeal was denied on October 26, 2005.                 On

February 2, 2006, the Court of Special Appeals also denied a

motion for reconsideration of its denial of an appeal.

                                    C.

      On April 26, 2006, Cousins, again proceeding pro se, filed

his 28 U.S.C. § 2254 petition in the District of Maryland.                 His

petition presented three constitutional contentions, including

the   assertion    that   his   trial       counsel   was   “ineffective   for

failing to investigate and subpoena a witness who saw another

individual commit the murder.”              J.A. 7 (emphasis omitted). 4    By


      3
          The State Opinion is found at J.A. 1072-82.
      4
        The two other claims presented in Cousins’s § 2254
petition were that the prosecution violated Cousins’s Brady
rights,   and  that  Cousins’s lawyer  was  constitutionally
(Continued)
                                        8
the Federal     Opinion     of   October    10,   2008,   the   district    court

denied Cousins’s § 2254 petition in all respects.                   In disposing

of the Ineffective Assistance Claim, the court explained that,

“[g]iven the witness testimony provided at the post-conviction

hearing, the state court’s determination that counsel could not

have independently known of Mr. Smoot is reasonable and well-

supported in the record.”         Federal Opinion 12.

     Cousins thereafter timely noticed this appeal, and, on May

5, 2009, we awarded the COA on the Ineffective Assistance Claim.

We also appointed counsel to represent Cousins, and we possess

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



                                      II.

     We review de novo a district court’s denial of 28 U.S.C.

§ 2254    habeas   corpus    relief   on    the   basis   of    a   state   court

record.    See Bell v. Ozmint, 332 F.3d 229, 233 (4th Cir. 2003).

Pursuant to § 2254, however, “the scope of our review is highly

constrained.”      Jackson v. Johnson, 523 F.3d 273, 276 (4th Cir.

2008).    A state court’s factual determinations are presumed to

be correct, and a § 2254 applicant bears the burden of rebutting

this statutory presumption by “clear and convincing evidence.”



ineffective for failing to seek the exclusion of evidence of his
prior convictions.



                                       9
§ 2254(e)(1); see Tucker v. Ozmint, 350 F.3d 433, 439 (4th Cir.

2003).      Section 2254 relief may only be awarded if the state

court’s adjudication of the claim “(1) resulted in a decision

that was contrary to, or involved an unreasonable application

of,    clearly    established       Federal     law,    as     determined    by       the

Supreme Court,” or “(2) resulted in a decision that was based on

an    unreasonable     determination     of     the    facts    in   light       of   the

evidence presented in the State court proceeding.”                   § 2254(d).



                                       III.

       The theory underlying the Ineffective Assistance Claim is

simple:     Under the circumstances, Cousins’s lawyer should have

conducted thorough interviews with persons who lived near the

scene of Moeller’s murder, and, had the lawyer done so, the

investigation would have revealed, through Ruth Wingate, that

William Smoot was present at the murder scene when the fatal

shots were fired.       Moreover, having identified Smoot and secured

his    trial   testimony,     the     defense      theory    that    it    was    Ebony

Coleman who had murdered Moeller would have been bolstered to

the point that Cousins would not have been convicted.

                                        A.

       As   the   state      habeas    court       correctly     recognized,          the

Ineffective Assistance Claim is governed by the Supreme Court’s

seminal     decision    in   Strickland       v.   Washington,       466    U.S.      668

                                        10
(1984).       The Strickland decision explained that a state prisoner

alleging constitutionally ineffective assistance must show (1)

deficient performance, i.e., “that counsel’s representation fell

below an objective standard of reasonableness,” 466 U.S. at 688,

plus (2) resulting prejudice, i.e., “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,” id. at 694.

These two requirements — deficient performance plus prejudice —

are    commonly      referred   to    as    Strickland’s      “performance”        and

“prejudice” prongs.

        Although an ineffective assistance claim must satisfy both

of    the    Strickland   prongs,     the       Supreme   Court    has     recommended

that,       when   possible,    the   prejudice       prong       should    be   first

addressed.         Indeed, Strickland itself explained that there is no

need “to address both components of the inquiry if the defendant

makes an insufficient showing on one.”                    466 U.S. at 697.          As

Justice O’Connor recognized,

        a   court   need   not   determine   whether    counsel’s
        performance   was   deficient   before    examining   the
        prejudice suffered by the defendant as a result of the
        alleged    deficiencies.        The    object    of    an
        ineffectiveness claim is not to grade counsel’s
        performance.     If it is easier to dispose of an
        ineffectiveness claim on the ground of lack of
        sufficient prejudice, which we expect will often be
        so, that course should be followed.

Id.     Here, the state habeas court disposed of the Ineffective

Assistance Claim in the procedural manner recommended by the

                                           11
Strickland decision, first addressing the prejudice prong and

concluding that Cousins was unable to show prejudice.                            The state

habeas court then declined to assess the performance prong at

all.     Accordingly, we begin our review of the Claim by assessing

Cousins’s contention on the prejudice prong of Strickland.

                                            B.

       In   order    to    properly      analyze      the    prejudice      prong      of   an

ineffective       assistance        claim     (without        first     assessing           the

performance       prong),     a     court     must      assume      that     the       lawyer

performed deficiently.              Next, the court must simply determine

whether the lawyer’s assumed deficiency had the potential of

influencing the outcome of the proceedings.                           Often, a habeas

petitioner       alleges     that     his    lawyer’s        deficiency         involved      a

failure to introduce a critical piece of evidence, or a failure

to   adduce      critical    testimony.          In    such    a    circumstance,           the

prejudice analysis necessitates an assessment of the effect, if

any, the unintroduced evidence might have had on the verdict, in

light of the evidence actually presented.                           See, e.g., United

States      v.   Roane,     378     F.3d    382,      409    n.15    (4th       Cir.   2004)

(examining       credibility       and     weight     of     evidence      to    determine

whether failure to call potential witness affected outcome of

trial);     Fisher    v.    Lee,     215    F.3d      438,    451    (4th       Cir.    2000)

(assessing likely effect of testimony from potential witnesses

in light of other evidence).

                                            12
        Here, by contrast, the state habeas court never reached the

issue of how Smoot’s evidence would have been perceived by the

jury, because the State Opinion concluded that his testimony

would not have been available at trial even if Cousins’s lawyer

had conducted the comprehensive neighborhood investigation now

being suggested.          Accordingly, we need only examine the factual

basis    for     that    conclusion.       And,     if    it    is    a     well-founded

conclusion, Cousins is not entitled to § 2254 relief and our

review ends.

        Of course, in conducting our assessment of the Ineffective

Assistance       Claim,    we    presume    that    the       state   habeas       court’s

factual     findings       are    correct,       and     we    accord       them     great

deference.       Indeed, to prevail on his Claim, Cousins is obliged

to    “rebut[]     the     presumption      of     correctness         by    clear     and

convincing evidence,” § 2254(e)(1), and then show that the state

court’s ruling “was based on an unreasonable determination of

the facts in light of the evidence presented” during the state

proceedings, § 2254(d)(2).            See Winston v. Kelly, 592 F.3d 535,

555     (4th     Cir.     2010)    (“If      a     petitioner         succeeds       under

§ 2254(e)(1), he has merely proven that the state court finding

was incorrect.           To satisfy § 2254(d)(2), the petitioner must

prove     that    the     state    court    was     not       only    incorrect,       but

objectively unreasonable.”).



                                           13
                                               C.

      Unfortunately for Cousins, the state habeas court provided

an unassailable factual basis for its ruling that Cousins had

failed to show prejudice:                 that “there was no way for trial

counsel to have discovered [Smoot] even after doing a reasonable

investigation,” and further, that “[t]here was no way that trial

counsel could have independently known of Mr. Smoot because he

never came forward to the police nor did he tell anyone else

what he had witnessed.”           State Opinion 4.              Consistent with those

findings,     Smoot      testified        in    the   state      court’s    evidentiary

hearing that, despite claiming to have been an eyewitness to the

Moeller     shooting,      he   had       never     provided      his    story     to    the

authorities.       In fact, until much later, Smoot did not advise

anyone     about   the   events    that        he   had    witnessed.       Immediately

after witnessing the Moeller murder, according to Smoot, he got

into his vehicle and fled the scene.

      As a result, the Ineffective Assistance Claim rests on a

tenuous     theory:         that      a        thorough     investigation          in    the

neighborhood of the murder scene would have uncovered Wingate,

who   in    turn   would    have      identified          her   friend     Smoot    as   an

exculpatory witness.            The viability of this theory hinges on

whether the state court record supports the proposition that

Wingate knew that Smoot was outside her door when Moeller was



                                               14
shot, and that she would have advised Cousins’s lawyer of that

fact.

       Importantly, Wingate has never testified in any of these

proceedings — either in Cousins’s trial or during the state

habeas    court’s      evidentiary      hearing.         Accordingly,       there    is

nothing in the record from Wingate concerning her knowledge of

Smoot’s whereabouts at the time of the Moeller murder.                       Rather,

we have only Smoot’s testimony concerning his belief of what

Wingate knew, or what she ought to have known.                        In the state

court’s evidentiary hearing, Smoot initially testified that it

was his “understanding” that Wingate knew he was outside her

door when Moeller was shot.             J.A. 1017.        On cross-examination,

however,       he   confirmed    that   “when      the   shooting     occurred      Ms.

Wingate    didn’t     know   that    [he    was]    outside.”         Id.   at    1019.

Pressed further on the point, Smoot equivocated, asserting only

that Wingate “should have known” he was outside her door because

he was on his way to her house.                 Id. at 1021.     Smoot eventually

said    that    Wingate   only    “later”       found    out   that    he   had   been

outside her door when Moeller was shot, and yet failed to ever

specify when or how Wingate had acquired such knowledge.                            Id.

As a result, Smoot’s evidence is far from compelling and, absent




                                           15
a more concrete showing of Wingate’s knowledge, the state habeas

court was presented with speculation only. 5

     In these circumstances, we are unable to disturb the state

habeas court’s factual finding that a reasonable investigation

would not have revealed Smoot’s purported eyewitness testimony.

Thus, we are also unable to disagree with the legal conclusion

to which that finding gives rise:          even if Cousins’s lawyer

performed   deficiently,   his   performance   did   not   prejudice   the

outcome of the trial. 6    Accordingly, the Ineffective Assistance

Claim was properly rejected by the district court, and we must

affirm.




     5
        Notably, Smoot testified that he eventually had a
conversation with Wingate about the Moeller shooting, during
which Smoot failed to inform Wingate that he had seen the
shooting occur.   See J.A. 1019. If this evidence is accurate,
Wingate would have had no reason to suggest Smoot as an
eyewitness to Moeller’s shooting, even if she had been
questioned by Cousins’s lawyer.
     6
       In concluding that Cousins failed to make a showing of
prejudice sufficient to satisfy Strickland, the state habeas
court also found — as an alternative basis for its rejection of
the Ineffective Assistance Claim — that even if Smoot had been
discovered prior to trial, he “would not have come to court” and
“would not have testified truthfully.”        State Opinion 4.
Because the state habeas court’s finding that the lawyer could
not have discovered Smoot was a sufficient basis for its
prejudice ruling, we need not address the court’s alternative
basis for that determination.


                                   16
                               IV.

     Pursuant to the foregoing, we affirm the district court’s

denial of Cousins’s petition for § 2254 habeas corpus relief.



                                                         AFFIRMED




                               17
