                                                   Filed:   July 6, 2000

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            Nos. 99-7503(L)
                             (CA-95-3834-L)



James David Proctor,

                                                 Petitioner - Appellee,

          versus


Joseph P. Sacchet, et al,

                                              Respondents - Appellants.



                               O R D E R



     The court amends its opinion filed June 16, 2000, as follows:

     On page 6, footnote 3, lines 5-6 -- The citation to Noland v.

French is corrected to read:    134 F.3d 208, 213 (4th Cir. 1998).

                                           For the Court - By Direction



                                            /s/ Patricia S. Connor
                                                     Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES DAVID PROCTOR,
Petitioner-Appellee,

v.
                                                               No. 99-7503
JOSEPH P. SACCHET; ATTORNEY
GENERAL FOR THE STATE OF
MARYLAND,
Respondents-Appellants.

JAMES DAVID PROCTOR,
Petitioner-Appellant,

v.
                                                               No. 99-7584
ATTORNEY GENERAL FOR THE STATE OF
MARYLAND; JOSEPH P. SACCHET,
Respondents-Appellees.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-95-3834-L)

Argued: May 2, 2000

Decided: June 16, 2000

Before WILKINS and LUTTIG, Circuit Judges, and
Frank W. BULLOCK, Jr., United States District Judge
for the Middle District of North Carolina,
sitting by designation.

_________________________________________________________________
Reversed in part and affirmed in part by unpublished per curiam opin-
ion.

_________________________________________________________________

COUNSEL

ARGUED: Ann Norman Bosse, Assistant Attorney General, Crimi-
nal Appeals Division, OFFICE OF THE ATTORNEY GENERAL,
Baltimore, Maryland, for Appellants. Denise Charlotte Barrett, Assis-
tant Federal Public Defender, Baltimore, Maryland, for Appellee. ON
BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Crimi-
nal Appeals Division, OFFICE OF THE ATTORNEY GENERAL,
Baltimore, Maryland, for Appellants. James Wyda, Federal Public
Defender, Baltimore, Maryland, for Appellee.

_________________________________________________________________

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

_________________________________________________________________

OPINION

PER CURIAM:

James Proctor was convicted in 1981 by a Maryland jury of mur-
dering his seventeen-year-old brother-in-law and ward, of committing
sexual offenses against two fourteen-year-old girls, and of fraudu-
lently misappropriating funds as a fiduciary. He was sentenced to life
imprisonment and other prison terms. The district court granted his
petition for writ of habeas corpus on two of the three grounds he
presented for relief, and the state appeals. Proctor cross-appeals the
district court's rejection of his third ground for relief. For the reasons
that follow, we deny Proctor's petition on all grounds, reversing in
part and affirming in part the judgment of the district court.

I.

The events that preceded the murder of Eugene ("B.G.") Startley
Schubert, according to the Maryland Court of Special Appeals, were
as follows:

                     2
          Upon the death of their parents, B.G. and his sister, Kim
          Schubert, had been appointed wards of their sister, Cather-
          ine Schubert Proctor[,] and her husband, [Proctor]. The
          guardianship assets included a $45,000 insurance policy,
          Social Security Survivor Benefits, and annuity benefits.
          [Proctor], faced with financial difficulties, depleted the
          guardianship account without obtaining court approval. He
          admitted knowing that it was necessary to obtain the court's
          permission before using the guardianship funds.

          On 3 September 1980 [Proctor] had purchased a $100,000
          whole life policy with double indemnity for accidental death
          on the life of B.G. [Proctor] was the named beneficiary.1
          Evidence was also presented at trial to show that[Proctor]
          was listed as next of kin for B.G. on a $20,000 servicemen's
          group life insurance policy that B.G. was automatically eli-
          gible for as a member of the National Guard.

          Kim Schubert, B.G.'s sister and [Proctor's] sister-in-law
          and ward, testified to several sexual encounters between her
          and [Proctor]. Kim was fourteen at the time of these inci-
          dents. She further testified that she thought [Proctor] was
          jealous of a romance developing between B.G. and Laura
          Kirby who was also fourteen year[s] old.

          Laura Kirby, a friend of both Kim and B.G., would often
          spend the night with Kim. Laura testified to similar sexual
          encounters with [Proctor] during these visits. Their relation-
          ship culminated in sexual intercourse occurring several
          times over a two month period. [Proctor] admitted to hav-
          [ing] had sexual relationships with both girls.

J.A. 932-33 (opinion of Md. Court of Special Appeals).

Proctor claimed that the last time he saw B.G. alive was on the
morning of December 1, 1980, when Proctor alleged that he was
training B.G. in gun safety at Proctor's parents' home. Proctor
_________________________________________________________________

1 Proctor later purchased life insurance policies in smaller amounts on
the lives of Kim Schubert and his two children.

                    3
claimed that after the training session ended, and while B.G. was put-
ting the firearms in Proctor's car, he went inside his parents' home.
Proctor claimed that he then left the house, believing that B.G.'s
friend was going to take him to school.

On December 2, after having been informed by his wife that B.G.
had not returned home the night before, Proctor telephoned the Anne
Arundel County Police Department to report that B.G. had been miss-
ing since the previous morning. He specifically requested that the
police search the woods behind his parents' house, but they refused
to do so because the property was too large. Proctor left work for sev-
eral days, purportedly to search for B.G.

On December 8, Proctor called the police to report that he had
found B.G.'s body in the woods behind Proctor's parents' house. He
claimed that he had spotted a "bright orange object" in the woods
while he had been dumping old boxes at a dumpsite on the property.
He said that he had approached the object and discovered that it was
B.G.'s body and that B.G. was wearing a bright orange hunting vest.

It was subsequently determined that B.G. died from a single gun-
shot wound in the back. Detective Moore, a homicide detective, found
shrapnel underneath B.G.'s shirt and inside the wound. Four months
after the body was discovered, the police found a .30 caliber bullet
jacket in a tree thirty-four feet from where the police believed B.G.
had been standing when he was shot. The FBI discovered human pro-
tein on the bullet jacket. The police thereafter arrested Proctor for sex
crimes and for the murder of B.G.

Proctor was indicted by a grand jury in Anne Arundel County on
eleven counts: the deliberate and premeditated murder of B.G. Schu-
bert, six sex offenses against Kim and Laura, two felony theft
offenses, and two counts of fraudulent misappropriation by a fidu-
ciary. On September 9, 1981, a jury found Proctor guilty on all
counts, and sentenced him to life imprisonment for the murder con-
viction and to varying prison terms for the remaining counts.

Proctor appealed his convictions to the Maryland Court of Special
Appeals, and that court reversed his theft convictions, and affirmed

                    4
the other convictions. The Maryland Court of Appeals denied Proc-
tor's request for a writ of certiorari.

Proctor then filed a petition for post-conviction relief in the Circuit
Court for Anne Arundel County. The circuit court held a hearing on
Proctor's amended petition for post-conviction relief, at which Proc-
tor, his trial counsel, and the prosecutor at Proctor's trial testified. The
court denied Proctor's amended petition and the Maryland Court of
Special Appeals later denied his application for leave to appeal the
circuit court's decision.

Proctor filed a motion for a new trial, which was denied without
a hearing.

On December 15, 1995, Proctor filed a petition for writ of habeas
corpus in the federal district court, and an evidentiary hearing was
thereafter held on October 29, 1998.2 Accepting the federal magis-
trate's report and recommendation in part, the district court granted
Proctor's petition for writ of habeas corpus in part, and denied it in
part. These appeals by the State of Maryland and Proctor followed.

II.

The state argues that the district court erred when it held that Proc-
tor's absence during a communication from a juror to the trial court
substantially affected or influenced the jury's verdict. The state also
argues that the district court erred when it held that Proctor's trial
counsel was constitutionally ineffective. Proctor, in his cross-appeal,
argues that the district court erred when it rejected his claim that the
_________________________________________________________________

2 The state argues that the federal magistrate erred by holding an evi-
dentiary hearing. See Appellants' Br. at 31-33. In Townsend v. Sain, 372
U.S. 293, 318 (1963), overruled on other grounds by Keeney v. Tamayo-
Reyes, 504 U.S. 1 (1992), the Supreme Court held that a federal judge
has the discretion to hold an evidentiary hearing"where an applicant
. . . alleges facts which, if proved, would entitle him to relief." 372 U.S.
at 312. We conclude that the federal magistrate judge did not err in hold-
ing an evidentiary hearing.

                     5
prosecution knowingly presented a false theory of the case to the jury.
We address each argument below.3

A.

The State first contends that the district court erred in holding that
Proctor's absence during a communication from a juror to the trial
judge substantially affected or influenced the jury's verdict.

The facts relevant to the state's claim of error (and Proctor's under-
lying claim) are as follows. Proctor testified at trial that when he was
dumping old boxes at the dumpsite on his parents' property, he saw
something orange in the distance. He stated that, upon closer inspec-
tion, he realized that what he saw was B.G.'s body and that B.G. was
wearing an orange hunting vest. Proctor testified that the body was
approximately 100 to 150 yards from the dumpsite. J.A. 572-76.
Police Detective Moore, on the other hand, estimated that the body
was found approximately 300 to 500 yards from the dumpsite. J.A.
327.

During the trial, before the defense rested, a juror sent the follow-
ing note to the trial judge:

          Can the distance from the dump to the site where the body
          was found be accurately determined through some other
          means than estimates?

The trial judge neither responded to the note nor informed counsel
that the note had been received. Proctor's counsel did not discover
that the note had been written until after the trial ended.
_________________________________________________________________

3 Because Proctor filed his petition in 1995, the Antiterrorism and
Effective Death Penalty Act ("AEDPA") amendments do not apply to
Proctor's case. Instead, under the pre-AEDPA standard of review, we
review de novo questions of law and mixed questions of law and fact
decided by the state courts. Noland v. French, 134 F.3d 208, 213 (4th
Cir. 1998). However, any state court factual findings are presumed to be cor-
rect, as long as they were made after a hearing on the merits. See 28
U.S.C. § 2254(d) (pre-AEDPA).

                     6
The district court held that Proctor's absence during this critical stage4
of his trial had "a substantial and injurious effect or influence in deter-
mining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638
(1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)).

Assuming, without deciding, that the juror's communication con-
stituted a critical stage of trial at which Proctor had a constitutional
right to be present, we agree with the state that Proctor's absence
from this stage of the proceeding did not have a substantial or injuri-
ous effect on the jury's verdict. Proctor advances only one argument
as to how he was prejudiced by his absence from the communication
between the juror and the trial judge. He contends that had he and his
counsel been informed of the juror's question, his counsel would have
measured the actual distance from the dumpsite to the location where
B.G.'s body was found and presented that evidence during trial.
Because the actual distance was less than that estimated by Proctor
and considerably less than that estimated by Detective Moore --
some 45 yards instead of Proctor's estimated 100 to 150 yards and
Moore's estimated 300 to 500 yards5 -- Proctor argues that the jury
would have found credible his story that he first saw the orange vest
while he was dumping boxes, and therefore would have believed that
he did not murder B.G.
_________________________________________________________________

4 Proctor raised the issue of his absence from the communication in his
state motion for new trial, and the trial judge denied the motion. Proctor
raised the same issue in the Court of Special Appeals of Maryland, which
held that the juror communication was not a critical stage of the trial, and
that therefore Proctor had no right to be present. The district court held,
however, that the communication was a critical stage for constitutional
purposes, accepting the magistrate's recommendation that "[i]t is clear
that [the] jury communication[ ] occurred during a critical stage of the
trial," J.A. 1720, because it had "a relation, reasonably substantial, to the
fulness of his opportunity to defend against the charge," United States v.
Gagnon, 470 U.S. 522, 526 (1985). J.A. 1776.

5 On November 13, 1997, some sixteen years after B.G.'s body was
found, Proctor's federal habeas counsel sent an investigator from the
Office of the Public Defender, Neil Duke, to measure the actual distance
from the dumpsite to the place where the body was located. At the hear-
ing, Duke testified that the actual distance between the locations was 137
feet.

                     7
It is apparent, however, that the actual distance between the dump-
site and the location of B.G.'s body was of little, if any, relevance to
the jury's verdict, given that Proctor's testimony that he could see
B.G.'s body from the dumpsite was confirmed by the state's own wit-
ness, Police Officer Bearden, who arrived on the scene in response to
Proctor's call on December 8. Officer Bearden testified that, at that
time, he, too, could see something orange from the dumpsite. He testi-
fied that, from the dumpsite, "you could just barely make out a slight
orange glimpse in the woods . . . if you looked real hard." J.A. 245.
Because no witness testified to the contrary, there is every reason to
believe that the jury concluded, irrespective of the actual distance
between the dumpsite and B.G.'s body, that B.G.'s body was visible
from the dumpsite, and that the jury rejected Proctor's defense for
reasons unrelated to whether the body was or was not visible from
that location.

For example, Proctor's cellmate, Wooden, testified that Proctor
confessed to the murder.6 The bullet found near B.G.'s body came
from one of two types of guns, one of which was of a type that Proc-
tor had purchased but could not produce. Proctor had depleted B.G.'s
trust without authorization, and then taken out a large life insurance
policy on the seventeen-year-old B.G., who would be able, when he
turned eighteen, to demand an accounting of the trust funds from
Proctor. Proctor conceded that he committed multiple sexual offenses
against B.G.'s fourteen-year-old sister, and there was testimony that
Proctor was jealous of a budding romance between B.G. and Laura
Kirby, the other fourteen-year-old girl against whom Proctor commit-
ted sexual offenses. Finally, there was substantial reason to disbelieve
Proctor's explanation that he first learned of the location of B.G.'s
body as he was dumping boxes at the dumpsite on December 8,
including that he had waited a week to search the very property on
which he had last seen B.G. and then had not begun his search (alone
and with a flashlight) until almost dark.
_________________________________________________________________

6 Wooden also said that while he and Proctor were watching a televi-
sion show in which a woman shot a girl, Proctor said "that's what the girl
deserved" and "`[t]hat's why I killed . ..' and stopped right there." J.A.
488. Proctor also told Wooden he expected to get $30,000 or $40,000
because a relative had died. J.A. 489.

                    8
B.

The state also argues that the district court erred in holding that
Proctor's trial counsel rendered constitutionally inadequate assistance
in violation of Proctor's rights under the Sixth Amendment. In so
holding, the district court accepted Proctor's contentions that trial
counsel was objectively unreasonable in failing to refute the prosecu-
tion theory that B.G. was killed by a mercury-tipped bullet and in fail-
ing to refute the prosecution's bullet path analysis. We agree with the
Maryland Court of Appeals that, in both respects, Proctor's trial coun-
sel's performance was well within the range of reasonableness, and
in any event not prejudicial, when adjudged by the objective standard
of Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

1.

In closing argument, the prosecution contended that B.G. was
killed by a bullet tipped with mercury. For this contention, the prose-
cution relied on the trial testimony of three witnesses. First, Proctor's
cellmate, Wooden, testified that Proctor told him that he murdered
using a mercury-tipped bullet:

            Uhh . . . once he was sitting on the bed and said uhh . . .
            he was telling me about the . . . how he used to put mercury
            into the tips of bullets so when they hit they would explode
            and disintegrate and that's how they wouldn't uhh . . . con-
            vict him of murder because they didn't have the bullet. And
            they'd probably just say it was a hunting accident.

J.A. 486. Wooden also said that Proctor told him

            that when you put two drops, well, if you take like a hollow
            nosed point bullet and put two drops of uhh . . . mercury in
            it and put [it] over the tip, that when you fire it, when it hits
            the bullet will disintegrate on impact.

J.A. 489.

Second, Detective Moore testified that he saw what looked like
shrapnel around the wound on B.G.'s body, and that it was unusual

                       9
to find such "shrapnel." J.A. 302. Third, Proctor, a firearms dealer and
self-professed expert in loading and preparing ammunition, testified
that he was familiar with a bullet with mercury because he had read
about this technique in a gun magazine. J.A. 691-92.

The district court, after an evidentiary hearing, found that the
mercury-tipped bullet theory advanced by the prosecution was errone-
ous. The district court reached this conclusion based upon the testi-
mony of two doctors who testified at the federal habeas hearing. Dr.
Fowler, a Maryland medical examiner, testified that the presence of
shrapnel would be inconsistent with the use of a mercury-tipped bullet
because one would not expect to find debris outside the wound, but,
rather, mushrooming inside. Dr. Dixon, who performed the autopsy
on B.G. before trial, testified that she did not find any evidence of
trace mercury in the wounds. Based upon the testimony of these two
doctors, the district court concluded that trial counsel was ineffective
because he did not present "readily available" evidence to refute the
mercury-tipped bullet theory.

Viewing counsel's performance at the time of trial, 1981, we are
satisfied that counsel's performance was not objectively unreason-
able. Viewing the trial both as a whole and as it unfolded before Proc-
tor's trial counsel, we are confident that Proctor's counsel did not act
unreasonably by choosing not to attempt to refute the prosecution's
"mercury-tipped bullet theory." The prosecution did not present the
"theory" of the mercury-tipped bullet in opening argument. The pros-
ecution did not refer to a mercury-tipped bullet when it asked Detec-
tive Moore about the wound; Detective Moore merely described
finding shrapnel around the wound and testified, without more, that
that was unusual. J.A. 302-03. In fact, that the prosecution intended
to argue that B.G. was murdered with a mercury-tipped bullet was not
apparent until the prosecution's closing argument-- a fact, signifi-
cantly, that Proctor's federal habeas counsel did not contest in oral
argument before this court.

Proctor's habeas counsel now argues that trial counsel should have
anticipated that the prosecution would ultimately rely upon a
mercury-tipped bullet theory. But to accept this argument, we would
have to ignore entirely the way in which the case was prosecuted by
the state and require of Proctor's counsel that he have anticipated the

                    10
prosecution's reliance in closing argument upon a theory for which
there was little forewarning. During the trial, the prosecution offered
no expert testimony in support of its theory that a mercury-tipped bul-
let was used in the murder; it did not call an expert to testify on termi-
nal ballistics or the alteration of ammunition. Nor did it introduce
forensic evidence of the presence of mercury. Indeed, there was little
testimony that even touched upon mercury-tipping beyond the testi-
mony of Proctor's cellmate, Wooden. The autopsy report was entered
into the record, and there was no suggestion in that report of the pres-
ence of mercury. Nor was there proof of mercury found in the wounds
or on the bullet jacket that was found. And the only individual at trial
to claim any expertise in the loading of bullets was Proctor himself,
and he testified in response to the question whether he had altered
bullets with mercury: "No, sir I have not. Would that be done, there
would have to be traces of mercury." J.A. 692.

Proctor's counsel vigorously attempted to impeach the only wit-
ness, Wooden, whose testimony might have suggested the use of a
mercury-tipped bullet. Counsel cross-examined Wooden extensively,
questioning him inter alia about the benefits he would receive from
the government in exchange for his testimony. J.A. 490-500. And
counsel presented numerous witnesses to show that the conversations
Wooden purportedly had with Proctor could not have occurred on the
dates to which Wooden testified, because Proctor and Wooden were
not together on those dates. J.A. 710-14, 717-21, 744-48, 750-51. In
addition counsel questioned Wooden and presented witnesses that tes-
tified about the disagreements between Wooden and Proctor, J.A.
490-500, 752-55, including threats Wooden made that he would get
even with Proctor, J.A. 747-48 (witness testifying that Wooden said
of Proctor, "I'm going to get that boy, Proctor. . . . I know how to get
him back, he had a murder charge."). Given the complete absence of
any suggestion other than from Wooden during the entire course of
the trial that a mercury-tipped bullet theory would be advanced in
closing argument, we are satisfied that counsel's decision not to
attempt refutation of a mercury-tipped bullet theory fell well within
the range of objective reasonableness.

There is nothing in the record before us to suggest that, even had
trial counsel chosen to pursue forensic testimony to refute the prose-
cution's mercury-tipped bullet theory, counsel could have found doc-

                     11
tors who would testify on the theory in any event. Some seventeen
years after Proctor's conviction, the district court was presented with
the testimony of two such doctors. However, Dr. Fowler was still in
medical school at the time of Proctor's conviction and certainly would
not have been available to testify as an expert witness. And Dr.
Dixon, who examined B.G.'s body for trial, acknowledged that she
was unaware of the mercury-tipped bullet theory at the time of the
trial. J.A. 1720-21. Until Dr. Fowler provided her background on the
mercury-tipped bullet, she did not even know about this type of bullet
at the time of Proctor's federal evidentiary hearing in 1998.

And even if we were to conclude that trial counsel's performance
was objectively unreasonable, we would reject Proctor's argument
that he was actually prejudiced by counsel's performance. Proctor
argues that without the mercury-tipped bullet theory, the prosecution
would have had insufficient evidence upon which to find premedita-
tion. However, the jury readily could have found premeditation based
upon Proctor's purchase of the $100,000 life insurance policy, with
a double indemnity for accidental death, only three months before
B.G.'s murder.

2.

The district court also suggested that trial counsel was ineffective
when he did not present evidence to refute Police Detective Mock's
testimony on behalf of the prosecution that, if B.G. had been shot by
a stray bullet from the crest of the hill overlooking the location where
the body was found, the bullet would have struck the ground and not
the tree in which the bullet jacket was found.7 In so suggesting, the
_________________________________________________________________

7 It is not clear whether the district court actually held that trial counsel
was constitutionally ineffective for failing to refute the prosecution's bul-
let path analysis, and, if so, whether it believed that trial counsel's failure
in this regard actually prejudiced Proctor. However, in the district court's
footnote discussion of this claim, the court did suggest that counsel
should have presented an expert to refute the prosecution's bullet trajec-
tory theory. J.A. 1800 n.24. The district court based its suggestion upon
the affidavit testimony of a ballistic expert, Welch, that, because the bul-
let entered B.G.'s body at a thirteen-degree downward angle, the bullet
could have been fired from the crest of the hill and hit B.G. standing on
the ledge below. According to the district court, with this information,
the jury could have more readily credited the defense theory that B.G.
was actually shot by a stray bullet.

                     12
district court apparently accepted Proctor's argument that trial counsel
should have conceded that the bullet jacket found in the tree by
Detective Mock was from the bullet that killed B.G., and introduced
trajectory evidence to establish that that bullet could have originated
from the crest of the hill -- evidence that would have supported the
defense theory that a random shot by a hunter killed B.G. Proctor's
counsel instead pursued a strategy of proving that the bullet jacket
found in the tree, which was from a gun of a type purchased and
assertedly lost by Proctor, was not from the bullet that killed B.G. and
that the bullet that killed B.G. was never recovered.

We cannot conclude that counsel's strategy of arguing that the bul-
let jacket found in the tree was not that from the bullet that killed B.G.
and that a hunter's stray bullet, which was never found by police,
actually killed the boy, was objectively unreasonable, or even unrea-
sonable at all. And of course, Detective Mock's testimony that a bul-
let fired from over the crest of the hill would have lodged in the
ground, not in the tree, was consistent with and, in fact, supportive of,
this defense. Among other advantages, this strategy enabled counsel
to argue to the jury that the prosecution was unable to prove that the
bullet jacket found in the tree was from the bullet that killed B.G., and
therefore unable to prove that the bullet that killed B.G. was from the
type of gun purchased by Proctor, and at the same time to rely upon
testimony from the government's own witness that the bullet that
killed B.G. may well have been a stray from the gun of a hunter.
Given counsel's strategy of arguing that Mock's testimony was actu-
ally consistent with, and supportive of, the defense theory, no argu-
ment can be made that he was required to offer expert testimony to
refute that testimony. Even if this strategy chosen by counsel were not
imminently reasonable, which we believe it was, counsel elicited
from Mock on cross-examination his lack of expertise in ballistics on
the contingency that the jury might ultimately be unpersuaded by the
defense theory that B.G. was killed by a stray bullet. J.A. 379-85. In
combination, these strategies were more than reasonable under the
circumstances.

C.

Finally, Proctor argues that the district court erred in rejecting his
claim that the prosecution violated his constitutional due process

                     13
rights by knowingly presenting a false theory of Proctor's case when
it advanced the mercury-tipped bullet theory in its closing argument.
We disagree.8

To show that his due process rights were violated by the prosecu-
tion's presentation of the mercury-tipped bullet theory, Proctor must
show that the prosecution knew that the theory or evidence was false
at the time of the trial. See Napue v. Illinois, 360 U.S. 264, 269 (1959)
("[A] conviction obtained through use of false evidence, known to be
such by representatives of the State, must fall under the Fourteenth
Amendment." (emphasis added)).

Even assuming that that theory is now known to be false, we agree
with the district court that Proctor has not established that the prose-
cution knew the theory to be false in 1981, when it offered the theory.
As noted above, the theory that B.G. was shot by a mercury-tipped
bullet was supported by the trial testimony of Proctor's cellmate,
Wooden, as well as by Proctor himself, and, although not explicitly
so, the testimony of other witnesses at least provided a foundation for
argument of such a theory.9 Given this testimony, and given Proctor's
failure to produce evidence suggesting otherwise, we have no reason
to believe that the prosecution knew the mercury-tipped bullet theory
to be false when it presented that theory to the jury.

We therefore conclude that the district court correctly rejected
Proctor's claim that the prosecution knew the mercury-tipped bullet
theory to be false when it presented that theory to the jury.
_________________________________________________________________

8 Both the Maryland post-conviction court and the federal district court
rejected this claim. The Maryland court found that the prosecution did
not adopt a mercury-tipped bullet theory, J.A. 1129, and the district court
found that the mercury-tipped bullet theory was false, but held that the
prosecutor was "at most negligent in his investigation of the case," J.A.
1793, but did not "knowingly" present a false theory of the case.

9 Proctor asserts that the prosecution knew the mercury-tipped bullet
theory to be false when it discovered that there was no trace of mercury
in B.G.'s wound. However, Drs. Fowler and Dixon both testified at the
habeas evidentiary hearing that a mercury-tipped bullet could have
caused the wound without leaving behind any trace of mercury.

                    14
III.

For the foregoing reasons, that portion of the district court's judg-
ment granting the petition for habeas relief with regard to Proctor's
juror communication and ineffective assistance of counsel claims is
reversed, and that portion of the district court's judgment denying
Proctor's petition with regard to the claim that the prosecution know-
ingly presented a false theory of the case is affirmed.

REVERSED IN PART; AFFIRMED IN PART

                    15
