               Vacated by Supreme Court, June 27, 2005




                                                         Volume 1 of 2

                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


JEFFREY CLAYTON KANDIES,               
              Petitioner-Appellant,
                 v.
                                                   No. 03-9
MARVIN POLK, Warden, Central
Prison, Raleigh, North Carolina,
               Respondent-Appellee.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
             N. Carlton Tilley, Jr., Chief District Judge.
                           (CA-99-764-1)

                         Argued: June 2, 2004

                      Decided: September 24, 2004

 Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.



Affirmed by published opinion. Judge Gregory wrote a separate opin-
ion and announced the judgment. Judge Michael wrote an opinion
concurring in the judgment. Judge Traxler wrote an opinion concur-
ring in the judgment.


                              COUNSEL

ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDEN-
HOUSE & FIALKO, Chapel Hill, North Carolina, for Appellant.
2                           KANDIES v. POLK
Edwin William Welch, Special Deputy Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Caro-
lina, for Appellee. ON BRIEF: Matthew Stiegler, CENTER FOR
DEATH PENALTY LITIGATION, Durham, North Carolina, for
Appellant.


                              OPINION

GREGORY, Circuit Judge, writing separately in parts I, II, III, IV and
announcing the judgment in part V:

   Petitioner-appellant Jeffrey Clayton Kandies was sentenced to
death after being found guilty by a North Carolina jury of the first-
degree rape and first-degree murder of Natalie Lynn Osborne, the
four-year-old daughter of his fiancee, Patricia Craven. Following
exhaustion of his rights of review in the North Carolina courts, Kan-
dies filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 in the United States District Court for the Middle District of
North Carolina asserting fourteen grounds for relief. Pursuant to the
Federal Magistrate Act, 28 U.S.C. § 636(b)(1)(B), the district court
referred Kandies’s habeas petition to a magistrate judge. The magis-
trate judge reviewed Kandies’s claims and recommended that Kan-
dies’s habeas petition be denied. After Kandies objected to the
magistrate judge’s recommendation, the district court reviewed de
novo, as required by the Federal Magistrate Act, id. § 636(b)(1), and
adopted the magistrate judge’s recommendation. In addition, the dis-
trict court declined to issue Kandies a certificate of appealability for
any of his claims. We subsequently issued Kandies a certificate of
appealability for his claims that (1) his trial counsel rendered ineffec-
tive assistance during the penalty phase by failing to investigate
whether he was sexually abused as a child and (2) the North Carolina
Supreme Court erred by concluding that the State’s use of peremptory
challenges to strike prospective African American jurors was not vio-
lative of the Supreme Court’s holding in Batson v. Kentucky, 476 U.S.
79 (1986). For the reason’s that follow, we affirm the district court’s
denial of Kandies’s habeas petition.

                                   I.

 On Easter Monday, April 20, 1992, Kandies, who is a Caucasian
American, went to the home of Patricia Craven, who was his fiancee
                           KANDIES v. POLK                            3
at the time and the mother of his one-year-old son, Jeremy. At
approximately 4:45 p.m., Kandies left Ms. Craven’s home to go to the
grocery store, which is around the same time that Ms. Craven last saw
her daughter, Natalie, alive. At approximately 7 p.m., Kandies, who
had not returned to Ms. Craven’s home, went to a small convenience
store located about one-half mile from Ms. Craven’s home. While
inside the convenience store, Kandies complained to the clerk, Caro-
lyn Wood, that he hurt his hand fighting with his brother. In response,
Wood, who noticed that Kandies’s hand was beginning to swell, sug-
gested that Kandies have his hand examined by a medical technician
that happened to be inside the store. Kandies, however, declined to
have the medical technician examine his hand and immediately left
the store. Thereafter, Kandies returned to Ms. Craven’s home at
approximately 7:30 p.m.

   Upon arriving at Ms. Craven’s home, Kandies was informed that
Natalie could not be located. Consequently, Kandies contacted the
Asheboro Police Department and reported Natalie missing. In
response to Kandies’s telephone call, the Asheboro Police Depart-
ment conducted an extensive, but unsuccessful, search for Natalie on
the evening of April 20th.1 Nonetheless, the Asheboro Police Depart-
ment learned through its search and investigation that Ms. Craven and
Natalie’s father, Ed Osbourne, were involved in a custody dispute.
Based on this information, the Asheboro Police Department began to
suspect that Ms. Craven and Kandies may have falsely reported Nata-
lie missing in an effort to prevent Ed Osbourne from gaining custody
of Natalie. As a result, the Asheboro Police Department undertook
efforts on April 21st, the day after Natalie was reported missing, to
determine whether Ms. Craven and Kandies were hiding Natalie. As
part of these efforts, the Asheboro Police Department requested Kan-
dies’s permission to search his apartment, which was located approxi-
mately ten miles from Ms. Craven’s home in the town of Randleman,
North Carolina. After Kandies consented to the search, the Asheboro
Police Department searched Kandies’s apartment and concluded that
Natalie was not there.
  1
   During this search, Kandies returned to the convenience store located
near Ms. Craven’s home and asked Wood whether she had seen Natalie.
Although she had not seen Natalie, Wood did notice that Kandies had
black garbage bags in the back of his truck.
4                          KANDIES v. POLK
   In addition to searching Kandies’s apartment, the Asheboro Police
Department brought Ms. Craven and Kandies in for questioning on
April 22nd. After being questioned and released by the Asheboro
Police Department, Kandies returned to Ms. Craven’s home, where
she immediately began to question him about Natalie’s disappear-
ance. As a result, Kandies told Ms. Craven that he accidentally hit
Natalie with his truck as he departed for the grocery during the early
evening of April 20th. Kandies also told Ms. Craven that he panicked
after hitting Natalie because he was drinking and thus decided to take
Natalie to his apartment, where he would be able to clean her off and
determine the extent of her injuries. Kandies further told Ms. Craven
that Natalie was making gurgling noises on the way to his apartment
and that her head did not look right. Lastly, Kandies told Ms. Craven
that, after trying to clean Natalie up, he placed Natalie’s body and her
clothes in a garbage bag that he hid in a bedroom closet.

   Immediately after speaking with Kandies, Ms. Craven contacted
the Asheboro Police Department and described what she had been
told by Kandies. The Asheboro Police Department thereafter took
Kandies into custody, where, after being read his Miranda rights, he
provided two separate statements detailing the events of April 20th.
In addition, Kandies provided the Asheboro Police Department infor-
mation about the location of Natalie’s body and consented, in writing,
to a second search of his apartment. Accordingly, the Asheboro Police
Department searched Kandies’s apartment and found Natalie’s body
in a plastic bag hidden in a bedroom closet under a pile of clothes and
carpet pieces. The plastic bag found by the Asheboro Police Depart-
ment also contained Natalie’s bloody playsuit and underpants, which
were both turned inside out.

   After Natalie’s body was recovered, Dr. Thomas Clark, a forensic
pathologist, performed an autopsy, which revealed that there were
blunt force traumas on Natalie’s head, neck, skull, back and both
sides of her body. In addition, Dr. Clark’s autopsy revealed that some
of the bruises on Natalie’s body were small and rounded and distrib-
uted in a pattern that suggested they were caused by an adult hand.
Moreover, Dr. Clark’s autopsy revealed that there were injuries to
Natalie’s vaginal area. Specifically, Dr. Clark found that (1) both
sides of Natalie’s vagina, which was full of blood, were bruised, (2)
blunt force trauma caused a tear in the back of Natalie’s vagina, and
                           KANDIES v. POLK                            5
(3) Natalie’s vagina opening was gaping. In light of these injuries to
Natalie’s vaginal area, Dr. Clark opined that Natalie had been sexu-
ally assaulted at or about the time of her death.

   Based on the findings of Dr. Clark’s autopsy, the Asheboro Police
Department brought Kandies in for further questioning on the evening
of April 23rd. During this interrogation, the officers investigating
Natalie’s death mentioned that there was a possibility that she may
have been sexually assaulted. In response, Kandies stated: "‘I told
[Ms. Craven] you were going to say I did something like that to Nata-
lie.’" State v. Kandies, 467 S.E.2d 67, 74 (N.C. 1996)(quoting Kan-
dies’s statements to police). Thereafter, Kandies provided the
Asheboro Police Department with a written statement denying that he
sexually assaulted Natalie. In his written statement, Kandies also
asserted that he took Natalie to his house, took her clothes off and
placed her inside the bathtub to determine the extent of her injuries.
Kandies further asserted in his written statement that he was unable
to handle the situation and as result may have strangled Natalie. In
addition to Kandies’s written statement, the Asheboro Police Depart-
ment completed a suspect rape kit on Kandies, which included sam-
ples of head and pubic hair, saliva and blood. Moreover, a forensic
serologist conducted a luminal and blood test on Kandies’s apartment
and truck, which revealed the presence of blood in several areas of the
apartment and on the interior of the truck’s passenger door.

   On May 11, 1992, Kandies was indicted by a grand jury in the
Randolph County Superior Court for the first-degree murder of Nata-
lie. On July 13, 1992, Kandies was also indicted in the Randolph
County Superior Court for the first-degree rape of Natalie. On April
4, 1994, jury selection commenced for Kandies’s capital trial. During
jury selection, the State exercised its peremptory challenges to strike
nine prospective African American jurors. On each occasion, Kan-
dies’s trial counsel asserted that the State was striking these prospec-
tive jurors because of their race and was thus acting in contravention
to the Supreme Court’s holding in Batson v. Kentucky, 476 U.S. 79
(1986). In response, the State voluntarily put forth race neutral rea-
sons for peremptorily challenging each of the nine prospective Afri-
can American jurors. After listening to the reasons proffered by the
State, the Randolph County Superior Court denied all of the Batson
challenges raised by Kandies’s trial counsel. At the end of jury selec-
6                           KANDIES v. POLK
tion, the twelve member jury empaneled for Kandies’s capital trial
included two African Americans.

   After the jury was empaneled, Kandies was tried during the April
4, 1992 criminal session of the Randolph County Superior Court.
During the guilt phase, Kandies’s trial counsel did not present any
evidence to rebut the State’s case-in-chief. Consequently, Kandies
was found guilty, on April 20, 1994, of the first-degree murder and
first-degree rape of Natalie. After the jury rendered its guilty verdict,
the court scheduled Kandies’s sentencing hearing for the following
day. At Kandies’s sentencing hearing, his trial counsel presented the
testimony of ten witnesses, among which included Dr. Brian Glover
and Dr. Claudia Coleman, clinical psychologists, and Kandies’s
mother, Peggy Kandies.2

  Dr. Glover, who met with Kandies on three separate occasions for
approximately three hours each time,3 testified that Kandies suffered
    2
     Kandies’s trial counsel also called the following witnesses: (1) Jodie
Griffen, Kandies’s former landlord in Bath, Maine, who testified that
Kandies "was a very considerate father . . . very understanding . . . [who]
came home from work . . . [and] played with [his children] . . . took them
for rides . . . was always there for them," J.A. 1039; (2) Ken Curtis, a
driving instructor for one of Kandies’s former employers, who testified
that Kandies was able to complete a six week driving course in two
weeks and adored his family, id. at 1045; (3) Samuel Hoover, a clerk at
a local alcohol store, who testified that Kandies purchased a twelve pack
of beer three to four times a week, id. at 1049; (4) Thomas L. McIver,
a detective for the Asheboro Police Department, who testified that a
check of Kandies’s criminal record only revealed a conviction for driving
while impaired, id. at 1076-83; (5) Brian Kennedy, Kandies’s childhood
friend, who testified that he saw Kandies’s step-father drunk and that
Kandies was upset when he found out his step-father was not his biologi-
cal father, id. at 1143-46; (6) Douglas Cattell, Jr., Kandies’s childhood
friend, who testified that Kandies was a "perfect" father and that he and
Kandies drank beer and smoked marijuana together, id. 1147-52; and (7)
John Gregory, Jr., Kandies’s childhood friend, who testified that Kandies
was a caring and concerned father. Id. at 1153-57.
   3
     In addition to meeting with Kandies on three occasions, Dr. Glover
conducted telephone interviews with three of Kandies’s acquaintances:
(1) Timothy Thompson, a childhood friend of Kandies, who indicated
                           KANDIES v. POLK                            7
from severe alcohol dependence. In doing so, Dr. Glover stated that
Kandies (1) began consuming alcohol and marijuana on a regular
basis by the age of fourteen and on a daily basis by the age of seven-
teen, (2) consumed approximately twelve to twenty-four beers on a
daily basis in the years immediately preceding Natalie’s murder, and
(3) was so intoxicated on the day of Natalie’s murder that his judg-
ment was impaired and he could not control his emotions. In addition,
Dr. Glover opined that on the day of Natalie’s murder Kandies was
suffering from a mental disorder and that his ability to appreciate the
criminality of his conduct was impaired. Dr. Glover’s investigation
into Kandies’s background, however, did not uncover any childhood
sexual abuse or indicia that Kandies may have been sexually abused
as a child.

   Dr. Coleman, who has considerable experience performing psycho-
logical evaluations on criminal defendants, testified that she met with
Kandies on two separate occasions for approximately three hours
each time. Dr. Coleman also testified that during these meetings she
conducted several psychological tests on Kandies, such as screening
for intelligence and neurological impairments. Dr. Coleman further
testified that she reviewed Kandies’s school records, work records,
military records, and police reports from the investigation of Natalie’s
death. Based on her review of these records and meetings with Kan-
dies, Dr. Coleman opined that Kandies suffered from a personality
disorder and alcohol dependence. Dr. Coleman also opined that Kan-
dies suffered from emotional and mental disturbances that impaired
his judgment on the date of Natalie’s death. Like Dr. Glover, how-
ever, Dr. Coleman’s investigation into Kandies’s background did not
uncover childhood sexual abuse or indications that he may have been
sexually abused.

   Peggy Kandies testified that her son became extremely angry for
a period of time when he learned at the age of fourteen that his step-

that he and Kandies consumed drugs and alcohol together until approxi-
mately 1980; (2) Samuel Hoover, who was employed at the convenience
store where Kandies customarily purchased his alcohol; and (3) Linda
Loflin, who was present at Ms. Craven’s home on the night that Natalie
disappeared and indicated that Kandies was intoxicated and angry at the
time.
8                            KANDIES v. POLK
father, Steve Kandies, was not his biological father and that his true
biological father was dead. She also testified that when Kandies was
a child, he saw his step-father verbally and physically abuse her. She
further testified that Kandies’s step-father was an alcoholic. Lastly,
Peggy Kandies testified that Kandies was a loving father, whose chil-
dren visited him in prison following his arrest for Natalie’s death, and
that he had served in the military. She did not, however, testify, or
indicate to Kandies’s trial counsel, that Kandies was sexually abused
as a child.

   After Kandies’s trial counsel presented its mitigating evidence, the
State called Ms. Craven as its sole witness during the penalty phase
of Kandies’s trial. Ms. Craven testified that she did not live with Kan-
dies and that she never gave Kandies blank permission to take Natalie
to his apartment.

   Based on the evidence presented during the penalty phase of Kan-
dies’s trial, the jury found two aggravating factors: (1) Kandies mur-
dered Natalie during the commission of first-degree rape and (2) the
murder of Natalie was especially heinous, atrocious or cruel. The jury
also found three of the five proposed statutory mitigating factors4 and
eighteen of the proposed twenty-eight nonstatutory mitigating factors.5
   4
     The three statutory mitigating factors found by the jury were: (1) Kan-
dies did not have a significant criminal history; (2) Kandies murdered
Natalie while suffering from a mental or emotional disturbance; and (3)
Kandies’s capacity to appreciate the criminality of his conduct or con-
form to the requirements of the law was impaired.
   5
     The eighteen nonstatutory mitigating factors found by the jury were:
(1) Kandies expressed remorse when describing the events of April 20th
to Ms. Craven on April 23rd; (2) Kandies expressed remorse when
speaking with police on April 23rd; (3) Prior to being placed under
arrest, Kandies contacted the Asheboro Police Department to inform it
of the location of Natalie’s body; (4) Prior to being placed under arrest,
Kandies contacted the Asheboro Police Department to accept responsi-
bility for Natalie’s death; (5) Kandies voluntarily waived his right to
have an attorney present when speaking with police on April 23rd; (6)
Kandies voluntarily accepted responsibility for Natalie’s death when
speaking with police on April 23rd; (7) Kandies was a chronic and long
term substance abuser; (8) Kandies suffered from acute substance abuse;
                            KANDIES v. POLK                             9
After balancing the aggravating and mitigating factors, the jury sen-
tenced Kandies to death for the first-degree murder of Natalie.

   On direct appeal, Kandies asserted, among other things, that the
Randolph County Superior Court erred by overruling his Batson chal-
lenges to the State’s use of peremptory challenges to strike nine pro-
spective African American jurors. In rejecting Kandies’s Batson
claim, the North Carolina Supreme Court concluded that Kandies
failed to satisfy his burden of establishing that the race neutral reasons
proffered by the State were pretextual. Kandies, 467 S.E.2d at 75-77.
Consequently, the North Carolina Supreme Court held that the Ran-
dolph County Superior Court "correctly ruled that the State did not
exclude any [of the nine prospective African American] jurors based
solely upon their race in violation of Batson." Id. at 76. Accordingly,
the North Carolina Supreme Court affirmed Kandies’s conviction and
death sentence. The United States Supreme Court thereafter denied
Kandies’s petition for a writ of certiorari. Kandies v. North Carolina,
519 U.S. 594 (1996).

   On September 26, 1997, Kandies filed a post-conviction motion for
appropriate relief ("MAR") in the Randolph County Superior Court
asserting, among other things, that his trial counsel rendered ineffec-
tive assistance during the penalty phase by failing to investigate
whether he was sexually abused as a child. In support of this claim,
Kandies submitted an affidavit alleging that he was sexually abused
by his uncle, Ronald Kandies, when he was six years old:6

(9) Kandies had a troubled childhood; (10) Natalie’s murder was out of
character for Kandies; (11) Kandies was led to believe that his step-
father was his biological father until the age of fourteen; (12) Kandies
never had a positive role model; (13) Kandies suffers from a personality
disorder; (14) Kandies comes from a dysfunctional family; (15) Kandies
witnessed as a child the verbal and physical abuse of his mother; (16)
Kandies’s step-father is an alcoholic; (17) Kandies suffered from a his-
tory of depression; and (18) Kandies was reared in an unstable environ-
ment.
   6
     In his briefs before this Court, Kandies has included affidavits from
his ex-wife, Lisa Frankes, and military friend, Stephen Sexton, in support
of his assertion that he was sexually abused as a child by his uncle. How-
10                          KANDIES v. POLK
     These incidents of sexual abuse took place when I was liv-
     ing in New York State. My uncle, who was an adult 15-20
     years older than me, would touch my private parts with his
     hand. He would also make me touch his private parts. He
     would also take showers with me and fondle me while in the
     shower. My uncle would buy me toys such as GI Joe’s [sic]
     in order to get me not to tell anybody about what he was
     doing to me. These traumatic experiences haunted me
     throughout my adult life.

J.A. 1371. In reviewing Kandies’s ineffective assistance of counsel
claim, the court noted that the affidavit submitted by his trial counsel
demonstrated that the subject of Kandies’s alleged childhood sexual
abuse did not come up during the "numerous interviews [he had] with
. . . Kandies, members of [Kandies’s] family, friends and mental
health professionals regarding items in . . . Kandies[’] background
that could be presented as mitigating factors." Id. at 1381. In addition,
the court noted that Kandies "never told [his] trial counsel about
alleged childhood sexual abuse." Id. at 1382. Moreover, the court
concluded that the failure on the part of Kandies’s trial counsel "to
question [Kandies] about . . . childhood sexual abuse was not per se
ineffective assistance." Id. at 1383. Consequently, the court held that
Kandies’s ineffective assistance of counsel claim was without merit.
Accordingly, the court, after rejecting the other ineffective assistance
of counsel claims raised by Kandies, denied Kandies’s MAR without
holding an evidentiary hearing. In doing so, however, the court did
not make an express finding that an evidentiary hearing was not
required to resolve any dispositive facts in dispute.

   On November 5, 1998, the North Carolina Supreme Court granted
Kandies’s petition for a writ of certiorari for the limited purpose of
remanding his MAR to the Randolph County Superior Court for
reconsideration in light of its holding in State v. McHone, 499 S.E.2d

ever, because these affidavits were not presented to the state court when
it adjudicated Kandies’s ineffective assistance of counsel claim, we, as
a federal habeas court, may not consider them in reviewing Kandies’s
habeas petition. Wilson v. Moore, 178 F.3d 266, 272-73 (4th Cir. 1999),
cert. denied, 528 U.S. 880 (1999).
                            KANDIES v. POLK                           11
761, 762-64 (1998), which held, among other things, that a post-
conviction court must make an express finding as to whether an evi-
dentiary hearing is required to resolve dispositive facts in dispute. On
November 30, 1998, Kandies filed an amended MAR seeking to raise
several additional ineffective assistance of counsel claims. On April
29, 1999, the Randolph County Superior Court affirmed its prior
denial of Kandies’s MAR, expressly finding that an evidentiary hear-
ing was not required because there were no disputes concerning any
dispositive facts. In addition, the court declined to consider the addi-
tional claims raised in Kandies’s amended MAR, finding that these
claims were not authorized by the North Carolina Supreme Court’s
remand order and were procedurally barred under N.C. Gen. Stat.
§ 15A-1419. Kandies thereafter petitioned the North Carolina
Supreme Court for a writ of certiorari, which was summarily denied
on August 19, 1999.

    On October 7, 1999, Kandies filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 in the United States District Court for
the Eastern District of North Carolina asserting fourteen grounds for
relief. On March 8, 2000, the district court referred Kandies’s habeas
petition to a magistrate judge. On December 14, 2000, the magistrate
judge issued a report recommending that Kandies’s habeas petition be
denied. On December 18, 2000, Kandies objected to the magistrate
judge’s recommendation. After granting Kandies’s motion to extend
time to file his objections to the magistrate judge’s recommendations,
the district court issued an order on March 4, 2003 accepting the mag-
istrate judge’s recommendation and declining to issue Kandies a cer-
tificate of appealability for any of the claims raised in his habeas
petition. On March 23, 2004, we issued Kandies a certificate of
appealability for his claims that (1) his trial counsel rendered ineffec-
tive assistance during the penalty phase by failing to investigate
whether he was sexually abused as a child and (2) the State’s use of
peremptory challenges to strike nine prospective African American
jurors violated Batson.

                                   II.

   "We review de novo a district court’s decision on a petition for writ
of habeas corpus based on a state court record." Spicer v. Roxbury
Corr. Inst., 194 F.3d 547, 555 (4th Cir. 1999). Because Kandies filed
12                         KANDIES v. POLK
his habeas petition after the effective date of the Anti-Terrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), our de novo review
is limited by the standards set forth by AEDPA. Under AEDPA, if a
state court has resolved the merits of a claim for post-conviction
relief, as is the case here, a federal court may not issue a writ of
habeas corpus unless the state court’s holding was "contrary to, or
involved an unreasonable application of, clearly established Federal
Law, as determined by the Supreme Court of the United States," 28
U.S.C. § 2254(d)(1), or "resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence pre-
sented in the State court proceeding." Id. § 2254(d)(2).

   In the present case, we must determine whether the state court’s
adjudication of Kandies’s claims was "contrary to, or involved an
unreasonable application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States." Id. § 2254(d)(1).
To issue Kandies a writ of habeas corpus, however, we need not find
that the state court’s adjudication of his claims was both "contrary to"
and an "unreasonable application" of clearly established federal law.
In Williams v. Taylor, the Supreme Court expressly held that
AEDPA’s "contrary to" and "unreasonable application" clauses have
independent meanings. 529 U.S. 362, 404-05 (2000). Thus, we may
issue Kandies a writ of habeas corpus if we determine that the state
court adjudicated his claims in a manner that was either contrary to
or an unreasonable application of federal law.

   A state court’s adjudication of a claim is contrary to clearly estab-
lished federal law "if the state court applies a rule different from the
governing law set forth in [the Supreme Court’s] cases, or if it decides
a case differently than [the Supreme Court has] on a set of materially
indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002). A
state court’s adjudication of a claim constitutes an unreasonable appli-
cation of clearly established federal law "if the state court correctly
identifies the governing legal principle from [the Supreme Court’s]
decisions, but unreasonably applies it to the facts of the particular
case." Id. Because the Supreme Court has stated that an "unreason-
able application of federal law is different from an incorrect applica-
tion of federal law," Williams v. Taylor, 529 U.S. at 410, we may not
issue Kandies a writ of habeas corpus solely because we determine in
our "independent judgment that the state-court decision applied [a
                            KANDIES v. POLK                             13
Supreme Court] case incorrectly." Prince v. Vincent, 538 U.S. 634,
641 (2003)(quoting Woodford v. Visciotti, 537 U.S. 19, 24-25
(2002)(per curiam)). Thus, in order to grant Kandies’s habeas petition
we must conclude that the state court’s adjudication of his claims was
not only incorrect, but that, it was objectively unreasonable.

                                   III.

   I begin with Kandies’s argument that his trial counsel rendered
ineffective assistance during the penalty phase by breaching the duty
to reasonably investigate mitigating evidence. Specifically, Kandies
argues that his trial counsel breached the duty to reasonably investi-
gate mitigating evidence, and thus rendered ineffective assistance, by
failing to retain a mitigation expert and directly inquire about child-
hood sexual abuse.

                                    A.

    In Strickland v. Washington, the Supreme Court set forth a two-part
test that defendants must satisfy before succeeding on an ineffective
assistance of counsel claim. 466 U.S. 668 (1984). First, a defendant
must show that defense counsel’s performance fell below an objective
standard of reasonableness, the proper measure of which is prevailing
professional norms. Id. at 687-88. Second, a defendant must show that
he or she was prejudiced by defense counsel’s objectively unreason-
able performance. Id. at 687. In the context of a capital sentencing
proceeding, such as the one before us, a defendant establishes preju-
dice by showing "there is a reasonable probability that, absent [his
trial counsel’s objectively unreasonable performance], the sentencer
. . . would have concluded that the balance of aggravating and miti-
gating circumstances did not warrant death." Id. at 695. To make such
a showing, a defendant need not establish a reasonable probability
that the entire jury would have voted against the imposition of a death
sentence, but rather, that "there is a reasonable probability that at least
one juror would have struck a different balance." Wiggins v. Smith,
539 U.S. 510, 537 (2003)(emphasis added). "‘A reasonable probabil-
ity is a probability sufficient to undermine confidence in the out-
come.’" Glover v. Miro, 262 F.3d 268, 275 (4th Cir. 2001)(quoting
Strickland, 466 U.S. at 694). In determining whether a defendant has
carried his burden of showing there is a reasonable probability that at
14                         KANDIES v. POLK
least one juror would have declined to impose a death sentence if pre-
sented with certain mitigating evidence, "we reweigh the evidence in
aggravation against the totality of available mitigating evidence."
Wiggins, 539 U.S. at 534.

    Before turning to the merits of Kandies’s claim, it is important to
note that Strickland’s two-part test is an onerous one to satisfy
because "counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reason-
able professional judgment." 466 U.S. at 690. This strong presump-
tion is justified by the fact that counsel is often forced to make
instantaneous decisions without the hindsight that appellate courts,
especially habeas courts, enjoy. Id. at 689-90. As the Supreme Court
noted in Strickland: "It is all too tempting for a defendant to second-
guess counsel’s assistance after conviction or adverse sentence, and
it is all too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable." Id. at 689.

                                  B.

   The Supreme Court has expressly held that defense counsel has a
professional "obligation to conduct a thorough investigation of the
defendant’s background." Williams v. Taylor, 529 U.S. at 396; see
also Wiggins, 539 U.S. at 523-34 (holding that defense counsel
breached duty to conduct complete investigation of defendant’s back-
ground); Strickland, 466 U.S. at 691 (stating that defense counsel "has
a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary"). In deter-
mining whether defense counsel breached this duty, "we must con-
duct an objective review of [counsel’s] performance, measured for
reasonableness under prevailing professional norms, which includes
a context-dependent consideration of the challenged conduct as seen
from counsel’s perspective at the time." Wiggins, 533 U.S. at 523
(internal citation and quotation marks omitted). It is also necessary to
keep in mind that defense counsel is not required to "investigate every
conceivable line of mitigating evidence no matter how unlikely the
effort would be to assist the defendant at sentencing" or "to present
mitigating evidence at sentencing in every case." Id. at 533.
                             KANDIES v. POLK                             15
   In the present case, Kandies asserts that his trial counsel breached
the duty to thoroughly investigate his background by failing to retain
the services of a mitigation expert.7 This argument fails for several
reasons. First, Kandies’s argument, if accepted, would create a per se
rule requiring defense counsel to retain a mitigation expert in every
capital case. The Supreme Court, while using standards such as those
set forth by the American Bar Association as guides for what is rea-
sonable, has repeatedly declined to adopt a rigid checklist of things
that defense counsel must do in all cases because "[n]o particular set
of detailed rules for counsel’s conduct can satisfactorily take account
of the variety of circumstances faced by defense counsel or the range
of legitimate decisions regarding how best to represent a criminal
defendant." Strickland, 466 U.S. at 688-89. Moreover, the Court has
expressly stated that the adoption of a rigid checklist for counsel’s
conduct "would interfere with the ‘constitutionally protected indepen-
dence of counsel’ at the heart of Strickland." Wiggins, 539 U.S. at 533
(quoting Strickland, 466 U.S. at 689). Consequently, the Supreme
Court has made it clear that defense counsel must be afforded the dis-
cretion to determine whether the retention of an expert will serve the
interests of his or her client and, if so, what type of expert would best
do so.

   Second, Kandies’s argument incorrectly assumes that the services
of a mitigation expert are the exclusive means through which defense
counsel can thoroughly investigate a defendant’s background. While
the services of a mitigation expert will undoubtedly prove useful in
  7
    Kandies also contends that he received ineffective assistance because
his court-appointed attorney that was primarily responsible for discover-
ing and developing mitigation evidence, Scott N. Dunn, had never tried
a criminal jury trial prior to Kandies’s capital case. While I believe the
Randolph County Superior Court should have appointed an attorney
experienced in capital cases, Mr. Dunn’s lack of experience does not
establish ipso facto that he was ineffective. When considering an ineffec-
tive assistance of counsel claim, the attorney’s actual performance is
examined, rather than his or her experience, which is an indicator of the
attorney’s likely performance.
   In addition, I note that Mr. Dunn was not the lead counsel in Kandies’s
trial and thus I presume, given that it has not been alleged otherwise, that
he was supervised by a more experienced attorney.
16                         KANDIES v. POLK
many instances, they are by no means the only manner through which
defense counsel can thoroughly investigate a defendant’s background.
For instance, there will be some circumstances where the assistance
of lay persons, such as family, friends and colleagues, is more useful
in discovering and presenting mitigating evidence than that of a miti-
gation expert. There will also be some instances where defense coun-
sel’s experience in trying capital cases and presenting mitigating
evidence will render the services of a mitigation expert unnecessary.
While the retention of a mitigation expert in these instances may
nonetheless be advisable, I do not believe defense counsel should be
required, or feel compelled, to do so.

   Kandies also argues that his trial counsel failed to thoroughly
investigate his background by not specifically inquiring into whether
he was sexually abused as a child. In so arguing, Kandies asserts that
his trial counsel had a duty to specifically inquire about childhood
sexual abuse because numerous studies have found that men who
commit acts of child abuse are far more likely than the general popu-
lation to have been sexually abused as children. To the contrary, I
believe the interests of criminal defendants are better served when
defense counsel has the discretion to consider the circumstances of a
particular case and determine whether a specific inquiry regarding
childhood sexual abuse should be undertaken. As the Supreme Court
has repeatedly stated, "[n]o particular set of detailed rules for coun-
sel’s conduct can satisfactorily take account of the variety of circum-
stances faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant." Strickland, 466
U.S. at 688-89.

   In reviewing counsel’s conduct, I limit my inquiry to a determina-
tion of whether the state court was "unreasonable" in concluding that
counsel’s performance was objectively reasonable under prevailing
professional norms. In this case, Kandies’s trial counsel conducted
"numerous interviews with . . . Kandies, members of [Kandies’s] fam-
ily, friends and mental health professionals regarding possible items
in . . . Kandies’s background that could be presented as mitigating
factors." J.A. 1374. Despite these open-ended interviews, "the subject
of child sexual abuse . . . was never raised."8 Id. In addition, Kan-
  8
   While I recognize that the trauma of childhood sexual abuse can cause
victims to repress their memory of such abuse, the fact that Kandies
                            KANDIES v. POLK                             17
dies’s trial counsel had two clinically trained psychologists, Drs. Gro-
ver and Coleman, investigate Kandies’s background in hopes of
discovering mitigating evidence. Dr. Grover, who focused primarily
on the history of Kandies’s substance abuse, interviewed Kandies on
three separate occasions for approximately two hours each time and
conducted telephone interviews with three of Kandies’s acquaint-
ances. However, Dr. Grover did not find any indicia of Kandies’s
alleged childhood sexual abuse. Dr. Coleman, a neuro and forensic
psychologist, met with Kandies on two separate occasions for approx-
imately three hours each time. During these meetings, Dr. Coleman
screened Kandies for neurological and intelligence impairments.
Moreover, Dr. Coleman reviewed Kandies’s school records, work
records, military records and police records related to the investiga-
tion of Natalie’s death. Despite this comprehensive investigation of
Kandies’s background, Dr. Coleman did not find any indications that
Kandies may have been sexually abused as a child.

   As demonstrated above, Kandies’s trial counsel thoroughly investi-
gated Kandies’s background for any mitigating evidence. Indeed,
these efforts resulted in the jury finding twenty-one of the thirty-three
mitigating factors presented by Kandies’s trial counsel. Thus, I cannot
conclude that the failure on the part of Kandies’s trial counsel to
inquire about Kandies’s alleged childhood sexual abuse was due to a
half-hearted investigation into Kandies’s background. Accordingly, I
conclude based on all of the circumstances of this case and the inves-
tigation conducted by Kandies’s trial counsel, that the state court was
not unreasonable in finding that his counsel’s performance, despite
not having retained a mitigation expert or asking a specific question
about childhood sexual abuse, did not fall below an objective standard

never informed his trial counsel that he was, or believed he was, sexually
abused is important because the Supreme Court has unequivocally stated
that "what investigation decisions are reasonable depends critically" on
"information supplied by the defendant." Strickland, 466 U.S. at 691; cf.
Barnes v. Thompson, 58 F.3d 971, 979-80 (4th Cir. 1995)(stating that
counsel "may rely on the truthfulness of his client and those whom he
interviews in deciding how to pursue his investigation"). This is espe-
cially true in the present case because nothing in Kandies’s background
could have alerted his trial counsel to his alleged childhood sexual abuse.
18                          KANDIES v. POLK
of reasonableness as measured by prevailing professional norms.
Strickland, 466 U.S. at 688.

                                   C.

   Even assuming arguendo that Kandies can show that his trial coun-
sel’s performance was objectively unreasonable, I, as well as my col-
leagues, find that Kandies is unable to establish that there is a
reasonable probability that at least one juror would have weighed the
aggravating and mitigating evidence differently had the jury been
informed that Kandies was fondled by his uncle and forced to fondle
his uncle in return while living for a period in New York. In imposing
a death sentence, the jury found several mitigating factors related to
Kandies’s difficult childhood, e.g., Kandies did not have a positive
role model, came from a dysfunctional family, and was reared in an
unstable environment. Nonetheless, the jury concluded that these and
the other mitigating factors were outweighed by the two aggravating
factors that it found, namely that Kandies murdered Natalie while rap-
ing her and that Natalie’s murder was especially heinous, atrocious or
cruel. I am not convinced, at least not to the point where I lack confi-
dence in the outcome of Kandies’s sentencing proceeding, Strickland,
466 U.S. at 694, that the jury, had it been informed that Kandies was
fondled by his uncle and forced to fondle his uncle in return during
the period that he lived in New York, would have balanced the aggra-
vating and mitigating factors differently. While I in no way minimize
Kandies’s childhood sexual abuse, if it occurred, I am not convinced
that the jury, once informed of Kandies’s alleged childhood sexual
abuse, would not have sentenced Kandies to death after having found
him guilty of the rape and murder of his fiancee’s four-year-old
daughter and the half-sister of his one-year-old son, dumping her
body in a plastic bag and then lying about the incident for a couple
of days.9 Clearly, the state court was not unreasonable in concluding
likewise.

  9
   I also note that the jury knew, through Kandies’s statements to police,
that he never admitted to having raped Natalie. Thus, he never accepted
responsibility or demonstrated remorse for the rape of Natalie.
                            KANDIES v. POLK                             19
                                   IV.

   I now turn to Kandies’s argument that the North Carolina Supreme
Court’s conclusion that the trial court properly overruled his objec-
tions to the State’s use of peremptory challenges to remove nine pro-
spective African American jurors is contrary to or an unreasonable
application of the Supreme Court’s holding in Batson v. Kentucky,
476 U.S. 79 (1986).

                                    A.

   In Batson v. Kentucky, the Supreme Court held that a defendant
may raise an equal protection challenge to the State’s use of peremp-
tory challenges at his or her own trial by showing that the State used
such challenges for the purpose of excluding members of the defen-
dant’s race.10 476 U.S. at 96. In so holding, the Supreme Court set
forth a three-part test that trial courts are to employ in evaluating a
defendant’s allegation that the State has peremptorily challenged a
prospective juror solely on the basis of race. First, a trial court must
decide whether the defendant has made a prima facie showing that the
circumstances surrounding the State’s peremptory challenge of a pro-
spective juror give rise to an inference that the juror was struck
because of his or her race.11 Id. at 96. Such an inference may be estab-
lished by, inter alia, showing a pattern of peremptory challenges
  10
      Similarly, the Supreme Court held in Georgia v. McCollum that the
State may challenge a defendant’s racially based use of peremptory chal-
lenges because "[j]ust as public confidence in criminal justice is under-
mined by a conviction in a trial where racial discrimination has occurred
in jury selection, so is public confidence undermined where a defendant,
assisted by racially discriminatory peremptory strikes, obtains an acquit-
tal." 505 U.S. 42, 50 (1992). Moreover, the Court noted that "[r]egardless
of who invokes the discriminatory challenge . . . the juror is subjected
to [the harms caused by] open and public racial discrimination." Id. at 49.
   11
      Originally, Batson’s requirement that a defendant establish a prima
facie case of discrimination also mandated that the defendant show that
he or she was a member of a "cognizable racial group" and that the State
exercised peremptory challenges against members of the defendant’s
racial group. 476 U.S. at 96. This requirement, however, was eliminated
in Powers v. Ohio, 499 U.S. 400, 415-16 (1991).
20                           KANDIES v. POLK
against non-Caucasian prospective jurors.12 Id. at 97. Second, once the
defendant has established a prima facie case of discrimination, the
trial court must require the State to proffer a race neutral reason for
striking the prospective juror. Id. The State’s proffered reason need
not be persuasive or even plausible because "‘[u]nless a discrimina-
tory intent is inherent in the [State’s] explanation[ ] the reason offered
will be deemed race neutral.’"13 Purkett v. Elem, 514 U.S. 765, 768
(1995)(per curiam)(quoting Hernandez v. New York, 500 U.S. 352,
358-59 (1991)(O’Connor, J., concurring in judgment)). Thus, the
State need only put forth a race neutral reason that is clear, suffi-
ciently specific and related to the particular case to be tried. Batson,
476 U.S. at 97-98. Finally, after the State has proffered a race neutral
reason, the trial court must determine whether the defendant has car-
ried his or her burden of proving that the State’s peremptory chal-
lenge was motivated by purposeful discrimination, i.e., that the
State’s proffered race neutral reason for striking a juror was pretextual.14
Id. at 98.

   In Powers v. Ohio, the Supreme Court extended the equal protec-
tion principle established in Batson by holding that an individual
juror, while not having "a right to sit on any particular petit jury, . . .
does possess the right not to be excluded from one on account of
race." 499 U.S. at 409. This holding was primarily based on the
Court’s belief that "with the exception of voting, for most citizens the
honor and privilege of jury duty is their most significant opportunity
to participate in the democratic process." Id. at 407. To ensure that a
  12
      An inference that a prospective juror has been peremptorily chal-
lenged because of his or her race can also be established through the
State’s questions and statements during voir dire. Batson, 476 U.S. at 97.
   13
      While the State’s proffered reason need not be persuasive or even
plausible, the State cannot rebut a defendant’s prima facie case "merely
by denying [it] had a discriminatory motive or ‘affirm[ing] [its] good
faith in making individual selections.’" Batson, 476 at 98 (quoting Alex-
ander v. Louisiana, 405 U.S. 625, 632 (1972)).
   14
      Because a trial court’s finding regarding purposeful discrimination
will turn in large part on credibility determinations, it should be accorded
great deference on review. Batson, 476 U.S. at 98 n.21. Thus, a trial
court’s finding regarding purposeful discrimination may not be over-
turned unless clearly erroneous. Hernandez, 500 U.S. at 365.
                            KANDIES v. POLK                            21
prospective juror’s right to not be excluded from jury duty on the
basis of race is vindicated, the Court further held that criminal defen-
dants have standing to bring an equal protection claim asserting that
a prospective juror’s right not to be excluded from jury duty on the
basis of race has been violated. Id. at 415. Moreover, the Court held
that criminal defendants have standing to bring such challenges even
when their race differs from that of the excluded juror because the
failure to allow defendants of a different race to bring these claims
"would be to condone the arbitrary exclusion of citizens from the
duty, honor, and privilege of jury service." Id. Accordingly, Kandies,
who is a Caucasian American, has standing to bring his Batson claim
asserting that the State improperly excluded nine prospective African
American jurors because of their race.

                                   B.

   Because the State voluntarily responded to each of Kandies’s Bat-
son challenges, I presume that Kandies established a prima facie case
of racial discrimination on each instance and thus turn directly to the
State’s proffered reasons for striking each of the nine prospective
African American jurors. Matthews v. Evatt, 105 F.3d 907, 918 (4th
Cir. 1997). In doing so, I consider each of the State’s peremptory
challenges in turn.

  1. Ms. Randleman

   In response to Kandies’s Batson challenge, the State asserted that
it peremptorily struck Ms. Randleman because although her juror
questionnaire "form indicate[d] that she had not been convicted of
any criminal offense," a check of her criminal record revealed that she
had "been convicted of worthless checks and two speeding viola-
tions." J.A. 131. In addition, the State asserted that Ms. Randleman
"was hesitant on death penalty questions." Id. Such reasons undoubt-
edly constitute race neutral reasons that are clear, sufficiently specific
and related to the case. Batson, 476 U.S. at 97-98. Consequently, once
the State put forth these race neutral reasons, Kandies had the burden
of establishing that they were pretextual. Kandies, however, failed to
argue that the State’s proffered reasons were pretextual. In fact, Kan-
dies did not even rebut the State’s proffered reasons when given the
opportunity. Having failed to argue that the State’s proffered reasons
22                          KANDIES v. POLK
were pretextual, Kandies waived his Batson challenge and thus I
review it for plain error. Davis v. Baltimore Gas & Elec. Co., 160
F.3d 1023, 1027 (4th Cir. 1998)("[W]e now follow the lead of other
circuits that have held that the movant’s failure to argue pretext con-
stitutes a waiver of his initial objection."); see also United States v.
Jackson, 347 F.3d 598, 605 (6th Cir. 2003)("If a defendant fails to
rebut a race-neutral explanation at the time it was made, the district
court’s ruling on the objection is reviewed for plain error.").

   For the district court’s ruling to constitute plain error, Kandies
must show that (1) an error occurred, (2) the error was plain, i.e.,
obvious or clear, (3) the error affected substantial rights, and (4) the
error seriously affected the fairness, integrity or public reputation of
the judicial proceedings. United States v. Olano, 507 U.S. 725, 731-
34, 736 (1993). Here, I find that the trial court did not err by overrul-
ing Kandies’s Batson challenge to the peremptory removal of Ms.
Randleman because the State proffered race neutral reasons that were
clear, sufficiently specific and related to the case. Batson, 476 U.S.
at 97-98. Because I find that the trial court did not commit an error
in overruling Kandies’s Batson challenge, I need not proceed with
plain error review.

  2. Ms. Jinwright

   In response to Kandies’s Batson challenge, the State asserted that
it peremptorily struck Ms. Jinwright because "she has worked with
three- or four-year-old children and was hesitant on the death pen-
alty." J.A. 131. As previously noted, once the State put forth these
race neutral reasons, Kandies had the burden of establishing that they
were pretextual. Kandies, however, failed to argue that the State’s
proffered reasons were pretextual. Indeed, he did not even respond to
the State’s proffered reasons when afforded the opportunity. Conse-
quently, I review this Batson challenge for plain error, which I do not
find. Davis, 160 F.3d at 1027. The race neutral reasons proffered by
the State were clear, sufficiently specific and related to the case,
which is all that Batson requires in the second part of its three-part
test. 476 U.S. at 97-98.

  3. Ms. Massey

   In response to Kandies’s Batson challenge, the prosecutor stated
that Ms. Massey was peremptorily challenged because she:
                            KANDIES v. POLK                             23
     had trouble understanding me, and I think she has a hearing
     problem because she continuously answered with difficulty,
     and I had difficulty getting her to understand my questions,
     and so I excused Ms. Massey because of her hearing prob-
     lems, and I had some difficulty understanding her answer to
     the questions I asked her.

J.A. 131. After the State set forth these race neutral reasons, Kandies
had the burden of establishing that they were pretextual. However, as
with Ms. Randleman and Ms. Jinwright, Kandies failed to even
respond to the State’s proffered reasons when given the opportunity.
Consequently, I review this Batson challenge for plain error. Davis,
160 F.3d at 1027. In doing so, I find that the trial court did not err
by overruling Kandies’s Batson challenge because the State’s prof-
fered race neutral reasons were clear, sufficiently specific and related
to the case. 476 U.S. at 97-98. Accordingly, I need not proceed with
plain error review.

  4 & 5. Ms. Rawlinson and Mr. McClure

   In response to Kandies’s Batson challenge, the prosecutor stated
that Ms. Rawlinson and Mr. McClure were peremptorily struck
because:

     Ms. Rawlinson had not even thought about the death pen-
     alty, certainly was not [sic] a strong opinion for or against
     the death penalty. And Mr. McClure was in a similar situa-
     tion except that he also — my officer noticed that he nodded
     off at least twice. Not that I’m saying this was the most
     interesting part of the trial, but I certainly do not believe he
     was paying sufficient attention in this case, though. Also, I
     discussed the jury panel with the High Point Police Depart-
     ment, and they indicated Mr. McClure and Ms. Rawlinson
     would not be good jurors for this type of case.

J.A. 167. When asked by the court to elaborate on his proffered rea-
sons for striking Ms. Rawlinson and Mr. McClure, the prosecutor
asserted: "I asked most everybody and basically indicated [sic] any-
one that they had any contact with prior to the trial. Primarily, the rea-
son was they were weak on the death penalty." Id. at 168.
24                           KANDIES v. POLK
   In assessing the State’s proffered reasons, I begin by noting that it
is completely proper for prosecutors to contact police to determine
whether a prospective juror has a criminal record or has had any prior
contact with police. I also note that prosecutors are free to solicit from
police advice on a prospective jurors stance on the death penalty, as
apparently was done here. In doing so, however, I observe that in
most instances police will not have a basis upon which to render such
advice. Of course, there may be some rare instances where police can
advise prosecutors about a prospective jurors stance on the death pen-
alty due to some prior contact where the prospective juror and police
discussed at-length the death penalty or an officer heard the prospec-
tive juror discussing his or her views on the death penalty. Here, when
given the opportunity, the State failed to set forth the basis upon
which the High Point Police Department concluded that Ms. Rawlin-
son and Mr. McClure "would not be good jurors for this type of case"
because "they were weak on the death penalty question." Id. at 167-
68. Moreover, the State’s assertion that the High Point Police Depart-
ment indicated that Ms. Rawlinson and Mr. McClure were weak on
the death penalty contradicts its observation, after questioning and
observing Ms. Rawlinson and Mr. McClure, that they "were not a
[sic] strong opinion for or against the death penalty." Id. at 167.

   Accordingly, the State’s assertion that it struck Ms. Rawlinson and
Mr. McClure because the High Point Police Department "indicated
[they] would not be good jurors for this type of case," id. at 167,
raises suspicion.15 Nonetheless, I conclude that this proffered reason
was race neutral because a discriminatory intent is not inherent in this
explanation. Purkett, 514 U.S. at 768. Because the State proffered this
race neutral reason that was clear, sufficiently specific and at least
arguably related to the case, Batson, 476 U.S. at 97-98, Kandies had
the burden of establishing that it was pretextual, which Kandies failed
to do. Kandies could have met his burden, for example, by establish-
ing that the prosecution only discussed prospective African American
jurors with the High Point Police Department or that the High Point
Police Department’s assertions were solely based on race.
  15
    Unlike with four of the other seven prospective African American
jurors that it struck, the State did not cite criminal history or possibility
of criminal history when explaining its reasons for striking Ms. Rawlin-
son and Mr. McClure.
                            KANDIES v. POLK                            25
   I am equally suspicious of the State’s assertion that it removed Ms.
Rawlinson and Mr. McClure because they did not hold a strong posi-
tion on the death penalty. Such prospective jurors are exactly the ones
that should be empaneled for a capital trial. Morgan v. Illinois, 504
U.S. 719, 735-36 (1992)(holding that defendant has right to remove
for cause prospective jurors who would always impose a death sen-
tence after finding a defendant guilty of a capital crime); Wainwright
v. Witt, 469 U.S. 412, 424 n.5 (1985)(holding that "the State may
exclude from capital sentencing juries that ‘class’ of veniremen
whose views would prevent or substantially impair the performance
of their duties in accordance with their instructions or their oaths").
Nonetheless, because a discriminatory intent is not inherent in this
proffered reason, I must deem it race neutral. Purkett, 514 U.S. at
768. Accordingly, Kandies had the burden of showing that this race
neutral reason, which was clear, sufficiently specific and related to the
case, Batson, 476 U.S. 97-98, was pretextual. This, however, Kandies
failed to do.

   The State’s last reason for striking Mr. McClure—his lack of
attentiveness—clearly satisfies Batson. It is a race neutral reason that
is clear, sufficiently specific and related to the case. A juror’s atten-
tiveness is clearly pertinent and vitally important to a capital case
because jurors are being asked to make a decision between life and
death.

  6. Mr. Campbell

   In response to Kandies’s Batson challenge, the prosecutor stated
that he used a peremptory challenge to strike Mr. Campbell because:

    [Mr. Campbell] did not believe in the death penalty, and
    considering that [it] is a possible punishment in this case I
    just didn’t feel that he would be a qualified juror in the case.
    It would not matter what his answer would be to the ques-
    tion about following the law. Furthermore, a record check
    indicates that a person named Fred Campbell has a prior
    common law robbery conviction, but without a file here I
    didn’t feel I [had] . . . enough evidence to challenge him
    [on] this point.
26                          KANDIES v. POLK
J.A. 583. Given that, as discussed above, the Supreme Court has held
that "the State may exclude from capital sentencing juries that ‘class’
of veniremen whose views would prevent or substantially impair the
performance of their duties in accordance with their instructions or
their oaths," Wainwright, 469 U.S. at 424 n.5, I find that the State’s
proffered race neutral reason satisfied Batson because it was clear,
sufficiently specific and related to the case. 496 U.S. at 97-98. Thus,
Kandies had the burden of establishing that this reason was pretex-
tual, which he attempted to do by noting that Mr. Campbell stated that
he would be able to follow the law despite his opposition to the death
penalty. This argument, however, fails to establish that the State’s
proffered reason for peremptorily striking Mr. Campbell was pretex-
tual because "a juror could, in good conscience, swear to uphold the
law and yet be unaware that maintaining . . . dogmatic beliefs about
the death penalty would prevent him or her from doing so." Morgan,
504 U.S. at 735.

  7. Mr. Hines

   In response to Kandies’s Batson challenge, the State asserted that
it exercised a peremptory strike to remove Mr. Hines because Mr.
Hines was "worried about his employment and his loss of income. . . .
[H]e ha[d] never thought about the death penalty. . . . [and] records
indicate that he had prior convictions for driving while impaired and
driving while [sic] license revoked under his birth date." J.A. 605. In
response to the State’s proffered reason, Kandies’s trial counsel
renewed a motion requesting access to the records relied upon by the
State or, in the alternative, that the records pertaining to Mr. Hines be
made part of the proceeding’s record. The trial court denied this
request and overruled Kandies’s Batson challenge, noting that at the
time that it peremptorily struck Mr. Hines, the State had (1) accepted
another African American juror, who was then struck peremptorily by
Kandies; (2) accepted a second African American juror, who was not
peremptorily challenged by Kandies; and (3) accepted a third African
American juror during the same proceeding that Mr. Hines was
struck. Accordingly, the trial court found that Kandies failed to show
that the State’s proffered reason was pretextual.

   Because I accord great deference to the trial court’s determinations
regarding purposeful discrimination, Hernandez, 500 U.S. at 365, I
                            KANDIES v. POLK                            27
cannot, on the record before me, conclude that Kandies’s Batson chal-
lenge was improperly overruled by the trial court.

  8. Mr. Wilson

   In response to Kandies’s Batson challenge, the State asserted that
it struck Mr. Wilson because he "has a record of reckless driving,
driving while impaired, four worthless checks, two [sic] injury to per-
sonal property, a simple assault, and assault by pointing a gun." J.A.
751. In response to the State’s proffered race neutral reasons, Kan-
dies’s trial counsel renewed the motion made in response to the
State’s peremptory challenge to Mr. Hines, i.e., requested access to
the records relied upon by the State or that the records pertaining to
Mr. Wilson be made part of the proceeding’s record. The trial court
denied this request on the same bases that it had previously done so
and concluded, on the same grounds that it overruled Kandies’s Bat-
son challenge to the removal of Mr. Hines, that the State’s proffered
reasons were not pretextual. Accordingly, because the trial court’s
determination regarding purposeful discrimination is given great def-
erence, Hernandez, 500 U.S. at 365, I conclude that the trial court did
not err by overruling Kandies’s Batson challenge to the peremptory
removal of Mr. Wilson.

  9. Ms. Oliver

   During the selection of alternate jurors, the State exercised a
peremptory challenge to remove Ms. Oliver. In response, Kandies’s
trial counsel raised a Batson challenge. After the court found that
Kandies had made a showing of a prima facie discrimination case, the
State asserted that it struck Ms. Oliver because she was "having trou-
ble hearing . . . and because she certainly didn’t listen to [the court’s]
instructions about watching t.v. or listening to any radio broadcasts
about [the] case." J.A. 969. To rebut the State’s assertion, Kandies’s
trial counsel noted that the State had accepted Caucasian American
jurors who had also contravened the court’s instructions about watch-
ing television or listening to radio broadcasts about the case.

   While the disparate treatment of similarly situated prospective
jurors of different races can be used to establish pretext, Miller-El v.
Cockrell, 537 U.S. 322, 343-44 (2003), Kandies’s trial counsel, in
28                          KANDIES v. POLK
challenging the removal of Ms. Oliver, did not point to jurors simi-
larly situated to Ms. Oliver that the State accepted. Kandies’s trial
counsel only pointed to jurors accepted by the State that had contra-
vened the court’s instructions about watching television and listening
to radio reports about the case whereas the State struck Ms. Oliver
because she was (1) having trouble hearing and (2) failed to adhere
to the court’s instructions. Accordingly, I find that Kandies’s dispa-
rate treatment argument fails and thus conclude that the trial court,
whose determinations regarding purposeful discrimination merit great
deference, Hernandez, 500 U.S. at 365, did not err by overruling Kan-
dies’s Batson challenge to the peremptory removal of Ms. Oliver.

                                   C.

   In sum, while I have serious doubts regarding some of the "race
neutral" reasons proffered by the State, I find that the state court did
not unreasonably conclude that Kandies failed to make the requisite
showing that the State’s proffered reasons for peremptorily striking
nine prospective African American jurors were pretextual.

                                   V.

   We hold that the state court was not unreasonable in concluding
that Kandies’s trial counsel, despite not retaining a mitigation expert
or specifically inquiring about childhood sexual abuse, thoroughly
investigated Kandies’s background for mitigating evidence and thus
did not render ineffective assistance during the penalty phase. We
also hold that the North Carolina Supreme Court’s conclusion that the
trial court properly overruled Kandies’s Batson challenges to the
State’s peremptory removal of nine prospective African American
jurors was neither contrary to nor an unreasonable application of
clearly established federal law. Accordingly, the district court’s denial
of Kandies’s habeas petition is

                                                           AFFIRMED.
                            KANDIES v. POLK                           29
                                                        Volume 2 of 2



MICHAEL, Circuit Judge, concurring in the judgment:

   I concur in the judgment to affirm the district court’s denial of Jef-
frey C. Kandies’s petition for a writ of habeas corpus. I write further
30                          KANDIES v. POLK
to explain why I vote to deny relief on Kandies’s ineffective assis-
tance of counsel claim. I agree with my two colleagues that it was not
an unreasonable application of federal law for the state court to con-
clude that Kandies was not prejudiced by his counsel’s failure to
inquire into his history of childhood sexual abuse. This failure to
inquire, however, compels the conclusion that counsel’s performance
was constitutionally deficient; I therefore disagree that the state court
reasonably applied federal law in concluding otherwise.

   I would hold that the state court unreasonably applied Sixth
Amendment law because no member of Kandies’s defense team both-
ered to ask him whether he had suffered sexual abuse as a child.
Defense lawyers in a capital case have an "obligation to conduct a
thorough investigation of the defendant’s background." Williams v.
Taylor, 529 U.S. 362, 396 (2000) (citing 1 ABA Standards for Crimi-
nal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1980)) (emphasis
added). A background investigation can be limited "only to the extent
that ‘reasonable professional judgments support the limitation[ ].’"
Wiggins v. Smith, 539 U.S. 510, 533 (2003) (quoting Strickland v.
Washington, 466 U.S. 668, 691 (1984)) (emphasis added). "In other
words, counsel has a duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all the cir-
cumstances." Strickland, 466 U.S. at 691. Courts must measure "rea-
sonableness under prevailing professional norms." Id. at 688. The
American Bar Association’s standards describing the duties of coun-
sel are "guides to determining what is reasonable." Id. Here, the
ABA’s Guidelines for the Appointment and Performance of Counsel
in Death Penalty Cases offer specific guidance for client interviews
in death penalty cases. "As soon as is appropriate, counsel should,"
among other things, "[c]ollect information relevant to the sentencing
phase of trial including, but not limited to: . . . family and social his-
tory (including physical, sexual or emotional abuse)." ABA Guide-
lines for the Appointment and Performance of Counsel in Death
Penalty Cases 11.4.1(D)(2) (1989) (emphasis added). The state court
and my colleagues overlook this crucial standard.

   It was an unreasonable application of Strickland for the state court
to conclude that the performance of Kandies’s counsel was not consti-
                            KANDIES v. POLK                            31
tutionally deficient. Counsel in charge of the background investiga-
tion admitted that he "never investigated [childhood sexual abuse] as
a possible mitigating factor." J.A. 1374. Counsel’s utter failure to
inquire into an area specifically mentioned in the ABA guidelines is
a good indicator that his performance was constitutionally deficient.
See Strickland, 466 U.S. at 688. Additionally, the nature of the
charges against Kandies should have prompted counsel to inquire
whether he had been sexually abused as a child. See Wiggins, 539
U.S. at 525 (holding the scope of investigation unreasonable in light
of what available records revealed about the defendant’s childhood).
Kandies was accused of raping and murdering Natalie Osborne, his
son’s four-year-old half-sister, circumstances that the prosecution
obviously would (and did) use to press for the death penalty at sen-
tencing. Because statistical evidence shows that men who sexually
abuse children were often victims of sexual abuse themselves, counsel
should have been particularly vigilant in searching for evidence that
Kandies had been sexually abused as a child.

   The state court did not find — and there is no evidence to support
such a finding — that Kandies’s counsel made a "reasonable profes-
sional judgment[ ]" when he failed to ask anyone whether Kandies
had ever been sexually abused. See Strickland, 466 U.S. at 691. The
only explanation counsel provided for this failure was that during his
open-ended investigatory interviews "the subject of child[hood] sex-
ual abuse which Mr. Kandies may have suffered was never raised" by
anyone. J.A. 1374. Thus, counsel, like my colleagues, ante at 16-17
and post at 46-47, and the state court, J.A. 1381-82, attempts to blame
those being interviewed for not volunteering that Kandies had been
sexually abused. However, the ABA guidelines and common sense
dictate that it is counsel’s responsibility to inquire into specific areas
that might prove useful in mitigation. Counsel cannot expect the
accused or his family and friends to know what sorts of facts in the
accused’s background might be relevant to sentencing. Moreover, it
is unrealistic to assume that facts going to mitigation — facts that are
often painful to discuss because they may involve abuse or emotional
trauma — will be freely volunteered in open-ended interviews. While
open-ended interviews and questions have their place, no lawyer
could expect to uncover all potentially useful information unless he
explores important mitigation terrain with specificity. The failure of
Kandies’s counsel to conduct any sort of inquiry into possible child-
32                          KANDIES v. POLK
hood sexual abuse amounted to constitutionally deficient perfor-
mance, and the state court’s conclusion to the contrary is objectively
unreasonable.

   My two colleagues conclude that Kandies’s counsel made a con-
certed effort to undertake a thorough investigation of Kandies’s back-
ground for any mitigating evidence and that Kandies thus cannot
establish that his counsel’s performance was objectively unreason-
able. Ante at 17-18; post at 46-47. In support of their separate conclu-
sions, my colleagues note that Kandies’s counsel conducted numerous
interviews with the defendant, his friends, members of his family, and
mental health professionals. Ante at 16; post at 40. My colleagues fur-
ther observe that Kandies’s counsel presented thirty-three mitigating
factors to the jury and that the jury accepted twenty-one of those fac-
tors. Ante at 17; post at 50. Likewise, the state court reviewed the mit-
igating evidence presented by counsel and concluded that
"considering all [the] circumstances . . . trial counsel’s performance
was not objectively unreasonable." J.A. 1383.

   My colleagues and the state court focus on the wrong issue. The
question is not whether counsel made an overall concerted effort to
investigate Kandies’s background. Rather, the question is whether "a
particular decision not to investigate" is "reasonable[ ] in all the cir-
cumstances." Strickland, 466 U.S. at 691 (emphasis added). While
counsel seems to have conducted a meaningful investigation into cer-
tain aspects of Kandies’s background, there is nothing to suggest that
counsel’s decision to conduct no investigation into an entire area of
potentially mitigating evidence was "reasonable[ ] in all the circum-
stances." Id. Indeed, counsel admits in his affidavit that he "would
have pursued" Kandies’s history of sexual abuse as a possible miti-
gating factor if he had known about it. J.A. 1374 (emphasis added).
Counsel did not know about it for one reason: his investigation of
Kandies’s background was unreasonably limited. The fact that Kan-
dies’s counsel hired a substance abuse expert and forensic psycholo-
gist to evaluate Kandies does not alter my conclusion that counsel’s
performance was constitutionally deficient because neither expert
asked Kandies if he had been sexually abused as a child. J.A. 1371,
1383. The Supreme Court reached the same conclusion in Wiggins,
reasoning that "counsel’s decision to hire a psychologist" and that
psychologist’s "clinical interviews with [the defendant], as well as
                            KANDIES v. POLK                           33
meetings with [the defendant’s] family members," "sheds no light on
the extent of [counsel’s] investigation" because there was no indica-
tion that the psychologist investigated other areas (such as social his-
tory) of the defendant’s background. 539 U.S. at 532.

   My colleagues transform Strickland’s objective inquiry (with due
deference to counsel’s justifications for his actions) into a rule that
counsel’s investigation of mitigating factors can never be constitu-
tionally deficient if he puts on some mitigation evidence and a court
can come up with a theoretical justification to excuse a blunder.
Because this approach contravenes Strickland, I would hold only that
the state court’s conclusion that Kandies was not prejudiced by his
counsel’s performance was not an unreasonable application of federal
law.

TRAXLER, Circuit Judge, concurring:

   Jeffrey Clayton Kandies was found guilty by a jury of the first-
degree murder and rape of four-year-old Natalie Lynn Osborne. In
accordance with the jury’s unanimous recommendation, Kandies was
sentenced to death. His direct appeals were unsuccessful as was his
bid for collateral relief in North Carolina state court. Kandies subse-
quently filed this federal action for habeas relief under 28 U.S.C.A.
§ 2254 (West 1994 & Supp. 2004). The district court denied his appli-
cation for relief, and Kandies appeals that denial to this court. For the
reasons set forth below, I would also affirm the district court’s denial
of habeas relief, and thus I concur in the result reached by Judge
Gregory’s opinion. I write separately, however, because my applica-
tion of § 2254 to the state court’s disposition of Kandies’ claims dif-
fers substantially from that of my colleague Judge Gregory.

                                   I.

   The pertinent facts are recounted thoroughly in the opinion from
the North Carolina Supreme Court issued on direct review:

       Patricia Craven lived in Asheboro with her four-year-old
    daughter, Natalie, and her sons, Zachary and Jeremy, ages
    six and one, respectively. [Kandies] was Craven’s fiancé
34                          KANDIES v. POLK
     and Jeremy’s father. Although [Kandies] had a separate resi-
     dence approximately ten miles away in Randleman, he often
     stayed with Craven at her apartment in Asheboro.

        On Easter Monday, 20 April 1992, [Kandies] and Craven
     disciplined Natalie for eating Zachary’s Easter candy by
     requiring her to stay in her room for the remainder of the
     day. Craven saw Natalie periodically throughout the day,
     but last saw her alive between 4:00 and 4:30 p.m. Around
     4:45 p.m., [Kandies] left the apartment to go to the grocery
     store. He did not return until 7:30 that evening. He attributed
     his tardiness to helping an elderly couple who had mechani-
     cal problems with their Winnebago. Once home, [Kandies]
     began fixing a pizza for the children. When it was ready, he
     told Zachary to call for Natalie. When Zachary did not find
     Natalie in her bedroom, [Kandies] and Craven began look-
     ing for her. One neighbor told Craven that he had noticed
     Natalie outside playing sometime that afternoon, but no one
     recalled seeing her since that time. After a while, [Kandies]
     called the Asheboro Police Department to report Natalie
     missing. An extensive search for her was conducted that
     night, but without success.

        Earlier that evening, around 7:00 p.m., [Kandies] entered
     . . . a small convenience store located about one-half mile
     from the Craven residence. Carolyn Wood, the clerk, testi-
     fied that at that time, [Kandies] was complaining about his
     hand hurting. He told Wood that he had gotten into a fight
     with his brother. Wood noticed that the hand was beginning
     to swell and suggested that [Kandies] let a medical techni-
     cian who happened to be in the store look at his hand to see
     if it was broken. [Kandies] declined and immediately left the
     store.

        Later that evening, close to midnight, [Kandies] returned
     to the store to ask if Wood had seen Natalie . . . and told her
     to call the police if she saw the little girl. At the time, Wood
     observed black garbage bags in the back of [Kandies’] truck.

       On Tuesday, 21 April 1992, [Kandies] agreed to accom-
     pany officers to his residence in Randleman to look for Nat-
                       KANDIES v. POLK                            35
alie. The police surmised that perhaps Craven and [Kandies]
had hidden Natalie at the Randleman residence because Cra-
ven had been in a custody dispute over Natalie with her for-
mer husband, Ed Osborne. The police looked through the
house but did not find Natalie.

   On Wednesday, 22 April, Craven and [Kandies] went to
the Asheboro Police Department for questioning. . . . Upon
[Kandies’] return to the apartment [having been interrogated
much longer than Craven], Craven asked him if he knew
anything about . . . Natalie. [Kandies] responded by telling
Craven that he had hit Natalie with his truck when he was
leaving to go to the grocery store . . . . [Kandies] said he
panicked because he had been drinking. He picked Natalie
up and took her to the house in Randleman to clean her off
and see how badly she was hurt. During the drive to Randle-
man, [Kandies] said that Natalie was making gurgling
noises and that her head did not look right. After trying to
clean her up, [Kandies] concealed Natalie and her clothes in
a garbage bag and put the bag in a bedroom closet. [Kan-
dies] then got in his truck and took his time returning to
Asheboro.

  Craven called the police immediately . . . . [Kandies] gave
details as to the location of Natalie’s body and signed con-
sent to search forms for the Randleman house.

   The police searched the Randleman residence and found
Natalie’s body in a plastic bag, buried under a pile of clothes
and carpet pieces in a bedroom closet. A bloody playsuit
and a bloody pair of panties, both turned inside out, were
also found in the bag. . . .

  Dr. Thomas Clark, a forensic pathologist, performed an
autopsy . . . [and] found two lacerations to the top of the
head which he characterized as blunt-force injuries. He also
found lacerations on the right side of the head and abrasions
on the left side of the head and on the front of the neck;
there was evidence the skull had been fractured. There were
multiple bruises on the back and both sides; the bruises were
36                          KANDIES v. POLK
     small and rounded and had a distribution and shape sugges-
     tive of an adult hand. Clark also found injuries to the pelvic
     region. There were bruises on both sides of the vagina,
     which was full of blood. The opening of the vagina was pat-
     ulous, and there was a laceration a half-inch wide and an
     inch long on the back wall of the vagina. Clark opined that
     these injuries were indicative of sexual assault and that they
     had occurred at or about the time of death.

        . . . . [Kandies] denied [in a statement to police] doing
     anything sexual to Natalie. He remembered taking Natalie
     to his house, putting her in the bathtub, and taking off her
     clothes to see how badly she was hurt. At that time Natalie
     was bleeding extensively but appeared to be alive and mov-
     ing. [Kandies] stated that he could not handle the situation
     and may have strangled Natalie.

State v. Kandies, 467 S.E.2d 67, 73-74 (N.C. 1996). The jury found
Kandies guilty of first-degree murder on two bases: (1) felony murder
and (2) premeditation and deliberation. The jury also found Kandies
guilty of first-degree rape.

   Following the sentencing proceedings, the jury found two aggra-
vating circumstances: (1) that Kandies committed the murder during
the commission of first degree rape, and (2) that the murder was espe-
cially heinous, atrocious, or cruel. Kandies offered five statutory miti-
gating factors, of which the jury found three. Additionally, the jury
found eighteen of twenty-eight nonstatutory mitigating factors. The
jury unanimously recommended that Kandies be sentenced to death,
and the trial court sentenced Kandies accordingly.

   On direct appeal to the North Carolina Supreme Court, Kandies
raised several issues, including the claim that the prosecution used its
peremptory challenges to strike prospective jurors on the basis of race
in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and its prog-
eny. The North Carolina Supreme Court rejected Kandies’ Batson
claim, holding that "the State’s dismissal of each of these jurors was
based on race-neutral reasons which were clearly supported by their
individual responses during voir dire." Kandies, 467 S.E.2d at 76. The
United States Supreme Court denied Kandies’ petition for a writ of
                            KANDIES v. POLK                            37
certiorari on the Batson claim as well as all other claims raised on
direct appeal. See Kandies v. North Carolina, 519 U.S. 894 (1996).

   Kandies next filed a motion for appropriate relief ("MAR") in
North Carolina Superior Court, alleging, inter alia, that counsel was
ineffective for failing to discover that he was sexually abused at an
early age. The state MAR court denied relief on this claim. On
remand for reconsideration by the Supreme Court of North Carolina,
the state MAR court affirmed its earlier order, and the supreme court
subsequently denied Kandies’ petition for a writ of certiorari. See
State v. Kandies, 539 S.E.2d 640 (N.C. 1999).

   Finally, Kandies applied for habeas relief in district court pursuant
to 28 U.S.C.A. § 2254. He raised numerous claims, each of which
was denied by the district court. See Kandies v. Lee, 252 F. Supp. 2d
252 (M.D.N.C. 2003). We issued a certificate of appealability under
28 U.S.C.A. § 2253 (West Supp. 2004) for only two of these claims:
(1) that the prosecution violated Batson by peremptorily striking pro-
spective jurors based on race and that the North Carolina Supreme
Court on direct review unreasonably rejected the Batson claim; and
(2) that the MAR court unreasonably rejected Kandies’ ineffective
assistance of counsel claim, which was based on the attorneys’ failure
to discover Kandies’ background of sexual abuse for use as a mitiga-
tor during the sentencing phase.

   For the reasons suggested in my analysis below, I concur with
Judge Gregory that Kandies is not entitled to habeas relief, although
I would apply the standard of review prescribed by Congress in
§ 2254 differently.

                                   II.

   Because Kandies’ federal claims have been adjudicated on the mer-
its by the North Carolina state court, we are constrained in our review
by the standards set forth in § 2254(d). Under this provision, a federal
habeas court is precluded from granting habeas relief unless it con-
cludes that the state court’s adjudication of a claim "resulted in a deci-
sion that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States" or "resulted in a decision that was based on an
38                          KANDIES v. POLK
unreasonable determination of the facts in light of the evidence pre-
sented in the State court proceeding." 28 U.S.C.A. § 2254(d); see also
Williams v. Taylor, 529 U.S. 362, 412 (2000).

   A state court decision is "contrary to . . . clearly established Federal
law, as determined by the Supreme Court," 28 U.S.C.A. § 2254(d)(1),
"if the state court arrives at a conclusion opposite to that reached by
th[e] Court on a question of law or if the state court decides a case
differently than th[e] Court has on a set of materially indistinguish-
able facts," Williams, 529 U.S. at 413. A state court decision "in-
volve[s] an unreasonable application of[ ] clearly established Federal
law, as determined by the Supreme Court," 28 U.S.C.A. § 2254(d)(1),
if the state court decision "identifies the correct governing legal prin-
ciple from th[e] Court’s decisions but unreasonably applies that prin-
ciple to the facts of the prisoner’s case," Williams, 529 U.S. at 413.
An objectively "unreasonable application of federal law is different
from an incorrect or erroneous application of federal law." Id. at 412.
"[A] federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant state-
court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable." Id. at
411.

                                   III.

   I begin with Kandies’ claim that his defense counsel was constitu-
tionally ineffective for inadequately investigating his background and
discovering that he had been sexually molested as a child, and for
failing to present such evidence as mitigating during the penalty phase
of his trial.

                                    A.

   The Sixth Amendment requires that "[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence," U.S. Const. amend. VI, and that such assistance be
effective, see Strickland v. Washington, 466 U.S. 668, 686 (1984). In
order to establish an ineffective assistance of counsel claim, Kandies
was required to establish (1) that his "counsel’s representation fell
below an objective standard of reasonableness," measured by the
                          KANDIES v. POLK                          39
"prevailing professional norms," id. at 688, and (2) "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.
"Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the adver-
sary process that renders the result unreliable." Id. at 687.

                                 B.

   During his trial, Kandies was represented by two court-appointed
attorneys, Mr. Clark Bell, who was appointed as lead counsel, and
Mr. Scott Dunn, who was appointed to assist Mr. Bell as second-chair
counsel. In his MAR before the state court, Kandies asserted that he
received ineffective assistance of counsel because (1) Mr. Dunn did
not meet the minimum qualifications required by the rules for
appointment of counsel for indigent defendants; and (2) Mr. Dunn’s
mitigation investigation was inadequate because he failed to discover
that Kandies had been sexually molested as a young child. In support
of his ineffectiveness claim, Kandies submitted affidavits completed
by Mr. Dunn, his mother, and himself.

  According to Kandies’ affidavit, he was the victim of sexual
molestation by his uncle, Ronald Kandies, when he was six years old.
Kandies stated that:

    [t]hese incidents of sexual abuse took place when I was liv-
    ing in New York State. My uncle, who was an adult 15-20
    years older than me, would touch my private parts with his
    hand. He would also make me touch his private parts. He
    would also take showers with me and fondle me while in the
    shower. My uncle would buy me toys such as GI Joes in
    order to get me not to tell anybody about what he was doing
    to me. These traumatic experiences haunted me throughout
    my adult life.

J.A. 1371. Kandies’ mother had no knowledge of Kandies’ sexual
molestation by his uncle. Upon learning of Kandies’ claim, she could
state only that she had been "somewhat curious as to why [Kandies’
uncle] always wanted to baby-sit for [her] son" and why he "was
always buying gifts for [Kandies]" when he was six years old. J.A.
40                         KANDIES v. POLK
1375. She also noted that Kandies wet the bed until he was ten or
eleven years old and was reluctant to let her assist him with dressing
and undressing.

   Mr. Dunn also submitted an affidavit. According to Mr. Dunn, he
"served as court-appointed second chair counsel" to Mr. Bell, and his
"primary responsibility was preparation of the mitigation phase of the
trial." J.A. 1373-74. Mr. Dunn, during the course of his preparations,

     had numerous interviews with Mr. Kandies, members of his
     family, friends and mental health professionals regarding
     possible items in Mr. Kandies’ background that could be
     presented as mitigating factors. During the course of these
     discussions[,] the subject of child sexual abuse which Mr.
     Kandies may have suffered was never raised, and [he] never
     investigated this area as a possible mitigating factor.

J.A. 1374. For his part, Kandies confirms that "[d]uring the course of
preparing for trial," he "met with Mr. Dunn and Mr. Bell on various
occasions," but avers that "[a]t no time during the investigation and
trial preparation stage of [his] case was [he] ever questioned by [his]
attorneys or anybody acting on their behalf if [he] had been the victim
of childhood sexual abuse or any other crime." Kandies states that
"[h]ad [he] been asked [he] would have told of [his] molestation by
[his] uncle . . . when [he] was six years old." J.A. 1371.

   The state MAR court rejected Kandies’ claim that his legal repre-
sentation was deficient based upon his claim that Mr. Dunn did not
meet the minimum qualifications required by the rules for appoint-
ment of counsel for indigent defendants. The court noted that Kandies
was represented by two competent trial counsel (Mr. Bell and Mr.
Dunn) and that Mr. Dunn’s limited experience did not result in a per-
formance that fell below the applicable standards. Additionally, the
court noted that, even if it were to assume that Mr. Dunn’s appoint-
ment was contrary to the state bar rules concerning appointment of
counsel in capital cases, Kandies failed to demonstrate that he was
prejudiced in his defense as a result.

  The MAR court also rejected Kandies’ claim that his trial attor-
neys’ performance was objectively unreasonable because they failed
                           KANDIES v. POLK                           41
to discover evidence of sexual molestation. The court noted that the
subject of child sexual abuse now claimed by Kandies was never
raised by Kandies or any of the other numerous witnesses interviewed
by his attorneys in preparation for the mitigation case, and that the
trial attorneys were diligent and thorough in the presentation of the
mitigation case, as evidenced by the number and nature of the defense
witnesses they were able to bring to trial.1 The state court also con-
cluded that trial counsels’ failure to specifically ask Kandies whether
he had been the victim of childhood sexual abuse, in the absence of
any indication or suspicion that he had been, "was not per se ineffec-
tive assistance of counsel, and, considering all circumstances, that
trial counsel’s performance was not objectively unreasonable." J.A.
1383. Additionally, the court concluded that Kandies failed to "dem-
onstrate the existence of a reasonable probability that the outcome of
the sentencing phase of the trial would have been different had trial
counsel" discovered and presented his claims of childhood sexual
abuse. J.A. 1383.

                                  C.

   I begin with the state court’s determination that Kandies failed to
demonstrate that his "counsel’s representation fell below an objective
standard of reasonableness," as measured by the "prevailing profes-
sional norms." Strickland, 466 U.S. at 688.

   In preparation for the mitigation phase of the case, Kandies’ attor-
neys conducted numerous interviews with Kandies, members of Kan-
dies’ family, and several of Kandies’ childhood and current friends in
order to prepare a family and social history. In addition, the attorneys
enlisted the support of two mental health professionals regarding pos-
sible items in Kandies’ background that could be presented as mitigat-
  1
   As noted by the state MAR court, trial counsel presented the testi-
mony of Kandies’ mother, three of Kandies’ friends from South Caro-
lina, Kandies’ former landlady in Maine, a former driving instructor and
coworker of Kandies, the clerk from a beer store near Kandies’ place of
employment where he frequently bought significant quantities of beer, an
expert in substance abuse who spent numerous hours interviewing Kan-
dies, and a forensic psychologist who spent numerous hours interviewing
and testing Kandies.
42                          KANDIES v. POLK
ing factors. As a result of these efforts, Kandies’ attorneys presented
the testimony of eight lay witnesses and two expert witnesses during
the sentencing phase, developing a strategy of mitigation that
included, among other things, evidence of Kandies’ difficult child-
hood and the early onset and progressively pathological nature of
Kandies’ substance abuse and dependence.

   During this presentation, Kandies’ mother testified that her hus-
band was physically violent towards her and drank alcohol exces-
sively, and that Kandies, even at a young age, would attempt to
protect her and his sister from the man he then believed was his
father. Ms. Kandies testified that, when Kandies was approximately
14 years old, she and her husband planned to separate and Kandies
learned for the first time that her husband was not his biological father
and that his biological father was deceased. According to Ms. Kan-
dies, this upset Kandies significantly and for a long time. According
to Ms. Kandies, Kandies got drunk in high school and had to com-
plete a 6-week alcohol and drug abuse program, and Kandies eventu-
ally dropped out of school his senior year. Kandies’ friends and other
acquaintances confirmed this history of substance abuse.

   Dr. Brian Glover, a clinical psychologist with a specialty in addic-
tive disorders and a clinical faculty member with the Department of
Psychiatry at the University of North Carolina in Chapel Hill, also
appeared for the defense. Dr. Glover testified that he personally inter-
viewed Kandies on three separate occasions prior to trial, for a total
of approximately six hours, and interviewed three of Kandies’
acquaintances to collaborate the information obtained from Kandies
regarding his social history and substance abuse. At trial, Dr. Glover
presented extensive testimony regarding Kandies’ history of sub-
stance abuse, which began when he was 12 years old and escalated
during his adolescent years. Dr. Glover testified that, in his opinion,
Kandies had a long-standing, severe dependence on alcohol, constitut-
ing a mental or emotional disturbance. Dr. Glover testified that, based
upon Kandies’ statement that he had drunk approximately twelve
beers on the day of Natalie’s rape and murder, and the effect of that
quantity upon his ability to make good decisions or judgments and
control his emotions, it was his opinion that Kandies’ ability to appre-
ciate the criminality of his actions was impaired on the evening that
Natalie was raped and killed.
                           KANDIES v. POLK                           43
   Dr. Claudia Coleman, a forensic psychologist who assisted the
defense in the preparation of the mitigation case, also conducted
extensive interviews, including asking questions pertaining to Kan-
dies’ social, educational, and family history. She interviewed Kandies
in September 1993 and in November 1993 for approximately three
hours each time, and conducted psychological testing, intellectual
testing, and neuropsychological screening for neurological impair-
ment. Dr. Coleman reviewed the police investigative reports, Kan-
dies’ school, military, and work records, and witness statements. She
also consulted with Dr. Glover. She presented testimony that Kandies
had discussed with her various problems he had experienced with
fighting when enlisted in the army and his ultimate discharge from the
armed services, but no testimony indicating that Kandies discussed
any history of sexual molestation with her. It was the opinion of Dr.
Coleman that Kandies suffered from two primary clinical disorders:
alcohol dependence and a personality disorder exhibiting traits of
passive-aggressiveness, impulsivity, and immaturity. She classified
Kandies as having emotional or mental disturbances and also testified
that, in her opinion, his judgment and ability to think clearly were
impaired on the evening of Natalie’s rape and murder.

   Kandies declined to exercise his right to testify during the mitiga-
tion phase of his trial, choosing instead to only make the following
statement in allocution:

    I just want to apologize to everybody that had a part of Nat-
    alie’s life, and that’s her mother Pat, her father Ed, and her
    grandparents, and I just want to tell you how deeply sorry
    I am for what I have done, the grief that I have put you all
    through. I can’t change nothing, and I really wish I could.
    I just hope that you all can find it in your hearts to forgive
    me for what I have done. That’s all.

J.A. 1206.

  On habeas review, Kandies takes little issue with the general thor-
oughness of the mitigation investigation conducted by his attorneys.
And there appears to be no dispute that none of the mitigation wit-
nesses, nor Kandies himself, ever mentioned anything about the sex-
ual molestation allegedly inflicted upon Kandies as a child by his
44                          KANDIES v. POLK
uncle. Rather, Kandies’ specific claims of ineffectiveness are quite
narrow. He asserts that his attorneys’ performance fell below the pre-
vailing professional norms, and that the state court unreasonably con-
cluded to the contrary, because (1) Mr. Dunn lacked the necessary
experience and failed to seek a mitigation investigator in contraven-
tion of the ABA Guidelines for capital litigation, and (2) Mr. Dunn
unreasonably failed to specifically ask Kandies whether he had been
sexually molested as a child in order to elicit that withheld informa-
tion.

                                   1.

   I need not tarry long with Kandies’ first claim, i.e., that the repre-
sentation he received was constitutionally ineffective, and that the
state MAR court unreasonably concluded to the contrary, because his
second-chair defense attorney lacked the necessary qualifications and
experience to try a death penalty case and, as a result, also failed to
seek a mitigation investigator as recommended by the ABA guide-
lines governing death penalty cases. Cf. Wiggins v. Smith, 123 S. Ct.
2527, 2536-37 (2003) (noting that "the standards for capital defense
work articulated by the American Bar Association (ABA)" have long
been referred to "as ‘guides to determining what is reasonable’"
(quoting Strickland, 466 U.S. at 688)).

   In order to establish an ineffective assistance of counsel claim,
Kandies was required to demonstrate that the actual representation he
received from his attorneys "fell below an objective standard of rea-
sonableness," as measured by the "prevailing professional norms."
Strickland, 466 U.S. at 688. As noted by the state court, Kandies was
represented by two licensed and competent court-appointed trial attor-
neys. The limited experience of Mr. Dunn alone demonstrates nothing
about the competency of the representation that Kandies received
from his attorneys. Thus, Kandies clearly failed to demonstrate that
Mr. Dunn’s limited experience in capital murder trials resulted in a
performance that fell below the applicable standards or that it resulted
in any prejudice to him, and the state court did not unreasonably con-
clude to the contrary.

   Kandies’ claim that his attorneys unreasonably failed to enlist the
assistance of a "mitigation investigator" is also unavailing. According
                              KANDIES v. POLK                              45
to Kandies, the ABA guidelines required the attorneys to enlist the
assistance of investigators and other assistants" and of "experts where
it is necessary or appropriate" for the preparation of the defense. As
noted by the state court, and as discussed in more detail below, Kan-
dies’ attorneys enlisted the aid and testimony of law enforcement offi-
cers and two mental health professionals during the mitigation phase
of the case including, most notably, a forensic psychologist with
extensive experience in capital and other criminal trials.2

                                     2.

   Thus, I turn to the heart of Kandies’ claim, i.e., that the state court
unreasonably concluded that his defense counsel was not constitution-
ally ineffective for failing to specifically ask him whether he had been
sexually molested as a child. In a nutshell, Kandies asserts that in any
capital case involving child molestation, an attorney must be deemed
ineffective if he or she does not specifically ask whether the defen-
dant has a history of sexual molestation as a child. This is so, Kandies
asserts, because of the "well-known" fact that child sex offenders are
often sexually molested as children.

   In death penalty cases, defense attorneys are required to undertake
reasonable investigations into possible mitigating evidence that could
be presented during the penalty phase. See Wiggins, 123 S. Ct. at
2535-36; Strickland, 466 U.S. at 691. "[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary. In any ineffectiveness case, a
  2
    The record is unclear as to whether Kandies raised this "mitigation
investigator" claim before the state MAR court or, for that matter,
whether he raised the ABA guidelines in support of his ineffectiveness
claim at all before that court. The state court opinion appears to indicate
that Kandies took issue with Mr. Dunn’s experience under the state rules
governing the appointment of counsel for indigent defendants. However,
the state does not assert that these more specific claims are procedurally
barred. In any event, I have no trouble concluding de novo that Kandies
failed to demonstrate that his counsel was ineffective based upon his
level of experience or his failure to retain a mitigation investigator or that
the state court’s adjudication of the "experience" claim was not an unrea-
sonable one.
46                          KANDIES v. POLK
particular decision not to investigate must be directly assessed for rea-
sonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgment." Strickland, 466 U.S. at 691.
"[T]here is a presumption that ‘counsel’s conduct falls within the
wide range of reasonable professional assistance.’" Byram v. Ozmint,
339 F.3d 203, 209 (4th Cir. 2003) (quoting Strickland, 466 U.S. at
689). "Strickland does not require counsel to investigate every con-
ceivable line of mitigating evidence no matter how unlikely the effort
would be to assist the defendant at sentencing. Nor does Strickland
require defense counsel to present mitigating evidence at sentencing
in every case." Wiggins, 123 S. Ct. at 2541.

   Having reviewed the evidence presented at sentencing and that
offered in support of the state MAR claim, I cannot say that the North
Carolina court’s adjudication of this claim was contrary to or an
unreasonable application of these governing Supreme Court prece-
dents. This is not a case in which trial counsel failed to conduct any
inquiry, or conducted only a cursory inquiry, into the accused’s fam-
ily background and social history. See Williams, 529 U.S. at 396 (con-
cluding that counsel’s failure to uncover and present voluminous
mitigating evidence at sentencing could not be justified as a tactical
decision because counsel had not "fulfill[ed] their obligation to con-
duct a thorough investigation of the defendant’s background"); Wig-
gins, 123 S. Ct. at 2536 (noting that, "in deciding whether [counsel]
exercised reasonable professional judgment," we must "focus on
whether the investigation supporting counsel’s decision not to intro-
duce mitigating evidence of [defendant’s] background was itself rea-
sonable" (internal quotation marks and emphasis omitted)). Rather,
the evidence indicates that Kandies’ counsel thoroughly and compe-
tently investigated Kandies’ social history, and enlisted the assistance
of experts to do the same, in order to uncover, among other things,
any childhood or adolescent history that might have mitigating value.
Indeed, through this process, it was discovered that Kandies had been
exposed to a dysfunctional childhood environment which included an
alcoholic stepfather, his stepfather’s verbal abuse and physical abuse
towards his mother, Kandies’ attempts to protect his mother and sister
from his stepfather, and Kandies’ discovery during his adolescent
years that this man was his stepfather and not, as he had been led to
believe, his father. Yet at no time did Kandies’ mother, Kandies, nor
any of the other witnesses advise defense counsel or the experts
                             KANDIES v. POLK                            47
retained to assist them in the preparation of mitigating evidence that
Kandies had been the victim or was suspected of having been the vic-
tim of any sexual abuse or, for that matter, any physical abuse him-
self. Cf. Barnes v. Thompson, 58 F.3d 971, 979-80 (4th Cir. 1995)
(holding that defense counsel "may rely on the truthfulness of his cli-
ent and those whom he interviews in deciding how to pursue his investi-
gation").3

   In sum, the North Carolina court held that defense counsels’ other-
wise thorough investigation and presentation of mitigating evidence
was not rendered objectively unreasonable simply because counsel
did not specifically ask Kandies if he had been sexually molested as
a child. I concur in the denial of federal habeas relief because I cannot
say that this adjudication was contrary to or involved an unreasonable
interpretation of the applicable Supreme Court precedents. Cf. Wig-
gins, 123 S. Ct. at 2535 ("We have declined to articulate specific
guidelines for appropriate attorney conduct and instead have empha-
sized that ‘[t]he proper measure of attorney performance remains sim-
ply reasonableness under prevailing professional norms.’" (quoting
Strickland, 466 U.S. at 688)); Strickland, 466 U.S. at 691 ("The rea-
sonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions. Counsel’s
actions are usually based, quite properly, on informed strategic
choices made by the defendant and on information supplied by the
defendant. In particular, what investigation decisions are reasonable
depends critically on such information.").
  3
   As noted by the state MAR court:
      Neither of the two experts in psychology who interviewed and
      evaluated defendant mentioned in their testimony anything indi-
      cating that defendant had told them that he had been the victim
      of sexual abuse as a child. Furthermore, neither defendant’s
      mother nor any of the other witnesses who testified on defen-
      dant’s behalf said anything about defendant being the victim of
      sexual abuse as a child. On the one occasion when defendant
      personally addressed the jury, he did not state anything about
      being sexually abused as a child.
J.A. 1379.
48                         KANDIES v. POLK
                                  D.

   I would also deny habeas relief because, in my view, the North
Carolina state court reasonably concluded that Kandies failed to
establish that he was prejudiced by the failure to present the evidence
of his alleged sexual molestation to the jury.

   Although concluding that Kandies’ trial counsel were not ineffec-
tive in their investigation and presentation of the mitigation case, the
state MAR court went on to reach this second prong of the Strickland
analysis and concluded that, even if the attorneys’ failure to discover
the sexual abuse could be considered deficient performance, the "evi-
dence of record affirmatively demonstrates that the failure to produce
evidence of childhood sexual abuse did not produce the prejudice that
is a requirement of reversal." J.A. 1383. Specifically, the court deter-
mined that the "failure to discover and present evidence of defen-
dant’s childhood sexual abuse does not demonstrate the existence of
a reasonable probability that the outcome of the sentencing phase of
the trial would have been different had trial counsel presented such
evidence." J.A. 1383.

   In order to establish a Sixth Amendment ineffective assistance of
counsel claim, Kandies was required to demonstrate that counsel’s
alleged deficient performance prejudiced his defense. In order to dem-
onstrate prejudice, Kandies was required to "show that there is a rea-
sonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694; see also Wiggins, 123 S. Ct.
at 2542. In the death penalty context, to assess prejudice, the court
must "reweigh the evidence in aggravation against the totality of the
available mitigating evidence." Wiggins, 123 S. Ct. at 2542. Prejudice
requires "a reasonable probability that at least one juror would have
struck a different balance." Wiggins, 123 S. Ct. at 2543.

   Few would dispute that the aggravating evidence in this case was
compelling. The jury was presented with evidence that Kandies bru-
tally raped and murdered a four-year-old child. Blood was found on
the bathroom floor and tub, the bedroom floor, the laundry room
floor, the kitchen floor, and the floor between the bedroom, bathroom,
                           KANDIES v. POLK                              49
and den at Kandies’ home. As noted by the North Carolina Supreme
Court,

    the State’s evidence tended to show that Natalie was sav-
    agely beaten, strangled, and sexually assaulted by a man
    whom she knew and trusted. When discovered, she was in
    a trash bag buried in the recesses of a closet, bloodied and
    naked, with her soiled [panties and playsuit] piled on top of
    her. An autopsy showed that Natalie had suffered two blunt-
    force lacerations to the top of her head. The right side of her
    head was fractured, and there were seven separate bone
    fragments in the area, one of which had penetrated the brain
    and caused a hemorrhage. There were multiple bruises on
    her face, back, neck, sides, and chest. An abrasion on the
    front of the neck measuring one-inch wide and approxi-
    mately two and one-half inches long indicated manual stran-
    gulation. There was some discoloration around the rectum,
    bruises on both sides of the vagina, and blood deep within
    the vaginal canal.

       The pathologist opined that Natalie died as a result of
    blunt-force injury to the head. While she probably lost con-
    sciousness soon after the painful blows, none of the injuries
    would have caused her heart to stop beating immediately.
    Therefore, it was several excruciating moments before she
    actually died.

       This evidence, viewed in the light most favorable to the
    State, was sufficient to support a reasonable inference that
    Natalie suffered great physical pain as a result of being bru-
    tally beaten, raped with sufficient violence to cause bleeding
    in her vagina, and strangled so forcefully that her neck was
    scratched. It also supports an inference that the murder was
    dehumanizing and psychologically torturous. The patholo-
    gist testified that Natalie’s pelvic injuries occurred at or near
    the time of death. When a murder occurs during the perpe-
    tration of a violent sexual assault, it is unusually dehumaniz-
    ing and debasing. Further, defendant abused the trust of a
    four-year-old girl and violated her in multiple ways. A rea-
    sonable jury could infer that Natalie experienced terror, con-
50                          KANDIES v. POLK
     fusion, and anguish from the moment the defendant drove
     off with her in the truck until her last breath.

Kandies, 467 S.E.2d at 84-85 (citations omitted). At the conclusion
of the capital sentencing phase, the jury found, based solely upon the
evidence presented during the guilt phase, that Natalie was murdered
while Kandies was engaged in the commission of first-degree rape
and that the murder was especially heinous, atrocious, or cruel.

   As a result of the thorough efforts of defense counsel, however, the
jurors found three of five proposed statutory mitigating circumstances
and eighteen of twenty-eight nonstatutory mitigating circumstances.
Specifically, members of the jury found (1) that the defendant had no
significant history of prior criminal activity; (2) that the murder was
committed while the defendant was under the influence of mental or
emotional disturbance; (3) that the capacity of the defendant to appre-
ciate the criminality of his conduct or to conform his conduct to the
requirements of the law was impaired; (4) that the defendant cried and
expressed remorse when talking to Natalie’s mother on April 23,
1992; (5) that the defendant cried and expressed remorse when talking
to Officer Wilson on April 23, 1992; (6) that the defendant called the
Asheboro Police Department to speak to Officer Wilson regarding
Natalie’s location prior to his arrest; (7) that the defendant called the
Asheboro Police Department to talk to Officer Wilson to acknowl-
edge his responsibility for Natalie’s death prior to his arrest; (8) that
the defendant voluntarily waived his right to remain silent and to
speak to an attorney or to have an attorney present; (9) that the defen-
dant made voluntary acknowledgments of his responsibility for Nata-
lie’s death to Officer Wilson and Officer McIver on April 23, 1992;
(10) that the defendant was a chronic, long-term substance abuser;
(11) that the defendant suffered from acute substance abuse; (12) that
the defendant had a troubled childhood; (13) that the commission of
the crime was out of character for the defendant; (14) that the defen-
dant was led to believe that his stepfather was his biological father
until he was twelve years old and was told at that time that his real
father was dead; (15) that the defendant never had a positive role
model; (16) that the defendant suffered from a personality disorder;
(17) that the defendant came from a dysfunctional family; (18) that
the defendant as a child observed verbal and physical abuse of his
mother by his stepfather; (19) that the defendant was the child of an
                            KANDIES v. POLK                           51
alcoholic step-parent; (20) that the defendant suffered from a history
of depression; and (21) that the defendant was reared in an unstable
environment.

   In short, Kandies’ sentencing jurors heard and found a number of
significant mitigating factors, yet still unanimously found that the mit-
igating circumstances did not outweigh the aggravating circumstances
and recommended a sentence of death. The North Carolina MAR
court determined that there was no reasonable probability that the jury
would have returned a different sentence recommendation had it been
confronted with Kandies’ testimony that he was sexually molested at
the age of six in the fashion described in his affidavit. In light of the
totality of the evidence presented at trial and in the state habeas pro-
ceeding, I cannot say that this was an unreasonable decision on its
part.

                                  IV.

   The next issue is whether the North Carolina Supreme Court’s
rejection of Kandies’ Batson claims "was contrary to, or involved an
unreasonable application of, clearly established Federal law," or "was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28 U.S.C.A.
§ 2254(d)(1) and (2). The prosecution peremptorily struck several
prospective African-American jurors; Kandies contends that the State
excluded these jurors based on their race, which is constitutionally
impermissible under Batson, which teaches that the Equal Protection
Clause prohibits the use of peremptory strikes against a prospective
juror on the basis of race. 476 U.S. at 85-86. The Supreme Court has
prescribed a three-step analytical process for evaluating a Batson
claim. First, the opponent of the peremptory strike "must make a
prima facie showing that the prosecutor has exercised peremptory
challenges on the basis of race." Hernandez v. New York, 500 U.S.
352, 358 (1991) (plurality). Second, if a prima facie showing has been
made, "the proponent of the strike [must] come forward with a race-
neutral explanation." Purkett v. Elem, 514 U.S. 765, 767 (1995) (per
curiam). As long as the explanation is not inherently discriminatory
on its face, "the reason offered will be deemed race neutral." Her-
nandez, 500 U.S. at 360.
52                          KANDIES v. POLK
   Third, if the proponent of the strike has proffered a race-neutral
explanation, "the trial court must then decide . . . whether the oppo-
nent of the strike has proved purposeful racial discrimination." Pur-
kett, 514 U.S. at 767. Thus, "the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the
opponent of the strike." Id. at 768. The third step presents the trial
court with a "pure issue of fact." Hernandez, 500 U.S. at 364. Even
on direct review, the trial court’s findings with respect to discrimina-
tory intent are reviewed with significant deference because such find-
ings "largely will turn on evaluation of credibility" and an appellate
court "is not as well positioned as the trial court is to make credibility
determinations." Miller-El v. Cockrell, 537 U.S. 322, 339 (2003)
(internal quotation marks omitted). This approach holds true all the
more so on habeas review, where we apply the extremely deferential
standard prescribed by statute. See 28 U.S.C.A. § 2254(d). As noted
above, a state court’s conclusion with respect to whether there was
discriminatory intent in the prosecution’s exercise of peremptories is
a factual determination. In turn, in federal habeas proceedings, factual
determinations by the state court "shall be presumed to be correct,"
and the "[habeas] applicant shall have the burden of rebutting the pre-
sumption of correctness by clear and convincing evidence." 28
U.S.C.A. § 2254(e)(1); see Miller-El, 537 U.S. at 340.

   Pursuant to North Carolina law, the State must begin the voir dire
process by individually questioning twelve randomly selected mem-
bers of the prospective juror panel. See N.C. Gen. Stat. § 15A-
1214(d). If a prospective juror is excused for cause or removed
because the State exercises a peremptory strike, the clerk immediately
draws a replacement. This continues until "the prosecutor is satisfied
with the 12 in the box," at which point the prospective jurors are "ten-
dered to the defendant." Id. However, "[u]ntil the prosecutor indicates
his satisfaction, he may make a challenge for cause or exercise a
peremptory challenge to strike any juror, whether an original or
replacement juror." Id.

   In a North Carolina capital case, both the State and the defendant
are allotted 14 peremptory challenges during jury selection. See N.C.
Gen. Stat. § 15A-1217(a). Additionally, "[e]ach party is entitled to
one peremptory challenge for each alternate juror in addition to any
unused challenges." N.C. Gen. Stat. § 15A-1217(c). In selecting the
                            KANDIES v. POLK                           53
jurors who decided Kandies’ case, the prosecutor used twelve of his
fourteen allotted peremptory strikes. Eight of the twelve prospective
jurors peremptorily struck by the prosecutor were African-American.
The final racial composition of the jury included two African-
Americans. The prosecutor accepted a third African-American juror,
but Kandies used one of his own peremptory challenges to excuse that
juror. Following the selection of twelve jurors, the parties also
selected three alternate jurors. Six potential alternate jurors underwent
voir dire examination by the parties. The prosecution peremptorily
struck three prospective alternate jurors, one of whom was African-
American.

   In every instance that the State exercised a peremptory challenge
against an African-American juror, Kandies raised a Batson objection.
And, in each case, the prosecution came forward with race-neutral
reasons for exercising the peremptory challenge in question, even
though the trial court never explicitly determined whether Kandies
had established a prima facie case of discrimination during his series
of Batson motions. In essence, the trial court’s analysis proceeded
from the second Batson step. On direct review, the North Carolina
Supreme Court noted that, in such a case, it is appropriate for the trial
court to proceed "as if a prima facie case had been established" for
every vernireperson at issue. Kandies, 467 S.E.2d at 75. On habeas
review, we have taken the same approach. See Matthews v. Evatt, 105
F.3d 907, 918 (4th Cir. 1997) ("Because the prosecutor offered a race-
neutral explanation in response to Matthews’ objection, the prelimi-
nary issue of whether Matthews established a prima facie case of dis-
crimination is moot.").

   Kandies’ specific arguments in support of his Batson claim can be
divided loosely into two groups. First, he contends that the court’s
conclusion that there was no purposeful discrimination in the State’s
use of its peremptory strikes was unreasonable in light of the fact that
the State’s reasons for peremptorily striking the nine prospective
African-American jurors were equally applicable to several prospec-
tive Caucasian jurors who were accepted by the State. Second, Kan-
dies argues that the state court ignored other evidence of
discriminatory intent, including the statistical disparity between the
number of African-American jurors struck from the panel and the
number of Caucasian jurors struck and the prosecutor’s alleged per-
54                          KANDIES v. POLK
sonal history of systematically using peremptory strikes to exclude
African-American jurors.

           A. Disparate Treatment of Similarly Situated
                        Caucasian Jurors

   The State exercised peremptory challenges against nine prospective
African-American jurors. Kandies claims that six of these jurors —
Randleman, Jinwright, Rawlinson, Hines, McClure, and Oliver —
were struck despite being similarly situated to Caucasian jurors who
were accepted by the prosecution. See Bell v. Ozmint, 332 F.3d 229,
241 (4th. Cir. 2003) ("[C]omparative juror analysis clearly is a rele-
vant consideration in the Batson analysis" for determining whether
the prosecutor’s explanation was pretextual.), cert. denied, 124 S. Ct.
1155 (2004).

Jurors Randleman and Jinwright

   The prosecutor articulated two reasons for striking Juror Randle-
man. First, in answering background questions posed by a question-
naire which prospective jurors completed in advance of jury selection,
Randleman failed to disclose that she had been convicted of a crimi-
nal offense. Prior to voir dire, however, the prosecutor performed a
criminal records check that revealed Randleman "ha[d] been con-
victed of worthless checks and two speeding violations." J.A. 131.
Second, the prosecutor perceived Randleman to be "hesitant" when
asked whether she had any feelings about the death penalty. J.A. 131.

   With respect to Juror Jinwright, the State’s proffered basis for exer-
cising a peremptory challenge was Jinwright’s former employment at
a day care center where she cared for three- and four-year-old chil-
dren. Moreover, the prosecutor believed, based on her voir dire testi-
mony, that Jinwright, like Randleman, was "hesitant on the death
penalty question." Id.

   Kandies did not reply to the state’s proffered reasons for using its
peremptory strikes against Randleman and Jinwright. Thus, the trial
court denied the Batson motion, finding that "the State has enunciated
clear and logical bases and grounds for the exercise of peremptory
                            KANDIES v. POLK                           55
challenges and said grounds . . . are not for improperly racially dis-
criminatory motives." J.A. 135.

   On direct appeal to the North Carolina Supreme Court, Kandies
argued "that the prosecutor passed several similarly situated white
jurors," proving the pretextual nature of the State’s explanation for its
peremptory strikes against Randleman and Jinwright. Kandies, 467
S.E.2d at 75. The court concluded that Kandies’ pretext argument was
flawed with respect to Randleman and Jinwright because Kandies had
simply picked "‘a single factor among the several articulated by the
prosecutor . . . and match[ed] it to a passed juror who exhibited that
same factor.’" Id. at 75-76 (quoting State v. Porter, 391 S.E.2d 144,
152 (N.C. 1990)). The court explained that it had previously rejected
such an approach to determining pretext under Batson as it "‘fail[ed]
to address the factors as a totality.’" Id. at 76 (quoting Porter, 391
S.E.2d at 152).

  Kandies argues that the North Carolina Supreme Court’s decision
was unreasonable specifically because the State accepted prospective
Caucasian jurors who expressed a hesitancy on the death penalty, but
used the same factor as a basis for striking Randleman and Jinwright.

   Even if Kandies were correct that various Caucasian jurors
accepted by the State expressed virtually identical views about the
death penalty as Randleman and Jinwright, this does not a fortiori
demonstrate that Randleman and Jinwright were similarly situated
such that the State’s race-neutral reasons were necessarily pretextual.
Indeed, "Batson is not violated whenever two veniremen of different
races provide the same responses and one is excused and the other is
not." Matthews, 105 F.3d at 918. In Bell v. Ozmint, we held that a
state court decision rejecting a Batson claim was not unreasonable
where African-American and Caucasian jurors expressed similar
views of the death penalty, but the State peremptorily struck only the
African-American juror. The State offered two race-neutral reasons
for its use of the peremptory challenge: the African-American juror’s
feelings about the death penalty and "the similarity in ages between
[the juror’s] children and [the defendant]." 332 F.3d at 241. Because
the Caucasian juror did not have children of the same approximate
age, the court concluded that the jurors were not similarly situated,
despite the apparent similarity of their views on the death penalty. See
56                            KANDIES v. POLK
id. at 242; see also Matthews, 105 F.3d at 918 (finding Caucasian
jurors were not similarly situated to African-American juror who was
struck because of his views on the death penalty and his criminal
record where there was no evidence "that any white juror seated had
a criminal record.").

   Kandies’ argument fails to acknowledge that the prosecutor offered
other reasons for striking these jurors even before mentioning that
they were unsure about the death penalty. With respect to Randleman
in particular, this argument utterly ignores the obvious and concrete
distinction between her and the Caucasian jurors he claims were simi-
larly hesitant about the death penalty. Randleman’s juror information
form indicated that she had not been convicted of a crime when, in
truth, the State’s record check listed convictions for writing bad
checks and committing speeding violations. Unquestionably, a pro-
spective juror’s criminal record alone, even if there was no failure to
disclose, is race-neutral on its face. See Matthews, 105 F.3d at 917-18.
Kandies has not shown that any of the prospective Caucasian jurors
he believes held similar views on the death penalty had a criminal
record or, if so, failed to disclose it. I see no clear and convincing evi-
dence that the State struck Randleman based on race.

   Kandies counters that because the prosecutor did not introduce evi-
dence of Randleman’s criminal history, the basis articulated by the
State was not supported by the record and cannot serve as justification
for a peremptory strike. This argument, in my view, bungles Batson’s
analytical framework. It implies that the State, in coming forward
with its race-neutral justification at the second stage of Batson, bears
some evidentiary burden.4 That is not accurate. The State’s burden at
that stage is merely to articulate a facially neutral reason for having
  4
   At least, this appears to me to be the thrust of his argument: "It is . . .
specious that the prosecutor relied on the purported criminal records of
several prospective African-American jurors when nothing in the record
supported these naked assertions. Nothing in the record supported this
explanation, as the prosecutor did not introduce any evidence about these
purported records. The State should not be permitted to justify its strikes
with information not in the record, especially when a defendant does not
have access to this information." Brief of Appellant at 30 (emphasis
added).
                           KANDIES v. POLK                           57
exercised a peremptory strike. The prosecutor, in other words, simply
must come up with a reason "based on something other than the race
of the juror." Hernandez, 500 U.S. at 360. This is not a tall order,
given that "[t]he second step of this process does not demand an
explanation that is persuasive or even plausible." Purkett, 514 U.S. at
767-68. As long as the State comes up with a reason — anything
other than a mere denial of discriminatory intent — it has done all
that is required at the second stage. See id. at 769. Whether the trial
court believes the reason actually motivated the prosecutor is a ques-
tion that must be answered at the third stage of the Batson analysis,
and even then it is the opponent of the strike who shoulders the bur-
den of proof. See id. at 768. Thus, the State’s reliance on Randle-
man’s criminal history was a perfectly appropriate race-neutral reason
for exercising a peremptory challenge, and it was Kandies, not the
State, who was required to demonstrate otherwise. Kandies has not
produced any clear and convincing evidence to rebut the state court’s
factual determination in this regard.

   With respect to Jinwright, who was purportedly struck because of
her former day care employment and her feelings about the death pen-
alty, Kandies again claims that the State did not strike similarly situ-
ated Caucasian jurors. The prosecutor was concerned about the link
between a prospective juror’s employment and the Department of
Social Services, explaining that defense counsel "is aware of some of
the problems in this case involving Social Services and if we get into
that I certainly do not want a juror that was involved in a Day Care
or Social Services type work." J.A. 168. Only two of the prospective
Caucasian jurors had worked in a school-type setting with young chil-
dren — alternate jurors Arlington and Spence. In both cases, how-
ever, there were obvious reasons for the State to accept the jurors. In
Arlington’s case, her husband was a detective who had been on the
job for 30 years. That this is an attractive factor for the prosecution
— and one that makes her substantially dissimilar to Jinwright — is
confirmed by the fact that Kandies challenged Arlington for cause and
made clear that, had he not exhausted his allotment of peremptory
strikes by that point in the trial, he would have excluded her. Spence
testified that both her daughter and her parents were robbery victims,
and that in both cases, the perpetrator was never found and brought
to justice. She noted that she had been "very angry" about the crime
against her daughter, but that she "probably" could be fair to both the
58                          KANDIES v. POLK
State and the defendant in a criminal case. J.A. 680. Again, Kandies’
argument that Spence and Jinwright are so similarly situated is under-
cut by the fact that he exercised a peremptory strike against Juror
Spence.

   Kandies has not pointed to any clear and convincing evidence that
would rebut the state court’s finding that the prosecution did not
strike jurors Randleman and Jinwright with discriminatory intent.

Juror Hines

   The next of Kandies’ Batson motions covered Juror Hines. Before
exercising its peremptory challenge, the State moved to strike Juror
Hines for cause after he indicated that he was the sole support for his
family and the hardship imposed by jury service would impair his
ability to serve. After the trial court refused to strike for cause, the
State used a peremptory strike. Kandies again objected under Batson,
arguing that, although Hines stated during voir dire that he held no
strong feelings about the death penalty, he indicated he could consider
either option in accordance with the court’s instructions.

   The prosecutor offered several reasons for excusing Hines: that
Hines was worried about the loss of income that jury service would
entail; that Hines claimed "he ha[d] never thought about the death
penalty" before; that he failed to disclose on his juror questionnaire
prior convictions for driving while impaired and driving without a
valid license; and that during his voir dire testimony, he denied hav-
ing a criminal history. J.A. 605.5
  5
   At trial, Kandies responded by renewing his motion that the State be
required to share any information it gathered from any criminal record
check performed by the prosecution. Kandies pursued this issue on direct
appeal, arguing that the State was required to produce "copies of all the
criminal record checks for prospective jurors obtained by the prosecu-
tion." Kandies, 467 S.E.2d at 76. The Supreme Court of North Carolina
held that this information was not subject to disclosure under North Car-
olina law, and that Kandies had the burden of proof and "had sufficient
opportunity to produce evidence that the prospective jurors in question
did not have criminal records." Id. at 77.
                            KANDIES v. POLK                            59
   In rejecting this claim, the trial court noted two of the State’s bases
for its peremptory challenges — Hines’ concern over missing work
and his failure to disclose prior convictions — as well as the fact that
two of the eight jurors that the State had accepted up to that point in
the trial were African American. The trial court also noted that the
State had accepted a third African-American juror, but Kandies used
one of his own peremptory strikes to exclude that juror. On direct
appeal, the North Carolina Supreme Court affirmed. See Kandies, 467
S.E.2d at 76.

   Kandies now argues that the State did not strike two Caucasian
jurors who were similarly situated to Hines because, like him, they
expressed concerns about the impact of jury service on their employ-
ment. Again, this argument ignores the other race-neutral reasons
articulated by the State. Kandies does not suggest that the Caucasian
jurors who were concerned about their employment also had criminal
records. Like juror Randleman, Hines is not similarly situated for pur-
poses of a comparative juror analysis under Batson. See Ozmint, 332
F.3d at 241-42. Certainly, such evidence does not rise to the clear and
convincing level required to rebut the presumption of correctness
afforded the state court’s determination that the State had no discrimi-
natory motive in striking Hines. Moreover, for the reasons already
stated with respect to Randleman, the State’s failure to submit a copy
of Hines’s record into evidence had no bearing on whether the State
adequately discharged its obligation to articulate an explanation that
was neutral on its face.

Juror Oliver

   During the selection of alternate jurors, the State exercised a
peremptory strike of Juror Oliver, who was African-American. The
State responded to Kandies’ Batson motion by explaining that Oliver
had difficulty hearing, as evidenced by her failure to follow the
court’s instructions to refrain from watching television or radio broad-
casts about the trial. The prosecutor’s primary concern was whether
she would be able "to hear and understand me as this case goes
along." J.A. 969. Kandies countered that the State had accepted Cau-
casian jurors who had not followed the court’s preliminary instruc-
tions. The trial court rejected Kandies’ argument that the jurors were
similarly situated, finding persuasive the State’s proffered reasons:
60                          KANDIES v. POLK
"the juror’s apparent inability to hear the Court’s instructions . . . and
the juror’s obvious inability to hear the questions of the District Attor-
ney without requesting clarification on numerous occasions during the
voir dire process." J.A. 970 (emphasis added).

   The North Carolina Supreme Court rejected Kandies’ Batson claim
to the extent it was based on Oliver, specifically mentioning the trial
court’s own observation that Oliver was not able to respond to ques-
tions during voir dire without requesting clarification several times.
See Kandies, 467 S.E.2d at 76.

   Kandies argues that the State accepted a number of Caucasian
jurors who failed to strictly follow the instructions of the trial court,
which regularly admonished prospective jurors during the voir dire
process to avoid exposure to media accounts of the trial. In support
of his argument, Kandies specifies three Caucasian jurors who indi-
cated that they either read a newspaper account or listened to a televi-
sion report about the trial after the jury selection process had begun.
Kandies also claims that the prosecutor failed to thoroughly question
all of the Caucasian jurors on their level of media exposure.

   Kandies’ argument, at best, misperceives the nature of the State’s
concern, which was obviously Oliver’s hearing. Oliver’s numerous
requests for the prosecutor to repeat his questions prompted the prose-
cutor to ask Oliver if she had difficulty hearing, to which she
responded she did not hear very well and that "everybody’s not talk-
ing loud enough." J.A. 967. The trial court’s conclusion that there was
no discriminatory intent was also obviously based on Oliver’s inabil-
ity to hear; the court mentioned her apparent failure to follow instruc-
tions as a manifestation of her hearing problem. See Kandies, 467
S.E.2d at 76. Kandies has not suggested that there were non-minority
jurors who, like Oliver, could not hear or had difficulty following the
proceedings but were accepted by the State nonetheless. In fact, the
only other juror who apparently had hearing difficulty was Juror Mas-
sey, who was struck by the State because she "had trouble under-
standing" questions asked by the prosecutor during voir dire,
"continuously answered with difficulty," and because the prosecutor
could not easily understand her responses. J.A. 131.6 Accordingly,
  6
    Kandies argues that the prosecutor’s belief that Massey could not eas-
ily understand the proceedings was a sham explanation for striking her
                            KANDIES v. POLK                             61
Kandies has not pointed to any jurors similarly situated to Oliver,
except for race, who were treated differently by the State during its
exercise of peremptory strikes. Thus, he has failed to come forward
with clear and convincing evidence to rebut the state court’s finding
that there was no discriminatory intent.

Jurors McClure and Rawlinson

   The prosecutor indicated that he struck Juror McClure because,
among other things, a law enforcement officer present in the court-
room noticed him sleeping at least two times. Kandies did not refute
this assertion at trial, nor does he point to anything now that would
suggest this race-neutral reason was pretextual. With respect to Juror
Rawlinson, the prosecutor noted that she did not express during voir
dire a strong opinion with regard to the death penalty. The prosecutor
also indicated that he asked employees of the local police department
whether they had any knowledge of anyone on the jury panel from
whom the jury would be selected, and learned that neither Rawlinson
nor McClure were thought to be a good choice for a capital murder
trial jury:

     [PROSECUTOR]: . . . . I discussed the jury panel with the
     High Point Police Department, and they indicated Mr.
     McClure and Mrs. Rawlinson would not be good jurors for
     this type of case.

     THE COURT: Do you want to elaborate on that, please?

and was not supported by the record because "Massey only asked the
prosecutor to repeat one question, and the prosecutor never asked her to
repeat any of her answers." Brief of Appellant at 29. This observation
falls dramatically short of the clear and convincing evidence Kandies
must produce to overcome the presumptive correctness of the state
court’s factual determination that there was no discriminatory intent. See
28 U.S.C.A. § 2254(e)(1). Here, in particular, we should be wary of sub-
stituting our judgment, based on the bare transcript, for that of the state
trial court, who was present during the proceedings and observed this
prospective juror first-hand. See Evans v. Smith, 220 F.3d 306, 316 (4th
Cir. 2000).
62                         KANDIES v. POLK
     [PROSECUTOR]: Your Honor, I asked most everybody and
     basically indicated anyone that they had any contact with
     prior to the trial. Primarily, the reason was that they were
     weak on the death penalty question.

J.A. 167-68. Kandies did not object to the sufficiency of this particu-
lar reason offered by the State for using peremptory strikes against
McClure or Rawlinson, nor did he request any further explanation
from the State with respect to this basis.

   The trial court concluded that the bases offered by the prosecutor
were valid and found that these prospective jurors were not struck by
the State on the basis of race. On appeal, the North Carolina Supreme
Court held that the reasons offered by the State were valid and that
the trial court did not err in concluding that the exercise of peremp-
tory challenges against McClure and Rawlinson was not "motivated
by impermissible racial discrimination." Kandies, 467 S.E.2d at 76.

   Because the prosecutor used their responses to questions about the
death penalty as one of the bases for striking them, Kandies argues
that McClure and Rawlinson also were subject to disparate treatment,
as evidenced by the State’s acceptance of Caucasian jurors who were
similarly situated because of weak or ambivalent views on capital
punishment.

   With respect to McClure, Kandies has not pointed to anything in
the record to suggest that there were Caucasian jurors that the State
accepted even though they were nodding off in court or unable to pay
attention. Once again, Kandies has simply ignored a race-neutral rea-
son that clearly distinguishes the stricken juror from others accepted
by the State.

  With respect to Rawlinson, there was no other prospective juror,
except for McClure, who the State struck based on the juror’s prior
contact with employees of the local police department and the
employees’ impressions of the juror’s feelings about capital punish-
ment. Again, this undercuts Kandies’ "similarly situated" argument.

  Kandies counters that the prosecutor’s purported reliance on the
opinion of local police personnel, based on prior contact, that Rawlin-
                            KANDIES v. POLK                           63
son and McClure were weak on capital punishment was insufficient
to provide a race-neutral basis for striking Rawlinson and McClure.
Kandies argues that this explanation was "little more than a hunch,
and the very type of explanation that is inherently suspect." Brief of
Appellant at 29 (emphasis added). Although this argument lacks pre-
cision, it appears clearly to be directed at step two of the Batson anal-
ysis, which is satisfied as long as the State does not offer a reason in
which "discriminatory intent is inherent." Hernandez, 500 U.S. at 360
(emphasis added). Indeed, Kandies argues that the basis articulated by
the prosecutor was "legally insufficient to survive a Batson chal-
lenge." Brief of Appellant at 29 (emphasis added). At step two, the
trial court examines the prosecutor’s explanation to determine
whether, "as a matter of law," it is a valid race-neutral reason on its
face. Id. at 359.

   Specifically, then, Kandies argues that reliance on feedback from
the local police department cannot constitute a race-neutral basis
because it is nothing more than an undefined "feeling" about a pro-
spective juror. Brief of Appellant at 29. Cf. United States v. Horsley,
864 F.2d 1543, 1546 (11th Cir. 1989) (per curiam) (rejecting prosecu-
tor’s explanation that he "just [had] a feeling about him"). But see
United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir. 1993) (per
curiam) (stating that a prosecutor’s intuition, standing alone, is a suf-
ficient race-neutral reason for purposes of Batson).

   Batson instructs that the State must rebut a prima facie case by
articulating "a clear and reasonably specific explanation of his legiti-
mate reasons for exercising the challenges." Batson, 476 U.S. at 98
n.20 (internal quotation marks omitted). Subsequent decisions clari-
fied the limited nature of this requirement, which was imposed to pre-
vent a prosecutor from "satisfy[ing] his burden of production by
merely denying that he had a discriminatory motive or by merely
affirming his good faith." Purkett, 514 U.S. at 769. Certainly, the
explanation given by the prosecutor here is sufficient to satisfy Bat-
son’s modest race-neutral requirement. It is specific and reasonably
related to the case; it need not be "persuasive, or even plausible." Id.
at 768. On its face, the proffered explanation is "based on something
other than the race" of the prospective jurors, which is all that is
required. Hernandez, 500 U.S. at 360. I note my concern, however,
about this type of reason as it is virtually impossible for the defense
64                          KANDIES v. POLK
to effectively challenge. Nevertheless, under the circumstances of this
case, I cannot say that the state court’s decision was contrary to, or
an unreasonable application of, Batson or its progeny.

            B. Other Evidence of Discriminatory Intent

   Kandies’ next argument is that the trial court ignored statistically
significant evidence that supported a finding of discrimination. Spe-
cifically, he contends that

     [t]he prosecutor exercised fifteen peremptory challenges,
     nine of which were directed against African Americans.
     When Kandies objected to each of them, the trial court did
     not determine if a prima facie case had been presented.
     Rather, the prosecutor simply volunteered explanations for
     these challenges. The trial court then decided if these expla-
     nations were race-neutral. By proceeding in this fashion, the
     trial court never judged the strength of Kandies’ prima facie
     case. In other words, the trial court neither considered the
     number of strikes the prosecutor exercised against African
     Americans nor evaluated the dramatic difference in the per-
     centages of strikes against African Americans as opposed to
     whites. Because it never determined the strength of the
     prima facie case, the trial court could not factor it into the
     ultimate determination . . . contrary to Batson.

Brief of Appellant at 22-23. Kandies supports his claim of statistical
disparity by explaining that the prosecutor used peremptories on eight
of eleven otherwise qualified African-American jurors (73%), but that
he used peremptory challenges on only four of twenty-six (15%) pro-
spective Caucasian jurors. Kandies contends that the trial court was
required to, but did not, "weigh the asserted [race-neutral] justifica-
tion against the strength of [his] prima facie case under the totality of
the circumstances." United States v. Hill, 146 F.3d 337, 342 (6th Cir.
1998).

  Kandies bases this argument primarily on language in Miller-El
suggesting that the ultimate determination of whether, "despite the
neutral explanation of the prosecution, the peremptory strikes . . .
were race based" should include "the facts and circumstances that
                            KANDIES v. POLK                            65
were adduced in support of the prima facie case." Miller-El, 537 U.S.
at 340 (emphasis added). The Court concluded that the district court
failed to consider fully petitioner’s prima facie evidence that prosecu-
tors struck "91% of the eligible African-American venire members"
— which was alone enough to create a sufficiently debatable Batson
issue that warranted a certificate of appealability under § 2253. Id. at
342.

   To me, it appears that Kandies’ argument encompasses two dis-
crete contentions based on these snippets from Miller-El. Because
Kandies never presented any statistical evidence to the state trial court
in support of his Batson challenges (so far as I can tell), Kandies’
argument would mean, first, that a state trial court could not properly
skip the first step in Batson, requiring a determination of whether a
prima facie case had been made. It bears repeating that it was per-
fectly acceptable under the circumstances for the trial court to bypass
any specific analysis of whether Kandies had establshed a prima facie
case. As the Supreme Court has explained, and this court has reiter-
ated, "[o]nce a prosecutor has offered a race-neutral explanation for
the peremptory challenges and the trial court has ruled on the ultimate
question of intentional discrimination, the preliminary issue of
whether the defendant had made a prima facie showing becomes
moot." Hernandez, 500 U.S. at 359; see Bell, 332 F.3d at 240 n.5.
Moreover, Kandies, who would have benefitted from not having to
clear the first Batson hurdle, never insisted at trial that the court make
a prima facie determination rather than proceeding as if a prima facie
showing had been made. For him to suggest now that the trial court
was derelict for not having done so strikes me as disingenuous.

   Kandies’ argument would also alleviate his burden of proof to a
certain extent. Miller-El, however, does not alter the three-step Batson
analysis or its allocation of the burden of proof to the opponent of the
peremptory strike. Rather, it confirms that statistical evidence of a
discriminatory pattern of peremptory strikes is relevant to a prima
facie case. See Batson, 476 U.S. at 96-97; see also Howard v. Moore,
131 F.3d 399, 407 (4th Cir. 1997) (en banc). Although Kandies was
not actually required to make a prima facie case here, neither was he
prohibited from adducing evidence that bolstered his allegations that
the State was striking African-Americans because of their race. Tech-
nically, what he is suggesting is that the trial court take into consider-
66                          KANDIES v. POLK
ation evidence that he could have used, but did not, to support a prima
facie case. I am not aware of such a requirement in Miller-El or any
other case. In fact, the very language Kandies relies on indicates that
the trial court should consider facts "adduced" in support of a prima
facie case.

   Moreover, although the trial court was not presented with statistical
evidence, the record reveals that the trial court did consider, following
each round of peremptory strikes, the number of strikes exercised
against African-American jurors vis-a-vis Caucasian jurors. For
example, after the first round of peremptory strikes by the State, the
trial court prefaced its ruling on Kandies’ Batson motion by noting
that the State "exercised six peremptory challenges, . . . three [of
which] . . . have been exercised as to the members of the black race."
J.A. 135. After the second round of strikes, the trial court prefaced its
ruling as follows: "[F]ollowing the exercise of the State’s first [six]
peremptory challenges . . . six replacement jurors [were] called, three
by their questionnaires indicated that they were members of the Black
race. . . . The District Attorney has passed one of the prospective
jurors called as a replacement juror who is a member of a minority
race and had peremptorily excused [the other] two [African-American
jurors]." J.A. 168A. In both cases, as discussed in detail above, the
court went on to find that the State had articulated a valid basis for
striking each of the African-American jurors and, ultimately, that the
peremptory strikes had not been exercised on the basis of race.

  In sum, this does not constitute the clear and convincing evidence
needed to rebut the presumption of correctness enjoyed by the state
court’s finding that there was no discrimination.

   Finally, Kandies contends that the trial court ignored the prosecu-
tor’s alleged personal history of purposely excluding prospective
minority jurors on the basis of race. This "evidence" was nothing
more than a conclusory statement by defense counsel that he had
never in the past seen the prosecutor leave a minority panel member
on the jury. He cites Miller-El in support, but a bare, unsubstantiated
statement by defense counsel is nothing like the extensive testimony
in Miller-El about the history of discrimination and the official policy
adopted by the district attorney’s office to exclude minorities from
jury duty. See Miller-El, 537 U.S. at 334-35. In short, defense coun-
                            KANDIES v. POLK                           67
sel’s comment is insufficient to rebut the trial court’s factual determi-
nation by clear and convincing evidence.

                            C. Conclusion

   In sum, I cannot say that the state court’s decision rejecting Kan-
dies’ Batson claim was contrary to, or involved an unreasonable
application of, clearly established federal law, nor can I say that this
decision was based upon an unreasonable factual determination.

                                   V.

   For the foregoing reasons, I concur in the result reached by Judge
Gregory on both the ineffective assistance claim and the Batson
claim.
