                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 12-4


JOHN EDWARD BURR,

                Petitioner - Appellee,

           v.

KENNETH E. LASSITER, Warden, Central Prison, Raleigh, North
Carolina,

                Respondent - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.  William L. Osteen,
Jr., District Judge. (1:01-cv-00393-WO-JEP)


Argued:   December 4, 2012                 Decided:   March 11, 2013


Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.


Reversed by unpublished per curiam opinion.


ARGUED: Leonard Michael Dodd, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellant.       James P.
Cooney, III, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Charlotte,
North Carolina, for Appellee.    ON BRIEF: Roy Cooper, Attorney
General of North Carolina, Raleigh, North Carolina, for
Appellant.   Ernest Lee Conner, Jr., Greenville, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      John Edward Burr (“Burr”) was convicted by a North Carolina

jury of the first-degree murder and felony child abuse of four-

month-old Tarissa Sue (“Susie”) O’Daniel, and of assault on a

female, and sentenced to death plus thirty days imprisonment.

The North Carolina Supreme Court affirmed.                  See State v. Burr,

461 S.E.2d 602 (N.C. 1995).             After unsuccessfully seeking state

post-conviction relief, Burr petitioned for habeas relief under

28 U.S.C. § 2254, alleging that his trial attorneys rendered

ineffective       assistance       of     counsel       under    Strickland       v.

Washington, 466 U.S. 668 (1984), because they failed to develop

and present evidence that Susie died from accidental injuries

she sustained when her 8-year-old brother tripped and fell while

carrying her.      The district court granted relief.                   Because the

district court’s decision granting Burr relief is contrary to

the   deference     that     federal     courts    must   afford    state     court

decisions adjudicating the merits of such constitutional claims,

we reverse.

                                         I.

                                         A.

      On August 25, 1991, at 2:55 a.m., Susie was admitted to the

Alamance County Hospital in North Carolina with a closed head

injury,   fractures     of      both    thighs    and   both    upper    arms,   and

widespread    bruises      to   her    head,   face,    neck,   arms,    legs,   and

                                          2
torso.    Shortly thereafter she was transferred by ambulance to

North    Carolina   Memorial    Hospital     in   Chapel   Hill.        Her   head

injury proved fatal, and she was pronounced dead on August 27,

1991, at approximately 6:30 p.m.

     The state’s evidence regarding the events leading up to

Susie’s    hospitalization,      including    the    testimony     of    Susie’s

mother,    Lisa   Bridges,     was   summarized     by   the   North    Carolina

Supreme Court as follows:

     [Susie] was born on 1 April 1991 to Lisa Porter
     Bridges and Bridges’ husband at that time, John Wesley
     O’Daniel.   When Susie was a few weeks old, Bridges
     began having sexual relations with defendant, who was
     separated from his wife at the time.    When Susie was
     six weeks old, John O’Daniel discovered his wife was
     having an affair with defendant and told Bridges that
     he wanted a divorce.

           Subsequently, in June 1991, Bridges and her four
     children moved into a trailer located next to a
     trailer owned by Bridges’ brother, Donald Wade.   Near
     the end of June, defendant moved into the trailer with
     Bridges and her four children. Bridges testified that
     when defendant first moved in with her, “[h]e seemed
     like a pretty good person,” but that after a few
     weeks, he became physically abusive toward her,
     bending    her  hands   back  in  a   painful  manner,
     threatening her with a gun, bruising her body, and
     choking her. Bridges testified that she remained with
     defendant after this abuse because she “was scared of
     him.”

          On 24 August 1991, defendant and Bridges argued
     most of the day over defendant spending the previous
     night at his wife’s house and his refusing to take
     Bridges to her parents’ house.   At approximately 6:00
     p.m., Bridges’ son Scott tripped over a cord while he
     was carrying Susie.   Bridges testified, however, that
     she examined Susie after the fall and did not find any
     marks on her body except for some redness on her arm,

                                       3
which disappeared.    Bridges further testified that
later that evening, while she was sitting on the
trailer steps with Susie and defendant was mowing the
yard, defendant hit Bridges in her lower back with his
fist.

     After defendant hit her, Bridges went over to her
brother’s trailer, where defendant eventually joined
her.   Defendant and Bridges began arguing again, and
Bridges left the trailer with the infant child.
Bridges testified that defendant followed her and
shoved her in the back while she was holding the
child. Bridges also told defendant that he was going
to make her hurt the child, but Bridges testified that
“he just kept running his mouth” and followed her
inside her trailer, still arguing.

     Once inside the trailer, Bridges placed Susie in
her infant swing located in the living room. Bridges
testified that while she was still holding onto the
swing, defendant pushed her down onto the couch,
almost causing her to knock over the swing.      When
Bridges attempted to get up from the couch, defendant
pushed her down again and told her not to leave the
couch.   Bridges sat on the couch a few minutes and
then stood up and walked down the hallway into her
bedroom.   Bridges testified that defendant followed
her to the bedroom and pushed her onto the waterbed,
causing the waterbed to break. Bridges testified that
after the waterbed broke, defendant “started talking
like everything was fine.” Bridges and defendant then
began repairing the waterbed.

     Bridges testified that as they were repairing the
waterbed, Susie began to cry and that defendant told
Bridges, “go on up there and get her, that’s all in
the hell she wants anyway, she is so damned spoiled.”
Bridges took the child out of her swing and brought
her back to the bedroom, where she laid her on the
waterbed.   After defendant finished fixing the bed,
Bridges helped her two sons, Scott and Tony, prepare
for bed, while her youngest son, John, Jr., remained
at Donald Wade’s trailer.   Bridges testified that she
also “got [Susie] to sleep” and placed her in her
“baby bed” located in Bridges’ bedroom.        Bridges
testified that when she placed Susie in her bed, she
appeared to be physically fine and that she did not
have any marks on her. Bridges then went back to the
                          4
      Wades’ trailer to wash the dishes.    Bridges                  testified
      that when she left her trailer, Scott and                      Tony were
      ready for bed, Susie was asleep in her                          bed, and
      defendant was working on a plug in the living                  room.

           Bridges’ son Scott testified that after his
      mother left to go to the Wades’ trailer, and after he
      went to bed, he was awakened by “hammer noises.” When
      Scott awoke, he heard Susie crying. Scott testified
      that he then heard defendant “mumbling” and that,
      after he heard defendant mumbling, Susie stopped
      crying.

           After approximately forty-five minutes, Bridges
      returned to her trailer and found Susie in her swing
      in the living room. Bridges testified that defendant
      was pacing the floor at this time and that he told her
      to look at the bruises on Susie.        Defendant told
      Bridges that he had moved the child to the swing after
      she woke up and that some of the marks were grease.
      Bridges attempted to wash these marks off but
      discovered that they were not grease.

             Bridges testified that she observed bruises in
      the   child’s ears, under her neck, on her arms, and on
      her   legs. Bridges further testified that her eyes did
      not   “look right,” that she did not act right, and that
      she   did not smile or respond to anything.

Burr, 461 S.E.2d at 607-08.

      Burr       testified    in   his     defense.       He    confirmed    Bridges’

testimony that Scott had tripped and fallen on a gravel roadway

while carrying Susie earlier that day.                     He testified that he

also examined Susie after the fall and that she was fine.                          All

of   the    witnesses      confirmed     that     Susie   had   no   cuts,   scrapes,

bruises     or    gravel     prints   on    her   skin    after   the   fall.    Burr,

however, presented a somewhat different version of the events

leading up to Susie’s hospitalization, as follows:



                                            5
Defendant testified that on the evening of 24 August
1991, he mowed the yard at Bridges’ trailer until
dark.   During this time, Bridges was sitting on the
back steps with Susie. Defendant denied having a
conversation with Bridges or striking Bridges while he
was mowing. Defendant testified that when he finished
mowing the yard, he joined Bridges and her children
and Donald Wades’ daughters, Misty and Christy, at the
Wades’    trailer    and   watched    television    for
approximately    thirty   to    thirty-five    minutes.
Defendant and Bridges were arguing at this time about
Bridges going to her parents’ house.          Defendant
testified that Bridges finally “got mad enough [and]
went out the door” to her trailer, taking Susie with
her.    Defendant testified that he remained in the
Wades’   trailer   with  Bridges’   sons   and   Wades’
daughters.

     Defendant testified that after a few minutes
passed, he told Scott to tell Bridges that if she
wanted to spend the night with her parents, he would
take   her  to   their  house.     Scott  left,   and,
approximately ten minutes later, Bridges returned to
the Wades’ trailer without Susie. Defendant testified
that he told Bridges that he would take her to her
parents’ house to spend the night. Approximately five
minutes later, defendant and Bridges left the Wades’
trailer and returned to Bridges’ trailer.    Defendant
testified that he pushed her in a playful manner on
the way to her trailer.

     Defendant further testified that once they were
in Bridges’ trailer, he and Bridges went back to the
bedroom where the waterbed was located.      Defendant
testified that at this time, Susie was in her crib in
this bedroom. Defendant pushed Bridges onto the
waterbed “to have sex,” and when he fell on top of
her, the bed broke.       Defendant and Bridges then
attempted to repair the bed. Defendant testified that
after they drained the water from the bed and removed
the mattress, Bridges went to the Wades’ trailer to
wash dishes, and he began drilling on the bed. After
he started drilling, defendant looked into Susie’s
crib to see if he had woken her up, and he noticed
that her eyes were open. Defendant testified that he
stopped drilling, picked up the child, took her into
the living room, and put her in the swing, propping up

                          6
     her bottle with a blanket. Defendant wound the swing
     and pushed it.

          Defendant testified that when Bridges returned to
     her trailer, she helped him put the remaining parts of
     the bed together.   During this time, defendant walked
     to the kitchen, and he noticed that the swing had
     stopped and that Susie was holding the blanket with
     her head over to the side. Defendant returned to the
     bedroom.    Defendant testified that after he and
     Bridges finished repairing the bed, he took the child
     out of the swing and brought her back to her crib. As
     defendant was putting the child down in the crib, he
     noticed her diaper was wet, and he told Bridges to
     change the diaper.   Defendant testified that when he
     picked up the child’s legs, her eyes started rolling
     from one side to the other and that Bridges told
     defendant that the child was having a seizure.
     Bridges told defendant that one of her sons was born
     with seizures and that she knew what to do. Defendant
     testified that at this time, Bridges shook the child
     and her eyes stopped rolling. When asked how Bridges
     shook the child, defendant responded, “[I]t wasn’t
     real hard or nothing.”   Defendant testified on cross-
     examination that at this time, he and Bridges took the
     child into the living room and kitchen where they had
     a lamp and that he noticed bruises on the child.

          Defendant testified that . . . he told [Bridges]
     that some of the marks on the child could be grease.
     They wiped the child with a cloth, and some of the
     marks came off. . . . Defendant denied that the child
     cried while he was alone with her that night, and he
     denied that he tried to settle her down or that he
     beat her.

Id. at 609-10.

     Burr   drove      Bridges    and   Susie   to     the   Alamance   County

Hospital.   While there is some dispute between them as to the

events   that    had   occurred   up    until   this   point,   there   is   no

dispute about Susie’s medical condition upon her arrival at the

hospital.       It was grave.       Bridges told Dr. Willcockson, the


                                        7
examining     physician,   that   her   8-year-old   son   Scott   had

accidentally fallen while holding Susie the previous day.          But

it was apparent to Dr. Willcockson that Susie was a victim of

child abuse.

     Dr. Willcockson examined the child and observed that
     she was unconscious and “poorly responsive.”        The
     child’s eyes were wandering but did not “have any
     particular following,” and her right eye deviated to
     the right.    Dr. Willcockson observed that the child
     made no oral sounds and that her movements appeared
     lethargic.   The child had occasional twitching of the
     eyes, face, and arms, which appeared to be seizures
     according to Dr. Willcockson. The child’s respiratory
     rate was fast, and she had multiple bruises and
     swellings all over her head, scalp, ears, face, neck,
     arms, legs, and main portion of her trunk.     Further,
     the soft spot on the child’s head where the bones were
     forming was bulging, a symptom which Dr. Willcockson
     testified indicates swelling in the head.           Dr.
     Willcockson also testified that Susie had a “grating
     feeling” in both arms and legs which meant the bones
     were grating upon each other and which indicates bone
     fractures.    The X rays revealed that both of the
     child’s arms were broken, as well as both of her thigh
     bones.   The X rays further showed that the child had
     suffered some posterior rib fractures.

          Dr. Willcockson testified that based on the
     multiplicity of trauma, Bridges’ story of another
     child falling with Susie did not account for the
     injuries, and he immediately asked Bridges if Susie
     had been abused, to which Bridges responded in the
     negative.   Dr. Willcockson testified that he “felt
     that there was such a high suspicion of abuse in the
     matter” that he contacted the sheriff’s department and
     social services.    Dr. Willcockson further testified
     that based on the bruising around the head, the
     seizures, and the bulging of the soft spot, he formed
     the opinion that the child had suffered some form of
     “closed head injury.”

Id. at 608.



                                   8
     Due to the severity of her injuries, Susie was transferred

to North Carolina Memorial Hospital at 5:15 a.m., where she was

examined     by     Dr.     Azizkhan,      chief      of   pediatric     surgery    and

associate    professor        of    surgery      at    the    University    of     North

Carolina Medical School.                 Dr. Azizkhan also rejected the fall

with Scott as a possible cause of Susie’s injuries.

     Dr. Azizkhan testified that Susie had bruising of the
     neck, particularly on the left side of the neck and a
     two-centimeter-by-two-centimeter area underneath the
     mastoid and the mandibular portion of her neck.    Dr.
     Azizkhan observed bruising on the right side of the
     face that extended onto the ear, circumferential
     bruising of the right arm, and bruising on the back.
     Dr. Azizkhan testified that the child’s blood pressure
     “was very low for a baby [her] age” and that she had
     lost “half of her blood volume” from internal
     bleeding.

          Dr. Azizkhan further testified that the bones of
     a child Susie’s age “are quite malleable and soft” and
     that “when you see fractures that are of this
     magnitude in a baby, you know that the amount of force
     that’s been delivered is very significant, much, much
     greater than from a simple fall.”        Dr. Azizkhan
     testified that to inflict the injuries to the child’s
     legs “would require either a severe direct blow or
     some kind of a snapping activity” and that the
     fractures to the child’s arms “could be from intense
     grabbing of the arm and torquing and pulling the
     child’s arms backwards.”   In Dr. Azizkhan’s opinion,
     Susie’s   injuries   were   “inflicted”   instead   of
     “accidental.”

Id. at 608-09.            Dr. David Merten, professor of radiology in

pediatrics     at     the     University        of    North   Carolina     School    of

Medicine and        chief    of    the    section     of   pediatric   radiology     at




                                            9
Memorial Hospital, studied Susie’s X-rays and also testified at

trial.

     Dr. Merten testified that these X rays revealed
     fractures in both thigh bones with evidence of early
     healing. In Dr. Merten’s opinion, these leg fractures
     were eight to nine days old. The X rays also revealed
     fractures on or near both shoulders.   These fractures
     did not show any signs of healing, and, in Dr.
     Merten’s opinion, they occurred five days later than
     the leg fractures.     Dr. Merten testified that the
     fractures in the legs “were produced simply by bending
     the knee with violence, significance [sic] force,
     forward, and hyperextending [the knees]” and that the
     shoulder fractures were “inflicted and incurred” by
     “taking the arms and bending them back.”     Regarding
     the injuries to the head, Dr. Merten testified that
     the child had a depressed skull fracture where the
     skull was actually broken and that the child had
     suffered injury to the brain underneath this fracture.
     Dr. Merten testified that this head injury was “a very
     unusual fracture in a very unusual place” and that “it
     would take a relatively confined direct blow to that
     area to produce this type of fracture.”     Dr. Merten
     further testified that this head injury occurred
     within hours before her admission to the hospital in
     Chapel Hill.

Id. at 609.   Dr. Michael Byron Tennison, a child neurologist at

Memorial Hospital, testified at trial regarding Susie’s CT scan.

     Dr. Tennison testified that this scan showed not only
     a depressed skull fracture, but also “multifocal
     intercranial injuries” and bleeding behind both eyes.
     Dr. Tennison testified that bleeding behind both eyes
     is “highly suggestive of a shaken baby syndrome,”
     which he defined as a “specific kind of injury where
     the baby has a whiplash kind of injury from being
     shaken back and forth.”         Dr. Tennison further
     testified that, based on the nature of the skull
     fracture, the child suffered “quite a force ... by
     some blunt object” to the side of the head and that it
     would have taken a great deal of force to cause this
     fracture.


                               10
Id.

       Despite their efforts, the trauma team at Memorial Hospital

was unable to reduce the swelling and pressure in Susie’s brain.

Dr. Tennison testified that Susie died as a result of “multiple

trauma to her head that resulted in contusions of the brain and

eventually brain swelling and herniation and brain death.”             Id.

(internal quotation marks omitted).

       Dr. Karen Chancellor, a pathologist at Memorial Hospital,

performed Susie’s autopsy.

       Dr. Chancellor observed multiple bruises on the
       child’s neck that were consistent with marks caused by
       a hand and bruises on the cheek that were consistent
       with marks caused by fingers.   Dr. Chancellor further
       observed round bruises on the upper chest area and a
       round bruise on the back, which bruises, in her
       opinion, were caused by a blunt object.            Dr.
       Chancellor also observed bruises on the back of the
       head.

Id.     The Report of Autopsy included pathological diagnoses of

blunt force trauma to the head, blunt force trauma to the neck

and chest with bruising of the neck and chest, and blunt force

trauma to all four extremities.

                                     B.

       In September 1991, Burr was indicted for Susie’s murder and

he    was   appointed   trial   counsel.   In   mid-December   1992,   with

trial rapidly approaching, Burr asked the court to appoint new

counsel.      The court obliged.      The trial was initially set for

January 25, 1993, but trial counsel requested and received a

                                     11
continuance to March 1, 1993.        Counsel sought an additional one-

month continuance on the eve of trial, from both the trial court

and the North Carolina Supreme Court, based in part upon their

desire to spend additional time evaluating the medical evidence

and the need for expert assistance.          The requests were denied.

     Prior   to   the   start   of   the   guilt   phase,   however,      trial

counsel   scheduled     an   in-person    consultation    with   Dr.   Desmond

Runyan, a physician at Memorial Hospital and Director of the

Child   Medical   Evaluation     Program    at   the   University    of   North

Carolina Children’s Hospital in Chapel Hill.                Dr. Runyan had

been called in to consult on Susie’s case at the time of her

injuries and death but did not testify at trial.                    The record

reflects that Dr. Runyan provided the following information to

the North Carolina Department of Social Services (“DSS”):

     [B]oth [of Susie’s] arms were broken cleanly through
     the bone just below the shoulder.       Both legs were
     broken cleanly through just below the hip. There was
     no evidence of twisting – no spiral fracture of any
     bone.   To break the bones in the manner they were
     broken would take a hard blow. There is a fracture of
     the skull that probably occurred on Saturday night.
     It is just above the right ear on the right temple.

          The fractures in the arms [and] legs probably
     occurred   seven   to    ten   days   prior   to   her
     hospitalization on Sunday morning.   All of the breaks
     have begun calcification.     [T]his begins to occur
     about seven days after the break. [T]he calcification
     is in different stages, so they would begin to heal,
     and from her own movement or from being picked up, the
     breaks would be reinjured. [Susie] would have been in
     extreme pain. She would have been crying, not eating,


                                     12
     and not wanting to be held.          The family’s account of
     her behavior does not fit.

J.A. 1436.      Dr. Runyan also commented on the issue of whether

Susie’s injuries could have occurred when Scott fell with her:

     [Dr. Runyan] stated that [Susie] would have to be
     dropped from about 8 feet 6 inches or more to cause
     the amount of brain damage and injury th[e] child
     suffered.   An 8 [year] old is not strong enough to
     cause any of these injuries.      The fall with Scott
     probably would have hurt the child if she hit the
     ground, but it would be minor injuries.       For the
     breaks in the arms and legs, it would take adult
     strength blows, not a child.         [T]here are two
     occaisions [sic] of injury; 7-10 days prior to
     hospitalization and Saturday night.

J.A. 1436.

     Given the extent and nature of Susie’s injuries, counsel

was clearly presented with a difficult case.             However, there

were no eyewitnesses who could explain Susie’s prior abuse or

her acute injuries.       At trial, trial counsel conceded that Susie

was a battered child, with preexisting fractures, and conceded

that her fatal injuries were the result of an acute episode of

child abuse occurring on August 24.        Trial counsel also conceded

that Scott’s fall with Susie could not have caused the extensive

injuries     documented   by   the   treating   physicians   and   medical

examiner.     Trial counsel argued, however, that the state could

not prove beyond a reasonable doubt that Burr -- who was only

sporadically in the home and not a primary caretaker -- was

Susie’s abuser either prior to or on the night in question.



                                     13
       In    support       of    this       strategy,      trial     counsel       elicited

testimony       from    Dr.     Chancellor      that    one      quick,    hard    blow    to

Susie’s head by a fist could have caused the fatal injury, and

presented       evidence      and   argument       that    there    were     others      with

motive      and     opportunity        to    inflict       the    fatal     wound.         In

particular, counsel pointed the finger at Bridges, who had been

angry and arguing with Burr all day and who had opportunities to

abuse Susie.           Counsel pointed out that it was not credible to

believe that Bridges, who was Susie’s primary caretaker, had

failed to realize that Susie had preexisting fractures or see

the    older,      brown   bruises      that    were    present      from    the    earlier

injuries.         Counsel also pointed out Bridges’ admission that,

before she and Burr took Susie to the emergency room, Bridges

took the time to instruct her three minor children about what

they    should      say    if    the    authorities        came    to     question      them.

According to Bridges’ testimony, she “told the boys that as bad

as their sister looked that if anybody came by and asked them

did I abuse them or beat on them, you tell them that I whip you

in the right way.”              J.A. 2054.         When asked why she had taken

this step to warn her children, Bridges responded that it was

“[b]ecause Susie looked that bad.”                        J.A. 2054.        Counsel also

pointed      out     that,      while       Bridges     initially       denied     to     the

authorities that Burr was abusive to her, and Bridges and Burr

both related only the fall with Scott as a possible cause of

                                              14
Susie’s injuries, Bridges changed her story and began to direct

suspicion      towards         Burr       once        the    treating        physicians        and

authorities     unanimously           rejected         the    possibility         that    Susie’s

injuries could have occurred from the fall.

      Trial counsel also presented the testimony of Colene Faith

Flores.      Flores claimed that she saw Bridges at a friend’s house

with a baby in August 1991.                       Flores testified that after the

baby had been crying constantly for approximately thirty-five

minutes, “she . . . observed Bridges walk over to the baby,” who

had   been    propped         on    the     couch,      “and       ‘smack’      her,      stating,

‘you’re driving me crazy.’”                      Burr, 461 S.E.2d at 611.                   Flores

testified     that “the            baby    fell off         the    couch.”        Id. 1      Trial

counsel      also      impeached            Bridges         “regarding          the     lack    of

cleanliness     of     Bridges’           home    and       her    children,      the     truancy

problem   with      her       children,       the      fact       that    DSS     has     received

[prior] allegations of neglect against Bridges concerning two of

her   sons,      and      a        social     worker’s            opinion       that      Bridges’

psychiatric      history           and     relationship            with     men       suggest[ed]

instability.”          Id. at 618 (alteration and internal quotation


      1
       The state called Flores’ ex-boyfriend, James Whitlow, to
testify on rebuttal. “Whitlow testified that he was with Flores
at her friend’s house and that at no time did he observe anyone
slap the baby off the couch. Whitlow also testified that he had
discovered Flores lying to him previously.” Burr, 461 S.E.2d at
611.



                                                 15
marks    omitted).       There      was   evidence       that   Bridges     had   been

hospitalized       and    received        medication        and       treatment     for

depression not long before she became pregnant with Susie.

     Despite trial counsel’s efforts, the jury convicted Burr of

first    degree    murder,     felony     child    abuse,       and    assault    on   a

female.        Upon the jury’s recommendation, the court sentenced

Burr to death for the murder, to thirty days imprisonment for

the assault on a female conviction, and arrested judgment on the

felony child abuse conviction.

     With the assistance of new counsel, Burr filed a direct

appeal    to    the    North   Carolina        Supreme    Court.        Among     other

arguments, Burr contended “that the trial court erred by failing

to grant his motion for a continuance, thereby violating his

constitutional        rights   to    confrontation        and   to    the   effective

assistance of counsel.”             Id. at 619.      In rejecting this claim,

the court found as follows:

     [D]efense counsel had access to the medical evidence
     containing   the  necessary   evidence   they    required
     regarding the need for an expert for two months prior
     to trial, and having observed the evidence and medical
     testimony   at   trial,   defendant    has   had    ample
     opportunity to show how his case would have been
     better prepared with regard to this evidence had the
     continuance been granted, or to show that he was
     materially prejudiced. He has failed to do so.

Id. at 620.        The Supreme Court denied certiorari.                  See Burr v.

North Carolina, 517 U.S. 1123 (1996).




                                          16
                                                   C.

       On September 27, 1996, Burr’s state post-conviction counsel

filed a Motion for Appropriate Relief (“MAR”) in state court,

which was followed by several amendments.                                 Burr claimed, inter

alia,    that    his          trial      counsel    were       constitutionally           deficient

under Strickland because they failed to adequately investigate

the medical evidence in the case.                             More particularly, however,

Burr    asserted          that      trial    counsel          should      have     developed     and

presented       to    the       jury      expert    testimony          that      Susie    may   have

suffered        from          an        undiagnosed        condition          of    Osteogenesis

Imperfecta,          or       “brittle      bone    disease,”         (the    “OI”       evidence),

which could explain her prior fractures, and/or that her fatal

injuries occurred when her 8-year-old brother Scott tripped and

fell while carrying her that day (the “short-fall” evidence).

In support of this theory of accidental injury and death, Burr

submitted affidavits from three consulting experts who reviewed

the     Alamance          County         Hospital       and     North      Carolina       Memorial

Hospital records.

       The   first        affidavit         was    from       Dr.   Jerry     C.    Bernstein,     a

Clinical      Professor            of    Pediatrics       at    the     University        of    North

Carolina Medical School.                     Although Dr. Bernstein agreed that

“consideration of abuse [was] uppermost in one’s diagnosis,” he

stated    that       the       number      and    nature      of    the    multiple       fractures

“should      raise        a    question      of    osteogenesis           imperfecta       (brittle

                                                   17
bone disease),” and that Susie’s injuries could have resulted

from an accidental fall compounded by OI.                     J.A. 968.

       After    consulting        with    Dr.       Berstein,      counsel        obtained   a

second affidavit from Dr. Colin R. Paterson, from the University

of    Dundee,    in    Scotland,        who    was   considered        to    be    a   leading

expert in brittle bone diseases.                     Dr. Paterson also stated that

“[t]he number and distribution of fractures . . . raises the

possibility of brittle bone disease (osteogenesis imperfecta).”

J.A. 908.       He attributed the earlier fractures to “some form of

[OI],” and all of Susie’s acute injuries to a “bad fall . . .

compounded by this disease.”                  J.A. 909.

       Both Dr. Bernstein and Dr. Paterson based their opinions

upon an accident whereby Scott dropped Susie to the ground and

then   fell     on    top    of   her    --    a    version   of    the      accident    that

appeared in some early medical and investigative reports but

which was not supported by the eyewitness testimony at Burr’s

trial.       Both Dr. Berstein and Dr. Paterson also noted that,

based upon their review of the medical records, Susie’s treating

physicians       may        not    have        considered       this        OI/short      fall

combination as a possible explanation for Susie’s preexisting

and fatal injuries.

       The    final    affidavit         was    from    Dr.   John      J.    Plunkett,      a

forensic pathologist and coroner from the State of Minnesota.

Dr.    Plunkett       stated      that    Susie’s      injuries        were       “absolutely

                                               18
consistent with those which may be caused if she was dropped

onto a gravel surface by an older sibling, who then fell on top

of    her.”      J.A.   943.     Dr.    Plunkett      did   not   address     the

possibility of a brittle bone disease, nor did he address the

cause of Susie’s prior, healing fractures.

      The     state   offered   evidence    in   opposition,      including    an

affidavit      outlining   the     district      attorney’s     interviews     of

Susie’s treating physicians and their opinions regarding OI and

Scott’s fall with Susie.         The physicians rejected these theories

as alternative causes of Susie’s extensive injuries and death,

and it appears that the state was prepared at trial to refute

any   such    accidental   death    claim     with,   at    a   minimum,    these

opinions.

      In two exhaustive orders, the state MAR court considered

and rejected Burr’s ineffective assistance of counsel claim. 2                 In

doing so, the state court made a number of factual findings and

conclusions that we summarize here. 3


      2
       On July 29, 1998, the North Carolina Supreme Court granted
Burr’s Petition for Writ of Certiorari for the limited purpose
of reconsideration in light of two state court cases. See State
v. Burr, 511 S.E.2d 652 (N.C. 1998).     This led to the second
state MAR court’s issuance of a second “Order and Memorandum
Opinion,” dated June 15, 2000, again denying relief. J.A. 1786.
      3
       Burr additionally argued that he should be granted a new
trial under North Carolina law based upon the “newly-discovered”
OI/short-fall evidence.     While the new-trial claim is not
directly relevant here, the state MAR court made findings and
(Continued)
                                       19
      With    regard      to    the    expert      opinions      that    Susie    may   have

suffered from OI or some similar degenerative or brittle bone

disease      that   her    treating        physicians         did   not    recognize     or

consider, the state court pointed out that the “defendant, the

party    with   the     burden        of   proof    .   .    .   ha[d]     not   presented

anything from the experts who testified at trial demonstrating

either that they never considered the possibility that Susie had

OI or that they believed that she had OI and that OI contributed

to her death.”          J.A. 1420 (emphasis added).                     On the contrary,

the court observed that “matters of record indicate that the

experts who testified found nothing indicative of bone disease

when evaluating Susie.”                J.A. 1420.           In particular, the state

MAR   court     noted     Dr.    Merten’s       testimony        that     Susie’s   “bones

[were]    perfectly       normal      other     than    the      injuries,”      J.A.   1421

(internal quotation marks omitted); Dr. Merten’s confirmation to

the lead prosecutor “that he had observed nothing in [Susie] to

indicate that she suffered from any such disease,” J.A. 1421;

Dr. Azizkhan’s reference in his trial testimony “to the very

rare condition of brittle bones in premature babies, evidence

indicating that he too was aware of the existence of ‘brittle




conclusions in connection with this claim that are also
pertinent to its rejection of the ineffective-assistance-of-
counsel claim.



                                              20
bone’   disease,”     J.A.    1421;   and     the   testimony          of    the    medical

examiner,     Dr.    Chancellor,      that     “there       was    no        degenerative

disease processes” observed, J.A. 1421 (internal quotation marks

omitted).

     The state court also reviewed numerous articles regarding

child abuse and OI that had been provided by Dr. Merten and

submitted to the court.             The court found the articles to be

indicative “of the knowledge possessed by a reasonably prudent

physician concerning the causes and diagnosis of child abuse

vis-à-vis accidental injury,” J.A. 1391, and noted that four of

the articles “included references to children with bone disease

or osteogenesis imperfecta,” J.A. 1398.                 The court additionally

reviewed     the    medical    records       and    noted     that          “the    salient

features    indicating       the   possible     existence         of    OI”        were   not

present in Susie.       J.A. 1422.       Finally, the court noted that the

consulting expert’s opinion regarding Scott’s fall was contrary

to the evidence at trial regarding the accident, contrary to the

unanimous views of the physicians who treated Susie, and did not

address OI.         Nor, we note, did it explain Susie’s preexisting

fractures.

     Having reviewed all of the medical evidence presented, and

taking note of the qualifications, experience, and training of

Susie’s treating physicians, the state court found no basis upon

which to conclude that the eminently qualified physicians who

                                         21
treated Susie “simply failed to give any consideration as to

whether Susie had a bone disease that contributed to her death,”

J.A. 1422, and found that “the far more reasonable inference is

that    [they]   knew    that    fractures    are   sometimes   caused     by

degenerative bone disease, but that nothing indicative of bone

disease   surfaced      while   they   were   evaluating   Susie   and    the

circumstances surrounding her injury and death.            Defendant, who

has the burden of proof, has not demonstrated otherwise.”                J.A.

1422.

       Turning more specifically to the claim that trial counsel

did not adequately prepare for trial, the state court made a

number of additional findings, as follows:

       First, matters of record demonstrate that trial
       counsel worked diligently for a reasonable amount of
       time. . . .        Second, lead trial counsel had
       considerable experience in the Guardian Ad Litem
       program that helped him understand the dynamics of a
       prosecution based on child abuse.        Third, trial
       counsel had an opportunity before trial to review both
       the medical evidence available and the thorough
       statements of a number of witnesses and other
       information in the State’s open files.   Fourth, trial
       counsel knew before trial that a host of eminent
       medical experts had reviewed available information
       concerning Susie and her cause of death, and that all
       experts opined that Susie died of child abuse, not an
       accidental fall.    Fifth, even though trial counsel
       tried diligently to delay the start of the trial,
       defendant’s well-qualified and experienced lead trial
       counsel never asserted a particularized necessity for
       appointment of an expert.     Sixth, defendant’s pre-
       trial motions and the transcript demonstrate that
       trial counsel’s actions were driven by a strategy to
       attempt to shift blame to a third party (e.g., Susie’s
       mother) and the understanding, based on the review of

                                       22
       a plethora of information from respected physicians,
       that Susie’s death was not attributed to accidental
       injury.

J.A.    1807-08    (internal    citation        omitted).        In    addition,   the

state      MAR      court      observed         that     while        “[d]efendant’s

postconviction counsel have found experts who take issue with

the [medical] witnesses at trial[,] [t]he mere fact that they

have found such experts does not demonstrate ineffectiveness of

counsel.”        J.A. 1809.         The state court observed that “trial

counsel’s        actions    [must     be    evaluated]       in       light   of   the

circumstances facing trial counsel at and before trial, and not

from the vantage point of ‘20-20 hindsight,’” that counsel’s

“performance         was      objectively          reasonable”           under     the

circumstances, and that “defendant’s proffers of evidence have

not shown a reasonable probability that but for trial counsel’s

alleged unprofessional errors, the result of the trial would

have been different.”           J.A. 1809.        The North Carolina Supreme

Court denied Burr’s petition for certiorari.                 J.A. 1864.

                                           D.

       On April 12, 2001, Burr filed the instant petition for a

writ of habeas corpus under 28 U.S.C. § 2254(d).                         On December

14, 2004, the magistrate judge recommended that habeas relief be

granted,    but      subsequently      stayed      the      matter      pending    the

development of additional evidence, including the identification

and discovery of additional experts.                   Following such discovery

                                           23
and   supplemental     briefing,      the    magistrate    judge   issued   a

supplemental recommendation that habeas relief be granted. 4

      On   May   30,   2012,   the    district    court   issued   its   order

granting habeas relief.        Because the Supreme Court’s then-recent

decision in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), made

it clear that the development of the evidence in the federal

habeas proceedings should not have been allowed, the district

court considered only the record that was before the state MAR

court when it made its decision.             The district court ruled that

Burr had made a sufficient showing that his trial counsel were

ineffective for failing to conduct additional investigation into

the medical evidence, and that the state court’s rejection of

the claim was unreasonable.          This appeal followed.



                                       II.

      Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism

and Effective Death Penalty Act of 1996, our review of the state

MAR court’s decision rejecting Burr’s ineffective assistance of

counsel claim is highly deferential.             Where, as here, a federal

habeas petitioner’s constitutional claim has been “adjudicated

      4
       The magistrate judge noted the state’s additional motion
to quash the affidavit of Dr. Paterson, whose medical license
had been revoked, and stated that this “would cause the Court,
at the very least, to afford his opinion considerably less
weight than previously assigned.” J.A. 443.



                                       24
on the merits in State court proceedings,” we may not grant

relief      unless    the    state       court’s         adjudication      “resulted    in    a

decision      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 unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.”         28    U.S.C.    §    2254(d).           See    also    Harrington       v.

Richter, 131 S. Ct. 770, 785 (2011).

       The “clearly established” Supreme Court precedent at issue

in this appeal is Strickland v. Washington, which sets forth the

two-prong      standard       for    evaluating           Sixth    Amendment     claims      of

ineffective     assistance          of    counsel.          To    establish     ineffective

assistance of counsel, “the defendant must show that counsel’s

performance was deficient,” and that “the deficient performance

prejudiced the defense.”                 Strickland, 466 U.S. at 687.              “Unless

a defendant makes both showings, it cannot be said that the

conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.”                                 Id. at

687.

       To   demonstrate       inadequate        or       deficient     performance      under

Strickland,          the      defendant         must         “show      that      counsel’s

representation             fell     below           an      objective        standard        of

reasonableness”           measured       by   “prevailing          professional    norms.”

                                               25
Id. at 688.       “A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight,      to    reconstruct       the     circumstances     of    counsel’s

challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.”           Id. at 689.        “[A] court must indulge

a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.”                Id.

      To demonstrate prejudice under Strickland, “[t]he defendant

must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different,” i.e., that he would have been found

not   guilty.        Id.    at   694.      “A   reasonable   probability    is   a

probability sufficient to undermine confidence in the outcome.

It is not enough ‘to show that the errors had some conceivable

effect on the outcome of the proceeding.’”                   Harrington, 131 S.

Ct. at 787 (citation omitted) (quoting Strickland, 466 U.S. at

693).   “Counsel’s errors must be ‘so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.’”

Id. at 787-88 (quoting Strickland, 466 U.S. at 687).

      Consequently, where the issue is whether the state court

has unreasonably applied Strickland standards to an ineffective

assistance of counsel claim, “double deference” is required –

deference    to    the     state   court    judgment   granting   deference      to

trial counsel’s performance.

                                           26
          “Surmounting Strickland’s high bar is never an
     easy task.”    Padilla v. Kentucky, 130 S. Ct. 1473,
     1485 (2010).     An ineffective-assistance claim can
     function as a way to escape rules of waiver and
     forfeiture and raise issues not presented at trial,
     and so the Strickland standard must be applied with
     scrupulous care, lest “intrusive post-trial inquiry”
     threaten the integrity of the very adversary process
     the right to counsel is meant to serve. Strickland,
     466 U.S. at 689–90.     Even under de novo review, the
     standard for judging counsel’s representation is a
     most deferential one. Unlike a later reviewing court,
     the attorney observed the relevant proceedings, knew
     of materials outside the record, and interacted with
     the client, with opposing counsel, and with the judge.
     It is “all too tempting” to “second-guess counsel’s
     assistance after conviction or adverse sentence.” Id.
     at 689; see also Bell v. Cone, 535 U.S. 685, 702
     (2002); Lockhart v. Fretwell, 506 U.S. 364, 372
     (1993).     The question is whether an attorney’s
     representation    amounted    to   incompetence    under
     “prevailing   professional   norms,”  not   whether   it
     deviated from best practices or most common custom.
     Strickland, 466 U.S. at 690.

          Establishing that a state court’s application of
     Strickland was unreasonable under § 2254(d) is all the
     more difficult.   The standards created by Strickland
     and § 2254(d) are both “highly deferential,” id., at
     689; Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997),
     and when the two apply in tandem, review is “doubly”
     so, Knowles [v. Mirzayance], 129 S. Ct. [1411], 1420
     [2009]. The Strickland standard is a general one, so
     the range of reasonable applications is substantial.
     129 S. Ct. at 1420. Federal habeas courts must guard
     against the danger of equating unreasonableness under
     Strickland with unreasonableness under § 2254(d).
     When § 2254(d) applies, the question is not whether
     counsel’s actions were reasonable. The question is
     whether there is any reasonable argument that counsel
     satisfied Strickland’s deferential standard.

Harrington, 131 S. Ct. at 788.

     As   the   Court   succinctly   stated,   “[i]f   this   standard   is

difficult to meet, that is because it was meant to be.”            Id. at

                                     27
786.    Indeed, “even a strong case for relief does not mean the

state court’s contrary conclusion was unreasonable.”                   Id.

       As a condition for obtaining habeas corpus from a
       federal court, a state prisoner must show that the
       state court’s ruling on the claim being presented in
       federal court was so lacking in justification that
       there was an error well understood and comprehended in
       existing law beyond any possibility for fairminded
       disagreement.”    Id. at 786-87.    “Section 2254(d) thus
       complements   the    exhaustion   requirement     and   the
       doctrine of procedural bar to ensure that state
       proceedings are the central process, not just a
       preliminary    step   for   a    later    federal    habeas
       proceeding.

Id. at 787 (emphasis added).



                                      III.

       We begin with Burr’s argument that we should review the

state    MAR    court   decision      de       novo   instead     of    under      the

deferential standards of § 2254(d).               Relying upon our decisions

in Winston v. Kelly, 592 F.3d 535 (4th Cir. 2010) (“Winston I”),

and Winston v. Pearson, 683 F.3d 489 (4th Cir. 2012) (“Winston

II”),   Burr   argues   that   the    state      court     decision    was   not     an

adjudication on the merits for purposes of § 2254(d) because the

state court denied his request for an evidentiary hearing.

       In Winston I, we held that a state court decision might not

be   deemed    an   adjudication     on    the    merits    for   purposes      of   §

2254(d) if diligent counsel was unable to complete the state

court record because the “state court unreasonably refuse[d] to


                                          28
permit further development of the facts of a claim.”                                     Winston

II, 683 F.3d at 496 (internal quotation marks omitted).                                    Here,

while the MAR court did not hold an evidentiary hearing, Burr’s

state post-conviction counsel had an unfettered opportunity to

obtain    and    present     expert     opinions          in    support       of     the     new

OI/short-fall       theory       of   defense,       and       the   state         MAR     court

accepted the affidavits of these experts at face value.                                      The

state court did not deny Burr’s state post-conviction counsel an

opportunity to develop the evidence that was presented during

the federal evidentiary hearing.                   Indeed there is no reason to

believe     that    state    post-conviction              counsel     could         not     have

developed the exact evidence produced by Burr’s counsel in the

federal evidentiary hearing.             The fact that Burr’s state post-

conviction      counsel     requested        but    was     denied       an    evidentiary

hearing simply does not, without more, warrant de novo review of

the state court’s decision.              See Winston II, 683 F.3d at 497.

Accordingly,       like    the    district         court,      we    review        the     state

court’s     adjudication         of    the     Strickland            claim         under     the

deferential standards of § 2254(d).



                                         IV.

                                          A.

     Burr contends that his trial counsel were constitutionally

deficient       because      they      failed        to        conduct        an     adequate

                                          29
investigation into the medical evidence in this case, and failed

to make a reasoned decision that further investigation was not

required.      See       Rompilla v. Beard, 545 U.S. 374, 380 (2005);

Wiggins v. Smith, 539 U.S. 510, 521-22 (2003).                        The heart of

Burr’s claim, however, is that trial counsel were ineffective

because they failed to obtain and present expert testimony to

refute the medical opinions of Susie’s treating physicians, and

failed to present to the jury an argument (1) that Susie had OI

which, combined with accidents, explained all of her injuries,

or (2) that even if Susie was a battered child, her fatal head

injury was from the fall with Scott alone and not from an acute

incident of such child abuse.

     To obtain federal habeas relief on this Strickland claim,

however, Burr must satisfy us that the state court’s rejection

of Burr’s arguments “was so lacking in justification that there

was an error well understood and comprehended in existing law

beyond      any         possibility         for      fairminded      disagreement.”

Harrington,       131    S.    Ct.    at   786-87.      “[T]he    question   is   not

whether [trial] counsel’s actions were reasonable.                     The question

is   whether      there       is     any   reasonable    argument     that   counsel

satisfied Strickland’s deferential standard.”                     Id. at 788.     Burr

has failed to overcome this hurdle.

     The state MAR court found that trial counsel had experience

in child abuse matters, had adequate time to review the medical

                                            30
evidence and witness statements, and worked diligently for a

reasonable amount of time investigating the case.                            Mindful that

it   must    “evaluate       trial       counsel’s       actions     in    light     of    the

circumstances facing trial counsel at and before trial, and not

from the vantage point of ‘20-20 hindsight,’” the state court

concluded     that    trial        counsel’s         “performance      was       objectively

reasonable.”         J.A.       1809.        We     cannot   say    that     this    was   an

unreasonable determination of the facts in light of the state

court    record,     or    an     unreasonable        application      of    Strickland’s

deferential standards.

       There is no question but that Burr’s trial counsel were

aware of Scott’s fall with Susie earlier in the day.                                However,

Susie was observed by both her mother and by Burr to be fine

after the fall.        All of the witnesses who checked on Susie after

the fall related that she had no cuts, scrapes, or gravel marks,

which was also consistent with the “cradled fall” description

that was given by the witnesses during the investigation and at

trial.      More importantly, however, trial counsel were presented

with     medical     records          from    independent,         eminently       qualified

treating     physicians         and    pediatric      specialists      documenting         the

preexisting     and       acute    non-accidental         injuries        that    Susie    had

sustained,     and    unanimously            rejecting    the   notion       that    Scott’s

fall with Susie (even as originally reported) was a possible

cause of the injuries.

                                               31
       Susie’s     initial     treating        physician           at     Alamance        County

Hospital     immediately       recognized            that         Susie       had     sustained

diffuse,    severe       injuries,      and    that        the    fall    with      Scott,     as

Bridges    had    related    it   to     him,       could        not   account      for     them,

prompting him to alert authorities to the suspected child abuse.

The    investigating        authorities            observed        and    documented         the

severity     of    the    injuries       as        well.         Susie’s       treating      and

evaluating physicians at the UNC Medical Center, all of whom

were    pediatric     and    child      abuse        experts,          were    also    of    the

unanimous opinion that Susie had been abused, and that Scott’s

fall could not have caused her injuries.

       When Susie was admitted to the hospital, she had sustained

an acute, blunt force head injury and was suffering from the

effects of it, including seizures, swelling of the fontanel, and

unconsciousness.          Even if competent trial counsel would have

reasonably       entertained      the    notion        that        Susie’s      lethal      head

injury might have occurred when Scott fell with her earlier in

the day (in the face of the evidence that she had no visible

marks and seemed fine thereafter), the head injury was just the

start of the picture painted by these records.

       As noted above, Susie had no visible marks or bruises when

she was checked by her mother, Burr and other family members.

But when Susie arrived at the hospital six hours later, she had

multiple bruises and swelling all over her head, scalp, ears,

                                              32
face, neck, arms, legs, and trunk.               Bruises on her neck were

consistent with marks caused by a hand.               Bruises on her cheek

were consistent with marks caused by fingers.               Round bruises to

the upper chest and back indicated that a blunt object had been

utilized to inflict them.          There were additional bruises to the

back of the head, as well as bleeding behind both of her eyes

which was considered to be suggestive of shaken baby syndrome.

In addition, both of Susie’s upper thighs and both of Susie’s

upper    arms   “were    broken   cleanly     through.”    J.A.     1436.    The

nature of the breaks suggested either significant direct blows

or gruesome, manual manipulation of the extremities.                    Susie’s

leg breaks were consistent with her knees being bent forward

with violence and significant force, hyperextending the knees

until the leg was broken.           Susie’s arm breaks were consistent

with someone grabbing her arms, torqueing them and pulling them

backwards.

     To the extent Burr continues to press OI as a possible,

contributing     cause    of   Susie’s    injuries   and   death,    there   was

likewise nothing in the records that would have raised such a

possibility. 5     As the state court found, Burr, “the party with


     5
       The district court properly declined to consider the
additional  evidence  developed during  the   federal habeas
proceedings, but it did observe that the evidence that Susie
suffered from OI had weakened.     On appeal, Burr’s counsel
largely abandons the OI portion of the claim, which was the
(Continued)
                                         33
the burden of proof . . . [did] not present[] anything from the

[treating    physicians]    demonstrating         either     that      they    never

considered    the   possibility    that    Susie       had   OI   or    that    they

believed that she had OI and that OI contributed to her death.”

J.A. 1420 (emphasis added).         On the contrary, the “matters of

record indicate[d] that the [treating physicians] found nothing

indicative of bone disease when evaluating Susie.”                     J.A. 1420.

There was simply no basis upon which to conclude that Susie’s

treating    physicians   “failed   to     give    any    consideration         as   to

whether Susie had a bone disease that contributed to her death,”

J.A. 1422, and that “the far more reasonable inference [was]

that   [they]   knew     that   fractures        are    sometimes      caused       by



primary focus of the argument presented to the state MAR court.
Counsel barely mentions Dr. Bernstein or Dr. Paterson in the
history of the case, and confirms the state’s introduction of
evidence that “Dr. Paterson was [subsequently] charged with
providing misleading testimony about another syndrome, Temporary
Brittle Bone Disease,” Appellee’s Brief at 29 n.11, apparently
causing him to lose his medical license.           Instead, Burr
primarily relies instead upon Dr. Plunkett’s affidavit and
argues that counsel should have developed evidence that Susie’s
fatal injury could have resulted from the fall with Scott alone.

     While we take note of this evolution of the post-conviction
claim as it has progressed over the past 16 years, we do not
consider the evidence as it developed in the federal court and
need not confront the issue of Dr. Paterson’s credibility at
this juncture.     The state court accepted Dr. Paterson’s
affidavit at face value. Our review is limited to the question
of whether the state court’s adjudication of the ineffective
assistance of counsel claim, as it was presented to it, was
unreasonable.



                                    34
degenerative bone disease, but that nothing indicative of bone

disease    surfaced      while   they   were     evaluating     Susie    and    the

circumstances surrounding her injury and death.”                J.A. 1422.

     The record also does not support Burr’s contention that

trial counsel unreasonably failed to secure the assistance of an

expert     in    light   of    the   factual    investigation      and    medical

records.        Trial counsel requested an eleventh-hour continuance

based in part upon their stated desire to evaluate the need for

expert assistance.        That request was denied.            But, prior to the

start of the guilt phase of Burr’s trial, counsel did in fact

consult with Dr. Runyan, a leading North Carolina child abuse

expert.         Dr.   Runyan   confirmed     that   Susie’s    death     was   non-

accidental and that Scott’s fall could not have been the cause.

According to Dr. Runyan, Susie “would have to be dropped from

about 8 feet 6 inches or more to cause the amount of brain

damage and injury [she] suffered.”             J.A. 1436. 6


     6
       During their treatment of Susie, some of the physicians,
based upon x-rays and CT scans, observed that Susie had
sustained a skull fracture in addition to the underlying closed
head trauma that led to her death.     Dr. Chancellor’s autopsy
report indicated that there was no fracture of the skull,
although there was clearly no dispute as to the existence of the
blunt force head trauma that caused Susie’s death.    Burr makes
much of the existence or nonexistence of an actual fracture to
the skull itself, but we are at a loss to see much critical
significance.   All of the treating physicians and the medical
examiner agreed that the cause of Susie’s death was blunt force
head trauma, and its resulting swelling and pressure in the
brain, and that significant force was necessary to cause this
(Continued)
                                        35
     As the state court reasonably observed, “trial counsel knew

before trial that a host of eminent medical experts had reviewed

available information concerning Susie and her cause of death,

and that all experts opined that Susie died of child abuse, not

an accidental fall.”         J.A. 1807 (emphasis added).             These medical

opinions were not from consulting experts or state witnesses

retained or employed to assist in the collection of evidence on

behalf    of   the    prosecutors.          They    were    from     the       treating

physicians who actually examined Susie and attempted to save her

life, and from the medical examiner that conducted the autopsy.

We have no doubt that competent trial counsel, after consulting

with Dr. Runyan, reasonably concluded that further investigation

was unnecessary, and that they were foreclosed from credibly

arguing   to    the   jury    that    Susie    died    as     a    result       of   the

accidental     fall   with    her    8-year-old      brother.            The    medical

opinions regarding the existence of child abuse and the non-

accidental     nature    of    the   cause     of     death       were     unanimous,

consistent with the physical evidence and factual investigation,

and overwhelming.




trauma. Burr presented no evidence to the state MAR court that
the treating physicians would have changed their opinions
regarding child abuse vis-à-vis accident based upon the
difference in the radiographic evidence and the autopsy report.



                                       36
       Finally, Burr’s claim that trial counsel’s concession of

child abuse and failure to pursue alterative theories of injury

and death left Burr defenseless and the jury with no “rational

option” other than to convict is likewise not supported by the

record.      See Elmore v. Ozmint, 661 F.3d 783, 855 (4th Cir.

2011).       As   the    state       MAR   court     observed,         “trial    counsel’s

actions were driven by a strategy to attempt to shift blame to a

third party (e.g., Susie’s mother) and the understanding, based

on    the   review      of   a     plethora    of    information         from    respected

physicians, that Susie’s death was not attributed to accidental

injury.”     J.A. 1807-08.           Our independent review of the record of

the    trial      unquestionably           reveals     this       to     be     the   case.

Capitalizing upon Burr’s minimal role in the family, as well as

evidence of Bridges’ actions leading up to and on the night of

the fatal abuse, trial counsel pointed the finger at Bridges as

an alternative suspect, and persuasively argued reasonable doubt

to the jury.

       Burr’s current post-conviction counsel ignores this clear

strategy, and repeatedly represents that trial counsel did no

more than concede abuse and argue that Susie might have been

attacked by a “deranged stranger” who entered the trailer and

inflicted the mortal punch – all to support the claim that trial

counsel’s      strategy      was    ridiculous       and   left    the    jury    with   no

choice but to convict.              See e.g., Appellee’s Brief at 19, 29-30;

                                              37
id. at 43 (citing a portion of trial counsel’s closing argument

and   arguing     that    “by    abandoning    the    fall    without     adequate

investigation, [counsel] were left with no theory at all, other

than perhaps a ‘deranged stranger’ beat Susie.”).                    But this is

simply not the case at all.

      Trial     counsel    did     reference   a     “deranged     stranger”     in

closing argument, but the reference was clearly offered to the

jury in the context of explaining reasonable doubt.                      Actually,

trial counsel argued to the jury that while such a “deranged

stranger” was “a possible explanation,” it would likely “fall[]

within   what     the    District    Attorney’s      office    would     call   the

ingenuity of counsel, a fanciful doubt, not a reasonable doubt.”

J.A. 4065.      Trial counsel then proceeded, in accordance with the

planned strategy, to discuss the evidence of the family members

that had motive and opportunity to inflict the fatal injuries

that night, culminating in the argument that Bridges was the

most probable culprit and, at a minimum, enough of a suspect to

create such reasonable doubt.

      Having considered the record and arguments of counsel, we

simply cannot say that the state court’s adjudication of the

performance prong of Strickland was an unreasonable one.                    There

is    certainly    a     “reasonable    argument      that     [trial]    counsel

satisfied     Strickland’s       deferential   standard”      by   reviewing    the

medical evidence, consulting with Dr. Runyan, and pursuing an

                                        38
alternative-perpetrator,          reasonable-doubt      defense            that   was

consistent with the factual investigation and the overwhelming

medical    evidence   that    Susie    was   a   victim    of     child       abuse.

Harrington, 131 S. Ct. at 788.

                                      B.
     Considering the second prong of Strickland, the state court

found     that   Burr’s   evidence     failed    to     show      a    reasonable

probability that but for trial counsel’s alleged unprofessional

errors, the result of the trial would have been different.                        We

cannot say that the state court’s adjudication of the prejudice

prong was unreasonable either. 7

     The    jury   rejected   a    defense   strategy     aimed       at    creating

reasonable doubt in their minds that Burr, as opposed to Susie’s

mother or the other persons with access to Susie, inflicted the
     7
       On appeal, Burr has argued that the state MAR court
applied the wrong prejudice standard, again necessitating de
novo review of the claim.    In support, however, Burr cites to
the state MAR court’s initial order that includes, in connection
with the prejudice prong of Strickland, the observation that
Burr had “proffer[ed] nothing demonstrating that his trial was
fundamentally unfair or that the results are unreliable as a
result of trial counsel’s performance,” J.A. 1443, and cites
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993), as the pertinent
authority in support. However, in the state MAR court’s second
decision, issued on remand from the North Carolina Supreme
Court,   the   state   MAR  court   explicitly   recognized  the
clarification that Williams v. Taylor, 529 U.S. 362, 391 (2000),
provided to the Strickland prejudice prong and the breadth of
Lockhart, and reconsidered and reissued its decision in light of
the Supreme Court’s clarification.    Burr’s representation that
the state court applied the wrong standard of review appears to
overlook this second order.



                                      39
mortal     wound.      Indeed,     Burr’s          post-conviction         counsel     argued

before us that competent trial counsel would have presented this

defense,      seemingly    ignoring         the     fact    that     trial       counsel    did

present this defense.            In any event, the stakes are high, and it

is   all      too   tempting     for    post-conviction              counsel,      with     the

benefit       of    hindsight,         to     second-guess           the        investigative

decisions of trial counsel and to now argue that Burr might have

fared better on the reasonable doubt argument if trial counsel

had presented the jury with the theory that Susie could have

sustained her lethal head injury when Scott tripped and fell

while carrying her.

       This    argument,      however,       does     not     take    into       account    the

prosecution’s plans to refute any claim that Scott’s fall with

Susie    resulted     in   her    condition,          nor    prosecutorial          arguments

that     might      well   have       weakened        the     credible,          alternative

perpetrator defense that trial counsel did advance on Burr’s

behalf.        Indeed, it takes little effort for us to imagine a

converse case -- where post-conviction counsel would criticize

trial    counsel’s     decision        to   risk      credibility          by    advancing    a

speculative osteogenesis imperfecta/accidental death theory that

would    blame      Susie’s    injuries       upon     her    8-year-old          brother    in

direct     contradiction         to     the        opinions     of     the       physicians,

pediatric specialists and child abuse experts who treated and

evaluated her.          We pass no judgment on the merits of such a

                                              40
hypothetical Sixth Amendment claim, of course, but it highlights

why such double-deference is due to state courts that adjudicate

Strickland claims.            “Reliance on the harsh light of hindsight to

cast   doubt    on       a    trial      that    took      place     [20]      years       ago    is

precisely      what          Strickland         and       AEDPA      seek      to      prevent.”

Harrington,        131       S.   Ct.     at     789       (internal        quotation       marks

omitted).      It not our role to conduct such an “intrusive post-

trial inquiry” into the defense of this crime, id. at 788, or to

second-guess       the       “state      proceedings         [that]      are     the      central

process, not just a preliminary step for a later federal habeas

proceeding,”       id.       at   787.      At       a    minimum,    Burr’s        ineffective

assistance     of        counsel        claim        lends      itself      to      “fairminded

disagreement”        among        jurists,       id.       at     787,   and        the    double

deference due to the actions of trial counsel and the decisions

of the state courts that evaluate them compel denial of federal

habeas relief.



                                                V.

       For   the    reasons        set    forth          above,    the   judgment          of    the

district court is reversed.

                                                                                          REVERSED




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