UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES SAMUEL BRUNO,
Petitioner-Appellant,

v.                                                                      No. 96-6462

FRANKLIN R. FREEMAN; RANDY LEE,
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CA-95-612-HC)

Argued: October 28, 1996

Decided: April 14, 1997

Before WILKINS and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished opinion. Senior Judge Phillips wrote the
opinion, in which Judge Wilkins and Judge Luttig joined.

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COUNSEL

ARGUED: Nora Henry Hargrove, Wilmington, North Carolina, for
Appellant. Clarence Joe DelForge, III, Assistant District Attorney,
Raleigh, North Carolina, for Appellees. ON BRIEF: Michael F. Eas-
ley, Attorney General of North Carolina, Raleigh, North Carolina, for
Appellees.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PHILLIPS, Senior Circuit Judge:

Charles Samuel Bruno appeals the district court's dismissal by
summary judgment of his federal habeas petition challenging his con-
viction by a North Carolina court of several sexual assault-related
offenses. His specific challenge is to the constitutionality of the state
court's treatment of DNA evidence used against him. We find no
reversible error in the dismissal of his petition and affirm.

I.

The sordid facts of the case are reported in detail in the opinion of
the North Carolina Court of Appeals, see State v. Bruno, 424 S.E.2d
440 (N.C. App. 1993), and need not be repeated in that detail here.
It suffices for our purposes to say only that Bruno was convicted in
a state court jury trial and sentenced to thirty-nine years imprisonment
for first-degree burglary, second-degree rape, and second-degree sex-
ual offense on evidence that he forced his way at night into the resi-
dence of a married woman with whom he had had a sexual
relationship, and there sexually assaulted her fourteen-year-old
daughter who had been left there with two younger children by her
mother. In convicting him, the jury rejected his alibi defense and
found him guilty on the basis of his victim's identification, some cir-
cumstantially corroborating evidence as to his whereabouts and con-
duct on the evening of the assault, and evidence linking samples of
his DNA to semen found on the victim's nightclothing. It is entirely
upon the state court's handling of the DNA evidence and expert wit-
ness testimony offered to support and to challenge its admissibility
and probative value that Bruno's federal habeas challenge is based.
We therefore briefly summarize the critical aspects of those evidenti-
ary developments in the state court trial.1
_________________________________________________________________
1 In doing so, we emphasize that our summary involves much para-
phrase and compression of the extensive portions of the state trial court

                     2
The DNA evidence in question resulted from FBI testing to deter-
mine whether DNA fragments extracted from a blood sample taken
from Bruno shortly after the assault matched those extracted from a
patch of semen found on the victim's nightgown. Aware that the test
results were considered positive for inferring identification by the FBI
testers and would be offered in evidence for that purpose by the state,
Bruno moved at trial for an order excluding in limine any testimony
by expert witnesses for the state that would assign, on the basis of the
FBI testing procedures, any statistical probability to the chance
matching of DNA profiles, and also moved for suppression of any
evidence respecting the actual DNA testing by the FBI of the blood
and semen samples provided it by the state. After an extensive voir
dire proceeding in which live and deposition testimony of expert wit-
nesses for both the state and Bruno was considered, the state trial
court granted Bruno's motion to exclude in limine any expert testi-
mony as to statistical probabilities of chance matchings of DNA pro-
files based upon FBI test procedures, but denied the motion to
suppress all evidence of the actual tests done and the results achieved
by the FBI using the samples provided it by the state.

Following these rulings, the state introduced documentary and tes-
timonial evidence concerning the FBI's DNA testing of the samples
in issue. The critical evidence for our purposes was the testimony of
three duly qualified experts in the relevant scientific fields who
described in general the DNA matching procedures used by the FBI
and specifically analyzed the results of the test conducted under those
procedures to determine whether Bruno's DNA matched that
extracted from the semen sample.

First, Dr. Harold Deadman, Jr., Supervisory Special Agent with the
FBI laboratory that performed the test, described in general the test
procedures used, their purposes, and how they were developed and
validated. He then described the conduct and results of the test proce-
dures as applied to the DNA samples at issue. In summary, he testi-
fied, over objection, using exhibits of the test materials, that of four
testing "probes" done to determine whether different fragments of
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record devoted to the court's handling of the DNA evidence. We include
only so much of a quite lengthy record as is required to address the spe-
cific constitutional challenges raised in this federal habeas proceeding.

                    3
DNA strands extracted from Bruno's blood sample matched those
extracted from the semen sample, each indicated a match, though one
with less visual clarity than the others because of some degradation
of the target DNA. Explaining that because of the fragmentary nature
of the DNA strands used in these procedures such matching results
were not claimed to provide the basis for an "absolute identification,"
he opined that "taken individually," the four matching results in this
case did each, however, provide the basis for a"meaningful associa-
tion" or "link" between Bruno and the semen sample and, that "taken
all together" they provided the basis for an"extremely strong associa-
tion" in that they positively demonstrated that the semen "could have
been contributed" by Bruno while none of the probe results positively
excluded him as its source. J.A. 395-435.

Dr. Wesley Kloos, a professor of genetics and microbiology at
North Carolina State University, testified that he was familiar with the
FBI testing procedures as described by Dr. Deadman, and opined that
they were capable of producing reliable results in identifying matches
between different DNA samples. Turning to the test results at issue,
he testified that he had examined them independently and upon again
examining them, he essentially concurred with Dr. Deadman's opin-
ion that each of the four probes revealed a match of the DNA from
Bruno's blood sample with that from the semen sample, though again
with less certainty as to one having degraded DNA. Over objection,
he opined that "the more probes that one has identity or matches for[,]
the higher the probability of the determination." J.A. 503-519.

Mark Steven Nelson, holder of a master's degree in biology and
Supervisor of the State Bureau of Investigation's Serology Section,
testified that based upon his education, his specialized training in
DNA testing, his recent experience with such testing in the Serology
Section's DNA unit, and his resulting familiarity with his own agen-
cy's procedures and those of the FBI as described by Dr. Deadman,
he considered that the FBI procedures met accepted scientific stan-
dards of quality assurance. Respecting the specific test results in
issue, he testified, based upon his independent examination of the four
probe results, that three of the four did demonstrate matches; the one
involving degraded DNA he thought inconclusive; and he considered
that none, including the inconclusive one, excluded Bruno as the
semen source. Without any objection by Bruno, he opined in response

                    4
to the state prosecutor's question whether there was any significance
"as to the combined results of all four probes" that there was: "Every
time you do an increased number of probes, every time you add an
extra probe and get an additional match it further strengthens the sig-
nificance of your analysis." J.A. 535-547.

The deposition of Dr. Steven A. Peiper, stipulated to be an expert
in molecular biology and pathology, was introduced, in redacted
form, in Bruno's defense. Based upon his analysis of the FBI test
results, Dr. Peiper concluded that two of the probe results revealed
matches, but that neither of the other two did (as to one of the two
"bands" of target DNA) a result which in his opinion excluded Bruno
as the semen source. J.A. 13. Redacted from his deposition, hence not
admitted over Bruno's objection, was Dr. Peiper's further opinion that
the FBI's testing procedures were flawed in critical respects that drew
their general reliability in doubt, and that the sort of DNA testing for
purposes of identification which they involve is not generally
accepted in the relevant scientific community.

Following his conviction and sentence, Bruno appealed to the
North Carolina Court of Appeals. Among other assignments of error
in that court he claimed error in the state trial court's admission vel
non of the DNA evidence and, more specifically, in its admission of
the testimony of each of the state's expert witnesses that multiple
DNA probe matches have greater significance in identifying a suspect
than would individual matches, and the court's refusal to admit the
deposition testimony of Dr. Peiper which challenged the statistical
reliability of the FBI matching procedure because of asserted flaws in
the data base upon which it was based. The North Carolina Court of
Appeals found no legal or constitutional error in any of these respects
and affirmed the conviction. Id. The Supreme Court of North Carolina
denied discretionary review without discussion and dismissed
Bruno's appeal. State v. Bruno, 428 S.E.2d 185 (N.C. 1993). Bruno
did not seek review by the Supreme Court of the United States nor
any state post conviction relief, but sought federal habeas corpus
relief under 28 U.S.C. § 2254 by petition to the United States District
Court for the Eastern District of North Carolina. In his petition, he
claimed constitutional error in the various evidentiary rulings we have
identified. The district court dismissed the petition on the state's
motion for summary judgment, holding, inter alia , that the claimed

                    5
errors were all of the trial type which raise no cognizable issues on
federal habeas review unless they go to the fundamental fairness of
a state trial or implicate a specific federal constitutional right. And,
the court concluded that none of the claims of error respecting the
DNA evidence raised cognizable constitutional issues. Bruno v.
Freeman, No. 5:95-NC-612-BO (E.D.N.C. Feb. 19, 1996) (order
granting summary judgment).

This appeal followed.

II.

Preliminarily, we observe that the state contends that the relatively
more deferential standards for federal habeas review of state court
judgments embodied in the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (the Act),
should be applied in this case which was pending when the Act was
adopted. Bruno has not challenged that contention, but we find it
unnecessary to address the question of the Act's retroactivity in this
respect, concluding that Bruno's claims were properly dismissed even
if assessed under pre-Act standards. See Sherman v. Smith, 89 F.3d
1134, 1142 n.1 (4th Cir. 1996) (en banc).

III.

Bruno makes three challenges, which he asserts are constitutionally
based, to the state trial court's handling of the DNA evidence.

First, he challenges the court's refusal to admit the portion of
Dr. Peiper's deposition that questioned the reliability in general of all
DNA matching analysis, and specifically that of the FBI procedures
employed in this case. This, he claims, violated his rights under the
Confrontation Clause of the Sixth Amendment to impeach the state's
expert witnesses' testimony that each of the probe matches suggested
a "link" or "association" between Bruno and the semen sample and
that multiple probe results were even more significant for that pur-
pose. Appellant's Br. i, 11-22. Next, he challenges on fundamental
fairness/due process grounds the admission of the testimony of the
state's expert witnesses to the effect that as the number of probe result

                     6
matches increases, so does their probative significance. Appellant's
Br. i, 22-25. Finally, he challenges, on fundamental fairness/due pro-
cess grounds, the admission vel non of any of the DNA evidence
against him, on the basis that its scientific unreliability is demon-
strated by the very fact of the conflicting expert analyses of the probe
results. Appellant's Br. i, 25-27.

We first observe of all these challenges that they concern state
court trial rulings respecting the admission and exclusion of evidence
which are cognizable in federal habeas corpus only to the extent that
they violate specific constitutional provisions or are so egregious as
to render the entire trial fundamentally unfair and thereby violate the
due process clause of the Fourteenth Amendment. Estelle v. McGuire,
502 U.S. 62, 67-68 (1991); Spencer v. Murray, 5 F.3d 758, 762-63
(4th Cir. 1993). And, we further note that the Supreme Court has "de-
fined the category of [such trial court] infractions that violate `funda-
mental fairness' very narrowly." Dowling v. United States, 493 U.S.
342, 352 (1990). With those general principles in mind, we consider
Bruno's challenges in reverse order.

A.

Bruno's contention that unreliability of the DNA evidence, hence
fundamental unfairness in its admission, is sufficiently demonstrated
by the various experts' different and conflicting readings of the probe
results, is not cognizable as a constitutional claim. The fact that con-
flicts, major and minor, occur in expert witnesses' analyses of scien-
tific evidence is of course a commonplace rather than a rarity in
litigation. Such conflicts could not be taken to demonstrate, in and of
themselves, the unreliability amounting to fundamental unfairness of
admitting such evidence against a criminal defendant. It suffices to
uphold the admission vel non of the state's DNA evidence against a
claim of fundamental unfairness that duly qualified experts for the
state testified to its reliability when based on scientifically sound pro-
cedures which they opined were followed in this case. How the spe-
cific evidence should be evaluated, given the conflicting testimony as
to its probative value, was for the jury as a matter of state law. See
Spencer, supra, 5 F.3d at 762-63 (4th Cir. 1993) (upholding admis-
sion of comparably based DNA evidence over constitutional chal-
lenge to reliability).

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B.

Bruno's claim of constitutional error in allowing the state's expert
witnesses to give their respective opinions that DNA probe matches
increase in probative significance as their number increases, is but
another challenge to the general reliability of the FBI procedures upon
which this testimony was based. Specifically, the contention is that if,
as the trial court properly ruled, the procedures were not sufficiently
reliable to support evidence of the probability expressed in statistical
terms that any DNA matches disclosed were the result of random
chance rather than actual identity, then they were not sufficiently reli-
able to support simple testimony that two test-disclosed matches are
more probative of identity than one, three more than two, etc.

Assuming, without deciding, that the trial court rightly thought the
FBI procedures not sufficiently reliable (because of their limited data
base) to support testimony concerning the statistical significance of
any matching results they disclosed, Bruno's claim yet fails for a
number of reasons.

First, as the state points out, it is barred from federal habeas review
as a constitutional claim by its procedural default in the state court.
As indicated, although Bruno objected to the testimony of
Drs. Deadman and Kloos as to the increased significance of multiple
matches, that of Mark Nelson to the same effect was later admitted
without objection. J.A. 546-47. The North Carolina Court of Appeals
on direct review expressly found that for this reason Bruno's claim of
error on this ground was procedurally defaulted under settled state
law. Bruno, 424 S.E.2d at 446. This ruling, the last reasoned one con-
cerning this claim in the state courts, constituted an adequate and
independent state ground for rejecting the claim which bars federal
habeas review in the absence of any showing of cause and prejudice
for the default. Harris v. Reed, 489 U.S. 255, 260 (1989). Bruno has
attempted no showing of cause and prejudice.

Assuming, however, that the claim were not held to be barred by
an unexcused procedural default in the state court, it could not suc-
ceed under the stringent federal due process standard of fundamental
unfairness. Even if the FBI procedures were properly held to be inad-
equate to allow the reliability of their DNA test results to be

                    8
expressed in terms of the statistical probability that any matches they
disclosed were the result of random chance, this would not affect the
reliability of simple testimony (whether or not given by qualified
experts) that the significance of these (or any) test results increases as
the number of like results increases. Indeed, that this is so is a matter
of such common knowledge and understanding among persons of
ordinary intelligence that to have it attested by a witness could not be
thought to introduce any fundamental unfairness into a trial. We are
satisfied that it did not do so here.

C.

Bruno's challenge to the state court's exclusion of the deposition
testimony of Dr. Peiper that was offered to impeach the state expert
witnesses' testimony as to the increased significance of multiple DNA
matches is asserted as a Sixth Amendment Confrontation Clause vio-
lation. He cites no authority for the proposition that that constitutional
right extends past its hearsay and cross-examination components, see
Delaware v. Fensterer, 474 U.S. 15, 18 (1985) (so defining scope of
right), to include a right to introduce extrinsic evidence impeaching
a state's witness.2 We accordingly analyze the claim as yet another
Fourteenth Amendment due process claim of fundamental unfairness
in depriving an accused of the means for making a fair defense--a
right surely congruent with that protected in its specific realm by the
Confrontation Clause. See California v. Green , 399 U.S. 149, 186-
187 (1969) (Harlan, J., concurring) (making the comparison).

So analyzed, we conclude it does not constitute a cognizable con-
stitutional claim; the exclusion of this evidence could not be thought
to have made Bruno's trial fundamentally unfair. As the state points
out, and the state court of appeals expressly noted, see Bruno, 424
S.E.2d at 446-47, the evidence proffered and excluded would have
challenged the very FBI data base which Bruno's successful motion
in limine had precluded the state from relying upon to demonstrate the
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2 None of the cases expressly relied upon, Delaware v. Fensterer, 474
U.S. 15 (1985); Davis v. Alaska, 415 U.S. 308 (1974); California v.
Green, 399 U.S. 149 (1970); Smith v. Illinois, 390 U.S. 129 (1968);
Pointer v. Texas, 380 U.S. 400 (1965), involved extrinsic impeaching
evidence.

                     9
statistical significance of any matching results disclosed by its proce-
dures. To exclude the evidence under those circumstances is better
seen as compelled fairness to the state than as fundamental unfairness
to an accused who had effectively invited exclusion of any evidence
respecting the adequacy or inadequacy of the data base for the pur-
pose at issue. Furthermore, Dr. Peiper was allowed to testify exten-
sively to what he considered to be flaws in the three state expert
witnesses' analyses and conclusions respecting the FBI matching test
results.

Accordingly, we conclude that Bruno's challenge to the exclusion
of this portion of his expert witness's deposition testimony does not
constitute a cognizable constitutional claim of fundamental unfairness
depriving of due process.

D.

Finally, we observe that even were constitutional error to have
occurred in all or any of the "trial-type" evidentiary rulings chal-
lenged, that would not warrant federal habeas corpus relief unless the
errors were such as to create for us "grave doubt" as to whether they
had a "substantial and injurious effect or influence in determining the
jury's verdict" in this case. O'Neal v. McAninch, 115 S. Ct. 992, 994
(1995) (citations omitted). Those claimed here do not create any such
doubt for us. The other evidence of Bruno's guilt--particularly the
victim's contemporaneous identification of Bruno by well-known
voice and other characteristics and the use of and response by both
attacker and victim to the other's names--was sufficiently persuasive
that we could not assign "substantial and injurious effect" upon the
jury's verdict to the further evidence of guilt supplied by the DNA
test results.

AFFIRMED

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