                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-7417


CLINTON SMITH,

                 Petitioner - Appellant,

          v.

GERALD J. BRANKER, Administrator,

                 Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:09-hc-02082-D)


Submitted:   October 20, 2011              Decided:   January 13, 2012


Before KING, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Malcolm Ray Hunter, Jr., David Weiss, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant. Clarence Joe
DelForge, III, Assistant Attorney General, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Clinton         Cebert     Smith       appeals    the     district      court’s

dismissal of his petition for a writ of habeas corpus under 28

U.S.C. § 2254 (2006).               The facts underlying Smith’s convictions

have been exhaustively recounted in the North Carolina courts.

See, e.g., State v. Smith, 524 S.E.2d 28, 33-36 (N.C. 2000).                               In

brief,   Smith’s       ex-girlfriend,          Sylvia      Cotton,     and    their     three

children were poisoned with Di-Syston, a lethal organophosphate

pesticide,      in    January       1996.      One    of    the     children,      Britteny,

died; Cotton and the other two children were hospitalized but

eventually      recovered.           Smith    was    later    convicted       by    a   North

Carolina    jury      of    one     count    of    first-degree       murder    and     three

counts     of    attempted          first-degree          murder.       Although        Smith

initially received a capital sentence, it was reduced to life

imprisonment after a state court determined that he is mentally

retarded.

            Following his convictions, Smith filed a motion for

appropriate          relief    (“MAR”)       in      state     court,     alleging,        in

pertinent part, that the State had violated Brady v. Maryland,

373 U.S. 83 (1963), and its progeny by failing to disclose the

existence       of     a    letter     written       by     Dr.     Darrell     Sumner,     a

toxicologist         whom     the    prosecution       had    consulted        during     its

investigation of the case against Smith.                          The state MAR court

rejected Smith’s Brady claim, and the Court of Appeals of North

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Carolina      denied    certiorari.             Smith    then        filed     his    § 2254

petition for federal habeas corpus relief, which the district

court dismissed.          We granted a certificate of appealability,

directing briefing on the issue of whether the State violated

Brady   and    Giglio    v.   United      States,       405    U.S.      150    (1972),    in

failing to disclose Dr. Sumner’s letter to the defense.                               We now

affirm.

              This court reviews de novo a district court’s denial

of habeas corpus relief on the basis of a state court record.

See   Tucker     v.    Ozmint,     350    F.3d    433,        438    (4th      Cir.   2003).

Nevertheless,         where    the       state     court           has   adjudicated        a

petitioner’s      claim       on   the     merits,           the    Antiterrorism         and

Effective Death Penalty Act of 1996 (“AEDPA”) provides that a

federal court may grant a habeas petition only if the state

court’s    adjudication        “(1)      resulted       in    a     decision     that     was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States,” or “(2) resulted in a decision that was

based on an unreasonable determination of the facts in light of

the   evidence    presented        in    the    State    court       proceeding.”          28

U.S.C. § 2254(d) (2006).

              In addressing Smith’s Brady claim, the state MAR court

correctly recognized:



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       “There are three components of a true Brady violation:
       The evidence at issue must be favorable to the
       accused, either because it is exculpatory, or because
       it is impeaching; that evidence must have been
       suppressed   by   the   State,  either   willfully  or
       inadvertently; and prejudice must have ensued.”

State v. Smith, No. 96-CRS-948 to -51, slip op. at 3 (N.C.

Super.    Ct.     June    19,    2002)        (the    “MAR    Decision”)      (quoting

Strickler   v.     Greene,      527    U.S.    263,    281    (1999)).       That   is,

evidence is favorable not only when it would tend to exculpate

the    accused,    but    also   when     it    can    be    used    to   impeach   the

prosecution’s witnesses.              See United States v. Bagley, 473 U.S.

667, 676 (1985); United States v. Trevino, 89 F.3d 187, 189 (4th

Cir. 1996).       Evidence tending to impeach a witness for the State

must be disclosed to the defendant if known to the prosecution.

See Giglio, 405 U.S. at 153-55.                 Favorable evidence is material

when “there is a reasonable probability that, had the evidence

been   disclosed     to   the    defense,       the   result    of   the    proceeding

would have been different.”               Kyles v. Whitley, 514 U.S. 419,

433-34 (1995) (internal quotation marks omitted).                         A reasonable

probability is one sufficient “to undermine confidence in the

verdict.”    Id. at 435.

            The letter that is the genesis of Smith’s Brady claim

was addressed to the manufacturer of Di-Syston, and a copy was

sent to the prosecutor’s office.                 In it, Dr. Sumner identified

four areas of concern with the prosecution’s theory that Smith


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had introduced the pesticide to his victims by dissolving it in

some Kool-Aid that they later drank.                 Dr. Sumner first observed

that “[t]he time lapsed between ingestion and onset of symptoms

seems unusually long.”            Second, he queried whether Di-Syston is

soluble enough in water to produce a lethal dose in only “a

couple of swallows.”          Third, he questioned whether the “tissue

levels” recorded in Britteny’s autopsy were sufficient to cause

her   death.       And   fourth,    he   wondered     why        the   autopsy   report

omitted      certain       data    pertaining       to      “acetylcholinesterase

determinations.”

             In this appeal, Smith declines to pursue any argument

with respect to the third and fourth concerns outlined in Dr.

Sumner’s letter.         In fact, Smith concedes that Britteny’s death

was caused by Di-Syston poisoning.              Nevertheless, Smith contends

that, if he had known of Dr. Sumner’s hesitations with respect

to    the   time    lapse   and    solubility       issues       identified      in   his

letter, Smith would have pursued those issues more assiduously

and hired an additional expert to further scrutinize them.                             In

essence, Smith contends that he would have been able to raise

enough      uncertainty     about      precisely     how         the   pesticide      was

introduced     to    the     victims     to    support       a     theory   that      the

poisonings were accidental.            As a result, claims Smith, there is

a    reasonable     probability     that,     had   Dr.    Sumner’s      letter       been



                                          5
disclosed to the defense, the jury would have returned verdicts

of not guilty.

               Having thoroughly reviewed the record and the parties’

briefs,    however,         we    cannot     say      that      the    state       MAR     court’s

adjudication of Smith’s Brady claim resulted in a decision that

was contrary to, or involved an unreasonable application of,

Supreme Court precedent, or that was based on an unreasonable

determination of the facts.                  At bottom, the State was under no

obligation to prove that Smith sprinkled Di-Syston into Kool-Aid

as opposed to some other medium.                           On the contrary, the State

needed    only    to    prove       that    Smith       acted     with    malice         and    with

premeditation and deliberation.                      See State v. Coble, 527 S.E.2d

45, 46 (N.C. 2000).                Given that Smith concedes that Di-Syston

killed    Britteny,         Dr.    Sumner’s          letter     is    material       for       Brady

purposes       only    if     further       specificity           about      the    particular

carrier for the pesticide could implicate a third party or show

that the victims were poisoned accidentally.                              Smith argues the

latter,     contending            that,     if       the     State       failed       to       prove

definitively      the       precise       medium      by     which     the    Di-Syston         was

introduced to the victims, the jury could have concluded that

the      pesticide          may     have         been       introduced         accidentally.

Nevertheless,         Smith       never    identifies         precisely        what      type    of

accident he envisions as plausible.                         Indeed, we agree with the

state    MAR    court    that      the     evidence        that      Smith   introduced         the

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pesticide       into    Cotton’s       home       for    the      express      purpose    of

perpetrating lethal harm is “overwhelming,” see MAR Decision 19,

regardless      of     any    residual       lack       of   clarity     regarding       the

particular medium by which the pesticide was introduced to the

victims.

            At the very least, it was certainly within the bounds

of     reason   for     the    state      MAR     court      to    conclude      that    the

nondisclosure of Dr. Sumner’s letter did not deprive Smith of a

verdict that is worthy of confidence.                        See Kyles, 514 U.S. at

435.      Accordingly,        we    affirm      the     district     court.       We     deny

Smith’s pending motion to appoint counsel.                           We dispense with

oral    argument       because      the    facts      and    legal      contentions      are

adequately      presented      in    the     materials         before    the    court     and

argument will not aid the decisional process.

                                                                                  AFFIRMED




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