UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ZANE BROWN HILL,
Petitioner-Appellant,

v.
                                                                     No. 97-13
JAMES B. FRENCH, Warden, Central
Prison, Raleigh, North Carolina;
STATE OF NORTH CAROLINA,
Respondents-Appellees.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-95-284-3-P)

Argued: October 28, 1997

Decided: December 24, 1997

Before WILKINSON, Chief Judge, MURNAGHAN, Circuit Judge,
and PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Harold Johnson Bender, LAW OFFICE OF HAROLD J.
BENDER, Charlotte, North Carolina; Zipporah Basile Edwards,
HORACK, TALLEY, PHARR & LOWNDES, Charlotte, North Car-
olina, for Appellant. Edwin William Welch, Associate Attorney Gen-
eral, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellees. ON BRIEF: Robert C. Stephens,
HORACK, TALLEY, PHARR & LOWNDES, Charlotte, North Car-
olina, for Appellant. Michael F. Easley, Attorney General of North
Carolina, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Zane Hill ("Hill") was convicted by a North Carolina jury of first
degree murder and sentenced to death after he shot and killed his son,
Randall Hill. Following direct appeal and state postconviction pro-
ceedings, Hill sought a writ of habeas corpus in federal district court.
Three issues are presented in this appeal from the district court's
denial of the writ: (1) whether the state judge's failure to recuse him-
self from state postconviction proceedings deprived Hill of a full and
fair fact hearing; (2) whether the prosecution unlawfully suppressed
material exculpatory evidence; and (3) whether trial counsel's perfor-
mance was constitutionally ineffective. We affirm.

The facts relating to the murder are summarized in State v. Hill,
417 S.E.2d 765, 769-71 (N.C. 1992). We do not relate them here
because they are not relevant to the issues presented.

I.

The first question presented for our decision is whether the state
judge's failure to disqualify himself denied Hill a full and fair fact
hearing on his postconviction claims in state court. We hold that it did
not.

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A.

Hill contends that two statements made by the state judge demon-
strated partiality or bias requiring recusal. The judge made the first
comment in the course of ruling on a defense request that different
counsel be appointed to represent Hill on direct appeal. Hill's trial
attorney argued that only independent counsel could adequately deter-
mine whether Hill was effectively represented at trial and sentencing
and, therefore, whether to raise a claim of ineffective assistance on
appeal. The judge denied the request, saying: "I saw no reason during
the course of the trial, from a personal viewpoint, . . . how that could
be raised."

The judge also made an extrajudicial statement to Delores Owen
("Owen"), a former employee of a dry cleaner patronized by the
judge. According to Owen, the judge came into the cleaner's several
days after the conclusion of Hill's trial. When Owen commented that
she felt sorry for Hill, the judge responded: "[a]nybody that their fam-
ily's happy to see them get the death penalty got what they deserved."
After receiving Owen's testimony, the judge stated on the record:
"I'm sure I may have made some comment to Ms. Owens when she
asked me that question, or made that statement."

B.

In reviewing an application for a writ of habeas corpus by a person
in state custody, a federal court must presume the correctness of facts
found by a state court unless the applicant establishes the existence
of a statutory defect in the state proceeding. 28 U.S.C.A. § 2254(d)
(West 1994). One such defect is the failure of the state to afford the
applicant a "full, fair and adequate hearing." Id. § 2254(d)(7). A fed-
eral court may grant an evidentiary hearing to an applicant who did
not receive a full and fair fact hearing in state court. Townsend v.
Sain, 372 U.S. 293, 313 (1963), overruled in part by Keeney v.
Tamayo-Reyes, 504 U.S. 1 (1992). Assuming that the improper denial
of a recusal motion by a state court judge may render that proceeding
unfair, we conclude that recusal was not required in the circumstances
of the instant case.

                    3
In Liteky v. United States, 510 U.S. 540 (1994), the Supreme Court
held that "opinions formed by the judge on the basis of facts intro-
duced or events occurring in the course of . . . prior proceedings, do
not constitute a basis for a bias or partiality motion unless they dis-
play a deep-seated favoritism or antagonism that would make fair
judgment impossible." Id. at 555. Applying that principle to the facts
of the instant case, it is clear that disqualification was not required.*

The judge's comment on the perceived effectiveness of Hill's trial
counsel merely evidenced an opinion based on information properly
within his possession as the presiding judge at Hill's trial. The expres-
sion of a personal opinion in one context is not persuasive evidence
that the judge was incapable of performing his function as a neutral
arbiter in later proceedings. The judge's comment simply did not dis-
play the "deep-seated . . . antagonism" that mandates recusal.

Neither did the judge's comment to Owen display a"deep-seated
antagonism that would make fair judgment impossible." Judges, as a
matter of course, must form opinions and render judgments based on
the evidence that is presented to them. The Supreme Court explained
in Liteky:

           The judge who presides at trial may, upon completion of the
           evidence, be exceedingly ill disposed towards the defendant,
           who has been shown to be a thoroughly reprehensible per-
           son. But the judge is not thereby recusable for bias or preju-
           dice, since his knowledge and the opinion it produced were
           properly and necessarily acquired in the course of the pro-
           ceedings . . . .
_________________________________________________________________
*Liteky applied the federal recusal statute, 28 U.S.C. § 455. Thus, it is
strictly inapplicable to the present case, in which the defendant must suc-
cessfully assert the deprivation of a constitutional right to obtain relief.
Because we find that Hill has failed to meet the more favorable standard
supplied by section 455, however, we also conclude that he has failed to
establish a due process claim. See, e.g. , United States v. Couch, 896 F.2d
78, 81 (5th Cir. 1990) (recognizing that the "statutory disqualification
standard [is] more demanding than that required by the Due Process
Clause.") (collecting cases).

                     4
Liteky, 510 U.S. at 550-51. While it may have been preferable for the
judge to have refrained from sharing his opinion so freely, we do not
believe that recusal was required under the standard set forth in
Liteky.

II.

Hill next alleges that the prosecution failed to disclose material
exculpatory evidence to Hill's trial counsel in violation of Brady v.
Maryland, 373 U.S. 83 (1962). Hill's claim of suppression is without
factual support. The documents allegedly suppressed were in the pros-
ecutor's file. The prosecutor not only provided defense counsel with
documents in her file and made the file available, but literally opened
up the file on her desk and discussed its contents with defense coun-
sel. On those facts, we hold that Hill's Brady claim must fail.

III.

We next consider Hill's claims that trial counsel was constitution-
ally ineffective. Hill challenges the effectiveness of trial counsel on
three grounds. First, Hill has alleged that trial counsel failed to inves-
tigate and present evidence that would have supported a non-statutory
mitigator of childhood abuse. Second, Hill has challenged the ade-
quacy of counsel's preparation of an expert medical witness and deci-
sions not to call other medical experts to testify. Finally, Hill has
assailed the adequacy of counsel's investigation into the circum-
stances surrounding Randall Hill's death and evidence in mitigation.
We address Hill's allegations in sequence.

A.

At the state postconviction hearing, witnesses testified that Hill was
abused as a child by his father. In response to a question by trial coun-
sel in their first interview, however, Hill stated that he had not been
abused. Hill's trial counsel testified that he would have sought corrob-
oration if Hill had disclosed abuse, but would not investigate further
on a client's denial of abuse. The issue before us is whether counsel's
decision not to pursue further investigation of possible childhood
abuse constituted constitutionally deficient representation. We hold
that it did not.

                     5
Hill's claim is foreclosed by Strickland v. Washington, 466 U.S.
668 (1984), and our decision in Barnes v. Thompson, 58 F.3d 971 (4th
Cir.), cert. denied sub nom. Barnes v. Netherland, 116 S. Ct. 435
(1995). Under Strickland, when assessing the constitutional adequacy
of counsel's investigation, we must inquire whether counsel's deci-
sion was "reasonable[ ] in all the circumstances, applying a heavy
measure of deference to counsel's judgments." Strickland, 466 U.S.
at 691. The defendant's own statements may be determinative of the
reasonableness of counsel's decisions:

          Counsel's actions are usually based, quite properly, on . . .
          information supplied by the defendant. In particular, what
          investigative decisions are reasonable depends critically
          upon such information. . . . [W]hen a defendant has given
          counsel reason to believe that pursuing certain investiga-
          tions would be fruitless . . . , counsel's failure to pursue
          those investigations may not later be challenged as unrea-
          sonable.

Id. at 691.

Trial counsel was entitled to assume the truth of Hill's specific
denial of the occurrence of abuse. See Barnes , 58 F.3d at 979-80
(holding that trial counsel "may rely on the truthfulness of his client
. . . in deciding how to pursue his investigation."). Having induced
inaction by his express disavowal of abuse, Hill cannot now challenge
counsel's reliance on that denial in determining how best to allocate
available investigatory resources. Therefore, we hold that counsel's
decision not to seek evidence of childhood abuse did not amount to
constitutionally deficient performance.

B.

Hill's second ineffective assistance claim concerns the adequacy of
counsel's preparation of Dr. Felix, a psychiatrist who testified as an
expert witness for Hill. Hill also challenges counsel's decision not to
call as witnesses Hill's treating physicians and psychiatrist, Drs.
Rardin, Elmore, and Gaworowski. We conclude that counsel's con-
duct did not fall outside "the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689.

                    6
Dr. Felix first examined Hill in July 1990. At the time, Dr. Felix
recommended that additional neuropsychological testing be arranged.
The tests were never performed. When Hill's trial counsel spoke with
Dr. Felix before trial, however, Dr. Felix said he felt prepared to tes-
tify. Counsel raised the issue of further testing, but Dr. Felix stated
that it would not affect his opinion.

Counsel's actions were manifestly reasonable in light of Dr. Felix's
equivocations regarding the additional testing and his assertion that he
was prepared to testify. Hill's claim is without merit.

Next, Hill argues that the defense should have presented testimony
from Dr. Gaworowski, a psychiatrist who treated Hill for alcohol
abuse during three separate admissions and outpatient visits to High-
land Hospital between 1982 and 1988. According to Hill, if called to
testify, Dr. Gaworowski could have explained her diagnosis, admitted
through the testimony of Dr. Felix, that Hill suffered from a "person-
ality disorder with antisocial and passive aggressive features." She
would have testified that "antisocial" meant behavior inappropriate to
Hill's age, not "dangerous" or "criminal." Dr. Gaworowski also would
have stated that Hill had "limited cognitive abilities that could affect
his ability to adequately assess a situation where events happened
quickly, particularly when drinking."

Dr. Gaworowski could also have testified, however, that Hill was
"irresponsible and lacked good judgment" and discussed "behavior
[that Hill's] wife described as cavorting with prostitutes and drag rac-
ing on the public highways." Dr. Gaworowski also would have
observed that Hill competed with his children for the attention of
Bonnie Hill, Hill's wife. Because Dr. Gaworowski's testimony on
Hill's behalf would have opened the door to damaging testimony, we
cannot say that counsel's decision not to call her as an expert witness
was unreasonable.

Finally, Hill claims that counsel was ineffective for failing to con-
tact either of Hill's treating physicians. According to Hill, Dr. Rardin
would have testified that Hill was taking four narcotic drugs,
explained their effect on Hill's mental state, confirmed that Hill was
known to mix alcohol with his medication, and stated that, in combi-
nation, the drugs and alcohol would have clouded Hill's judgment and

                     7
depressed his mental ability. Dr. Elmore would have testified that the
prescription medications taken by Hill can cause flawed judgment and
impaired reflexes, and that consumption of alcohol would have
increased these effects.

Trial counsel decided not to call Dr. Rardin or Dr. Elmore because
counsel did not wish to dwell on Hill's physical disabilities in light
of conflicting testimony about Hill's ability to perform hard physical
labor. Furthermore, Hill's medical records were available to trial
counsel and to Dr. Felix. Dr. Felix testified about the effects of the
prescription drugs Hill was taking and the results of combining such
drugs with alcohol consumption. The testimony of Drs. Rardin and
Elmore would largely have been cumulative. Therefore, we conclude
that trial counsel reasonably decided not to call Drs. Elmore and
Rardin as witnesses.

Hill's remaining claims comprise an attack on the adequacy of
counsel's investigation into the circumstances of the homicide and
evidence in mitigation. After careful consideration of the record, we
conclude that Hill's allegations of constitutional deficiencies are with-
out merit.

In conclusion, we affirm the district court's denial of a writ of
habeas corpus.

AFFIRMED

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