                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-2


PHILLIP ANTWAN DAVIS,

                Petitioner - Appellant,

           v.

GERALD J. BRANKER, Warden, Central Prison, Raleigh, North
Carolina,

                Respondent - Appellee.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.   Frank D. Whitney,
District Judge. (1:05-cv-00029-FDW)


Argued:   October 28, 2008                 Decided:   January 7, 2009


Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished opinion.       Judge Traxler wrote the
opinion, in which Judge King and Senior Judge Hamilton joined.


ARGUED: Shelagh Rebecca Kenney, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant.         Alana
Danielle Marquis Elder, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee.      ON BRIEF: Thomas K.
Maher, CENTER FOR DEATH PENALTY LITIGATION, Durham, North
Carolina, for Appellant. Roy Cooper, Attorney General of North
Carolina, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
TRAXLER, Circuit Judge:

     Phillip Antwan Davis pleaded guilty to the capital murder

of   his    aunt,     Joyce       Miller,        and   cousin,          Caroline    Miller.

Following a capital sentencing hearing before a North Carolina

jury, Davis was sentenced to death for the murder of Joyce and

to   life    imprisonment         for     the     murder      of        Caroline.       After

unsuccessfully challenging his death sentence on direct appeal

and in state post-conviction proceedings, Davis filed a petition

for a writ of habeas corpus in federal district court.                                 See 28

U.S.C.A. § 2254 (West 2006).               Because the North Carolina Supreme

Court’s     decision       was    not     contrary      to,        or     an   unreasonable

application of established Supreme Court precedents, nor based

on an unreasonable determination of the facts in light of the

evidence presented in the state court, we affirm.



                                            I.

     In     May   1996,    Phillip      Davis      brutally        murdered      his    aunt,

Joyce Miller, and seventeen-year-old cousin, Caroline Miller, in

the home they shared in Asheville, North Carolina.                              Two foster

children, ages two and four, were present in the home when Joyce

was murdered.        Davis was eighteen years old and a senior in high

school at the time.              The circumstances of the crimes, and the

events     leading    up    to    them,     are    described        in     detail   in    the

opinion of the North Carolina Supreme Court:

                                             2
     Approximately   one   week before  the   murders,
[Joyce] told her brother, Billy Davis that she was
missing $800.00. Caroline believed that defendant had
taken the money because he had recently purchased
clothing and a gold chain. [Joyce] obtained a receipt
for the clothes and returned them.       Caroline was
hiding the gold chain from defendant so that she and
[Joyce] could take it to a pawn shop.    Several days
before the murders, defendant stated to Caroline,
“Well, if I don’t get my chain, it’s only going to
hurt you in the long run.”

     On 24 May 1996, defendant shot and killed his
cousin Caroline.   On the same day, he killed [Joyce]
by shooting her and cutting her with a meat cleaver.
[Billy] Davis visited [Joyce’s] home in the evening
and found [Joyce] lying in a pool of blood.    Niconda
Briscoe,    defendant's   girlfriend,    arrived    at
approximately the same time as [Billy] and called for
emergency assistance.

      A paramedic with the Buncombe County Emergency
Medical Service arrived at the Miller residence at
7:32 p.m.    He noted blood smeared on the outside of
the door. He discovered severed fingers on the floor
in the foyer and [Joyce's] body in a large pool of
blood.   The two foster children were in the living
room looking into the foyer. As the paramedic entered
the living room to escort the children out, he
observed Caroline in her bedroom on the bed.    After
checking her pulse, he determined that she, too, was
dead.

     Meanwhile, between 7:30 and 8:00 p.m., defendant
attempted to cash a check in the amount of $360.00,
bearing the name of [Joyce’s] former husband, at the
Bi Lo grocery store on Hendersonville Road.       The
manager refused to cash it, as she did not believe it
was legitimate.   According to the manager, defendant
appeared to be “really calm.”

      At approximately 8:00 p.m., defendant went to
Dillard’s in the Asheville Mall and tried on clothing
in the men’s department.     The sales receipt showed
that defendant purchased six clothing items at 8:08
p.m. for $231.61 using a credit card in [Joyce’s]
name.   When questioned by the cashier, defendant told
her that the credit card belonged to his aunt and that

                          3
she knew he was using it. Two of the items defendant
purchased were identical to the ones [Joyce] had
returned several days prior to the murders.

     At 8:21 p.m., a driver for the Blue Bird Cab
Company was dispatched to the Amoco station on
Hendersonville Highway. A person matching defendant’s
description approached the driver and said, “It’s me.
I'll be with you in a couple minutes.”    He returned
with two bags and asked the driver to take him to
Pisgah View Apartments.

     Defendant entered unit 29-D of Pisgah View
Apartments; showed an acquaintance, Felicia Swinton,
the clothes he had purchased; changed clothes; and
left to attend a party in West Asheville.   He spent
approximately twenty minutes in Swinton’s apartment
and acted “normal.”

     Kendall   Brown  and   Ryan  Mills,  friends  of
defendant’s, heard that [Joyce] and Caroline had been
murdered and went to the party to pick up defendant.
During the ride back to the Miller residence,
defendant asked Brown if it “was ... true about the
murders” and said he “wanted to know what all had
happened.”    When they arrived at the residence,
defendant sat on the curb; started crying; and said,
“Please don't let them take me.”

     Later that evening, Sergeant David Shroat took a
statement from defendant at the Asheville Police
Station. Defendant first told Sergeant Shroat that he
did not know what had happened; then blamed others;
and finally stated, “My life is over; I did it.”

     Defendant described the following series of
events to the detectives.       Earlier in the week,
defendant found a gun in the closet and test-fired it
in the back yard.    At approximately 5:30 p.m. on 24
May 1996, he entered Caroline's bedroom with the gun
in order to get his clothes.     Caroline was lying on
her bed.    He went to the right side of the bed,
pointed the gun at her, and fired twice.       He then
walked around to the other side of the bed and fired a
third shot at her.   After killing Caroline, defendant
ate a sandwich and watched television.          [Joyce]
arrived at the residence at approximately 7:00 p.m.
with the two foster children.     When defendant heard

                           4
her entering, he hid behind the door.       After she
entered, defendant shot her in the back.       He shot
[Joyce] only one time because he had “[n]o more
bullets.”   [Joyce] attempted to reach the telephone,
but defendant pulled the cord from the receptacle.
When she tried to leave the house, he took a meat
cleaver from the kitchen and struck her with it ten or
twelve times with his eyes closed as he stood on top
of her in the foyer.

     Immediately   thereafter,  defendant   placed   his
clothes in a white plastic garbage bag along with the
meat cleaver.    He took two VCRs, one from Caroline's
bedroom and one from [Joyce’s], and put them in
another plastic bag along with [Joyce’s] brown purse.
He also took [Joyce’s] black purse.    At approximately
7:15 p.m., he placed the two plastic bags on the front
passenger floorboard of [Joyce’s] vehicle.     Defendant
then drove to the Asheville Mall, where he used
[Joyce’s] credit cards to purchase clothing.

     From the Asheville Mall, defendant drove to Oak
Knoll Apartments and placed the two plastic bags in
the Dumpster.    He then drove to the Amoco station,
where he threw the black purse and the gun into a
wooded area behind the station. He told the taxi cab
driver whom he had called that he would be there in a
minute, returned to [Joyce’s] vehicle, and retrieved
the shopping bags containing the clothing he had
purchased at Dillard's.

     Defendant left [Joyce’s] vehicle at the Amoco
station and traveled in the taxi to Pisgah View
Apartments, where he changed clothes. He then put the
stolen credit cards and keys to [Joyce’s] vehicle in a
garbage can near Swinton’s apartment. Defendant drove
around downtown Asheville with his friend Kelby Moore
and smoked marijuana.

     At 10:30 p.m., defendant arrived at the party in
west Asheville.   Defendant danced for a while at the
party before Brown and Mills took him to [the Miller]
residence.   Upon completing his statement, defendant
went to sleep under the table in the interview room.

     The autopsy of [Joyce] revealed that she had a
single gunshot wound to the left side of the head,
amputation of two fingers, and fifteen individual and

                           5
       clustered injuries consistent with being inflicted by
       a meat cleaver.     The autopsy of Caroline revealed
       three separate gunshot wounds, one to the head with
       stippling around the entrance wound indicating a close
       range shot; one to the chest; and one to the arm.

            Investigators found that Caroline's bedroom was
       in disarray and that a VCR and television were
       missing. A large amount of cash and some jewelry were
       discovered in a book bag in Caroline’s room.        In
       [Joyce’s] bedroom, drawers had been pulled out and
       items had been dumped on the bed. Investigators found
       an empty jewelry box, a checkbook, and a box of checks
       on the floor.     A second VCR was missing from the
       entertainment center in Miller’s bedroom.     Miller’s
       truck, a red Bravada, was also missing.

            Police officers recovered two VCRs, jewelry,
       clothes, a bloody meat cleaver, and a brown purse
       containing [Joyce’s] bank cards from a Dumpster at the
       Oak Knoll Apartments.       Additionally, they found
       [Joyce’s] credit cards in a trash bag near Pisgah View
       Apartments.   [Joyce’s] Bravada truck, two gloves, a
       black purse, and a Colt .32 revolver with five spent
       casings in the cylinder were discovered near the Amoco
       station.

State v. Davis, 539 S.E.2d 243, 251-53 (N.C. 2000).

       Davis pleaded guilty to two counts of first-degree murder.

At the conclusion of the capital sentencing proceeding, the jury

recommended a sentence of death for the murder of Joyce, based

upon   the     following    aggravating    circumstances:     (1)   that    the

murder   was    committed    by   Davis   while   he   was   engaged   in   the

commission of armed robbery; (2) that the murder was committed

for pecuniary gain; (3) that the murder was especially heinous,

atrocious, or cruel; and (4) that the murder was part of a

course of conduct that included the commission by Davis of other

crimes of violence against other persons.               At least one juror
                                      6
found fifteen of fifty submitted mitigating circumstances, but

no   juror   found   the   existence   of   the   submitted   mitigating

circumstance that Davis had shown remorse for his conduct and

had asked for his family’s forgiveness. 1          The jury found the

mitigating     circumstances     insufficient      to   outweigh    the

aggravating circumstances, and recommended a sentence of death

for the murder of Joyce. 2


     1
       The mitigating circumstances found were (1) that Davis’s
age was mitigating; (2) that Davis pleaded guilty with no plea
agreement or promise of leniency; (3) that Davis cooperated and
disclosed the location of the physical evidence associated with
the crimes; (4) that Davis’s mother suffered from major
depression and drug addiction, so as to render her a neglectful
and frequently absent parent throughout Davis’s childhood and
teenage years; (5) that as a consequence of his mother’s drug
addition, Davis never received any long-term and stable
nurturance from his mother; (6) that Davis was aware of his
mother’s illegal activities, including larceny, shoplifting, and
the purchase and sale of illegal drugs; (7) that Davis’s mother
did not provide proper supervision and guidance for him during
his formative years; (8) that both of Davis’s grandparents died
within one year of each other when Davis was 16 years of age;
(9) that after the death of his grandparents, no person was ever
granted legal custody of Davis; (10) that Davis was on track to
earn his high school diploma; (11) that Davis was accepted by
North Carolina A&T University; (12) that at the end of his
senior year, Davis had applied and been accepted to become a
member of the United States Air Force; (13) that Davis never had
any permanent or even long-term relationship with an appropriate
male role model; (14) that Davis has friends and family members
who still love and support him; and (15) that Davis had a
borderline personality disorder.
     2
       With regard to the murder of Caroline, the jury found as
aggravating circumstances: (1) that the murder was committed by
Davis while engaged in the commission of armed robbery; and (2)
that the murder was part of a course of conduct in which Davis
engaged that included the commission by Davis of other crimes of
(Continued)
                                   7
        On appeal, the North Carolina Supreme Court affirmed the

conviction and imposition of the death sentence for the murder

of Joyce, and the United States Supreme Court denied certiorari.

Davis initiated state post-conviction proceedings in May 2002,

which    were    denied    in   December      2003,    and   the   North     Carolina

Supreme Court denied certiorari.

        Davis   thereafter      filed   his    § 2254    petition      for   federal

habeas     relief.        The   magistrate      judge    issued    a     report   and

recommendation that the petition be denied.                   The district court

agreed    and    issued    an   opinion    denying      relief,    but     granted    a

certificate of appealability on the issue of whether the trial

court    erred    in   excluding    evidence      of    various    correspondence

Davis mailed to his mother while he was awaiting trial.                              We

granted a certificate of appealability on the issue of whether

the trial court erred in submitting, as separate aggravating




violence against other persons.     As mitigating circumstances,
one or more jurors found the same fifteen circumstances found in
Joyce’s case and, additionally, that Davis had no significant
history of prior criminal activity, that Davis had signed a
waiver of his constitutional rights and that Davis had a mental
age   of  fifteen.     The   jury  found  that   the  mitigating
circumstances were insufficient to outweigh the aggravating
circumstances, but that the aggravating circumstances were not
sufficiently substantial to impose the death penalty when
considered with the mitigating circumstances, and recommended a
sentence of life imprisonment.



                                          8
circumstances, that Joyce’s murder was committed in the course

of an armed robbery and for pecuniary gain.



                                               II.

      We review the district court’s denial of federal habeas

relief on the basis of a state court record de novo.                                   See Tucker

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

the state court adjudicated Davis’s claims on the merits, we

review    the     matter         in   light    of    the    limits       on    federal      habeas

review of a state conviction that are imposed by 28 U.S.C.A.

§ 2254(d).        When a habeas petitioner’s constitutional claim has

been “adjudicated 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.A. § 2254(d).

      A state court’s decision is contrary to clearly established

federal     law      under       § 2254(d)      where       it     “applies        a    rule     that

contradicts the governing law set forth” by the United States

Supreme Court or “confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme] Court and

                                                9
nevertheless       arrives     at    a      result        different       from   [that]

precedent.”       Williams v. Taylor, 529 U.S. 362, 405-06 (2000).                    A

state court’s decision involves an unreasonable application of

clearly established federal law “if the state court identifies

the   correct     governing    legal       rule    from    [the    Supreme]      Court’s

cases but unreasonably applies it to the facts of the particular

state prisoner’s case.”             Id. at 407.            Factual determinations

made by the state court “shall be presumed to be correct,” and

“[t]he     applicant     shall      have    the        burden     of   rebutting     the

presumption of correctness by clear and convincing evidence.”

28 U.S.C.A. § 2254(e)(1) (West 2006).

      Finally, even if constitutional error occurs, habeas relief

will only be granted if the trial error “had substantial and

injurious     effect     or    influence          in    determining        the   jury’s

verdict.”       Brecht    v.     Abrahamson,       507     U.S.    619,    637    (1993)

(internal quotation marks omitted).                    However, “[i]f we are in

‘grave doubt’ as to the harmlessness of an error, the habeas

petitioner must prevail.”            Fullwood v. Lee, 290 F.3d 663, 679

(4th Cir. 2002) (quoting O’Neal v. McAninch, 513 U.S. 432, 436

(1995)).      Such “‘[g]rave’ doubt exists when, in light of the

entire record, the matter is so evenly balanced that the court

feels    itself     in   ‘virtual      equipoise’         regarding       the    error’s

harmlessness.”      Id. (quoting O’Neal, 513 U.S. at 435).



                                           10
                                              III.

                                               A.

       We begin with Davis’s claim that his constitutional rights

were       violated    by    the     state    court’s       denial      of   his    motion    to

admit, as mitigating evidence, correspondence that Davis sent to

his     mother,       Phyllis        Davis,    while      he     was     incarcerated        and

awaiting trial for the murders of Joyce and Caroline. 3

                                               1.

       Davis did not testify during the sentencing proceeding, but

he called a number of family members and friends, as well as Dr.

Jerry Noble, the clinical psychologist who evaluated Davis for

trial, to offer testimony in mitigation.                         The evidence included

testimony about Davis’s difficult childhood, his mother’s drug

abuse       and     criminal       activity,        her   accompanying           absence     and

neglect       during      Davis’s       childhood,        and        Davis’s     efforts     and

successes in overcoming this troubled childhood.                               There was also

testimony         about     the    difficulties       Davis     had     experienced        while

living       with    Joyce     and    Caroline,       and      his    remorse      for   having

murdered them.            The North Carolina Supreme Court summarized the

mitigating evidence as follows:




       3
       The correspondence consisted of both letters and cards
with handwritten notes, all of which we refer to as “the
letters.”



                                               11
Defendant’s mother was a drug addict, habitual felon,
and mental patient who could not care for him, and his
father took no responsibility for him.       Since his
childhood, defendant alternated between the homes of
friends   and   relatives   because  his   mother   was
periodically incarcerated or incapacitated. Defendant
was a good athlete, but his parents never attended his
athletic or school events. When he was thirteen years
old, defendant sustained a closed-head injury when he
intervened in an argument between his mother and a
drug addict, who hit defendant with a baseball bat.

     In the summer of 1995, defendant moved in with
[Joyce] and Caroline and obtained a job at a Food Lion
grocery store.    He made the school football team and
stopped working in September when football season
began.   Teammates described defendant as a leader and
a hard worker.    In December of 1995, defendant began
working as a bag boy at a Bi Lo grocery store where he
was described as a good worker.       Defendant’s high
school principal described him as a normal and well-
behaved student. Defendant was “on track” to graduate
from high school, was accepted into North Carolina A &
T State University, and had passed an Air Force
entrance test.

     There was constant rivalry between defendant and
Caroline to the extent that Caroline packed up
defendant’s belongings on more than one occasion.
There was also tension between defendant and his aunt.
On one occasion, [Joyce] pointed a pistol at defendant
and said that when she gave him an order, “she
expected it to be done.”           Witnesses described
defendant as remorseful and noted that he cried
whenever he discussed the murders.

     A   clinical   psychologist,   Dr.   Jerry   Noble,
testified as an expert witness. Dr. Noble performed a
postarrest valuation and determined that defendant’s
basic psychological, emotional, and nurturing needs
had been neglected.    Defendant had an IQ of only 78,
but he never repeated a grade or had any special-
education classes.   According to Dr. Noble, defendant
had four significant mental disorders on 24 May 1996:
(1)    borderline    intellectual    functioning,    (2)
borderline personality disorder, (3) cannabis abuse,
and (4) acute stress disorder.           The borderline
personality    disorder    caused   defendant   to    be
                          12
       emotionally   unstable  and   impulsive  and   to  have
       difficulties in interpersonal relationships.        Dr.
       Noble described defendant as anxious, depressed,
       immature, and prone to unravel during periods of
       stress.   Defendant’s conduct in eating a sandwich and
       watching television after he killed Caroline was
       consistent with acute stress disorder, disassociation,
       and derealization.   According to Dr. Noble, defendant
       could not fully remember, did not understand, and was
       genuinely bewildered about [Joyce’s] death. Following
       the homicides, defendant exhibited suicidal thoughts,
       increased interest in religion, and signs of remorse.

Davis, 539 S.E.2d at 253.

       Phyllis Davis was one of the witnesses called to testify on

Davis’s      behalf,       and    she     offered      extensive        testimony    of    her

neglect      of    Davis       during    his    childhood,      her     absence     from   his

life, and her drug abuse and criminal history.                             Most recently,

Phyllis      testified         that     she     was    arrested    in    April    1996     for

violating         her    probation,        approximately          one    month    prior     to

Davis’s arrest for the murders of Caroline and Joyce.                                She was

sentenced to 300 days in a North Carolina prison.

       In    October       1996,      five      months    after    Davis’s       arrest    but

before Phyllis was released from prison, Davis wrote the first

of several letters to his mother.                            Some of the letters are

postmarked during the time period that Phyllis was imprisoned,

and    others      are     postmarked         after    her    release     from    prison    in

January 1997.           In the letters, Davis wrote that he was sorry for

what    he   had        done    and     asked    for     forgiveness.       He    expressed




                                                 13
interest and concern for his mother’s well-being, as well as his

love for her.

        Davis attempted to introduce the content of the letters,

both by having his mother read them and as separate exhibits, as

additional mitigating evidence “to show the relationship between

Phillip Davis and his mother,” J.A. 335, of his remorse for

having           murdered        Joyce   and     Caroline,      and    to     “corroborate

[Phyllis’s] testimony and the testimony of Dr. Noble.”                                   J.A.

833.        The state objected to the letters as inadmissible, self-

serving hearsay.             Unlike hearsay testimony of statements made by

a defendant in the presence of a testifying witness which are

often       admitted        in    capital      sentencing     proceedings,      the   state

contended that the letters written by Davis were immune from any

type        of    cross-examination         and       were   without   any     indicia     of

reliability or trustworthiness that would counsel in favor of

their admissibility.

        The       trial     court    denied     Davis’s      request   that    Phyllis     be

allowed to read the letters into evidence and to introduce them

as separate exhibits, but the court allowed Phyllis to testify

about their correspondence and her relationship with her son. 4



        4
       The trial court initially denied the request that Phyllis
be allowed to read the letters into evidence, but reserved final
ruling on the admissibility of the letters until the close of
the defendant’s case, at which point the trial court heard
(Continued)
                                                 14
The trial court noted that the letters were written by Davis

after the murders and to his mother, a likely witness on his

behalf, and that Phyllis “was unable to see [Davis] at the time

the   statements     were    written,        and     .    .     .   unable   to    make    any

observation as to his demeanor or attitude or any other conduct

that he might be engaged in at the time he was writing the

letter to her.”      J.A. 834.

      The trial court also ruled that the letters were cumulative

to    the    testimony     of    several        of       the     mitigation       witnesses,

including Phyllis.        Phyllis testified that Davis had written her

from jail, talked to her about his feelings, and “was very sorry

for what he had done to our family.”                           J.A. 353.       Phyllis also

testified that she was able to speak with Davis by telephone

during      this   time     period.          She      testified         that      Davis    had

difficulty talking about the murders and that he cried when he

did speak of them.          After her release from prison, Phyllis was

also able to visit Davis once a month and to talk to him on the

telephone     between     her    visits.        She       testified      that     Davis     was

remorseful     and   that       he   would    “get[]           upset   if    [she]    sa[id]

anything about Joyce or Caroline’s name.”                              J.A. 356.          Davis

would “get real watery-eyed, which, in turn, ma[de her] cry, so



arguments and considered the matter in light of all the evidence
presented.



                                           15
[she] tr[ied] not to talk about it.”              J.A. 356.     As noted by the

trial court, Phyllis was allowed to “testif[y] without objection

that [Davis] expressed his remorse to her in the same letters,”

and “that he had expressed remorse to her in conversations with

her.    She further testified that she had a loving relationship

and that he said he had loved her.”             J.A. 834.

       In addition to Phyllis, a number of additional witnesses,

including family members and friends, testified about Davis’s

expressions      of   remorse    after    the    murders.      Davis’s     brother

testified that he and Davis would cry together during his visits

to the prison and that Davis had demonstrated that he was “sorry

for what he’s done.”            J.A. 746.       Davis’s aunt testified that

Davis wrote her and “asked [her] and the rest of the family to

please forgive him because that is something that he never meant

to happen.”      J.A. 793.       She also testified that Davis told her

he was sorry for what he had done and that she believed he was

remorseful.       Davis’s    cousin      testified    that   she    also   visited

Davis and “believed [Davis] [wa]s remorseful.”                J.A. 804.

       Davis’s   friend,    Ryan   Mills,       testified    that   when   he   and

Davis got to the Miller home after the murders, Davis “sat down

on the curb and cried.”            J.A. 223.         Another friend testified

that Davis cried during their telephone call, “stated he wished

he had not done what he had done that night,” and “was very

upset about it.”        J.A. 121.        Colonel Roy Parker, a teacher at

                                         16
Davis’s high school, testified that Davis “was in tears” when

they visited.      J.A. 525.         Parker testified that Davis “seemed to

be   very     saddened    by    what    he    had    done    and    everything       else

associated with it, as you would expect from somebody in that

position.”       J.A. 525.      Sandra Darity, whom Davis described as a

second mother to him, testified that Davis wrote her that “his

mother is sticking with him now when he needs her most,” J.A.

702, and “that he loves her for that,” J.A. 703.                          He also told

Darity that he was praying for her and her family, asked Darity

to pray for him, and told Darity that he was “still the same

Phillip that used to spend the night all the time.                                I can’t

believe I did this.”            J.A. 703.         He also told Darity that “‘I

made a mistake by putting myself here, but a good mother might

have    helped    prevent      it,   also.’”        J.A.    705.        Davis’s    former

principal, Richard Green, testified that he visited Davis two or

three times and each time Davis told him that he was sorry for

what he had done and “appeared to be remorseful.”                            J.A. 829.

Green    testified       that    he    “sincerely          th[ought]      [Davis     was]

remorseful over what happened to Caroline and Joyce Miller.”

J.A. 832.        Reverend Carson Moseley also talked to Davis about

the murders and testified that “[w]henever [Davis] talks about

what happened, it’s with tears.                   He’s very emotional at that

point,   so    there’s    not    a    lot    of   talk     about   it    other    than   I



                                             17
believe regret [is] in his heart.            Very emotional whenever we’ve

spoken about it.”      J.A. 810.

       Finally, Dr. Noble testified that he saw “signs of remorse”

in Davis, as well as mental disorders consistent with one who

“feels guilt, anxiety, depression, remorse about his actions.”

J.A. 649.         Dr. Noble testified that Davis had problems with

“suicidal thinking since the homicides” and “some trouble with

sleep, with nightmares, with instrusive detailed images about

these deaths.”        J.A. 649.         He saw “signs of remorse in his

increased    interest       in   religious   pursuits,”    “a    statement   to

police of remorseful emotions,” and “indications of remorse in

some of his test results.”           J.A. 649.     Dr. Noble also read to

the jury the responses given by Davis that Dr. Noble believed

were indicative of remorse, as follows:

       “I want to know how I got myself into such a mess.” “I
       regret even being born.” “I feel that my life is
       over.” “I suffer when I think or dream about what I’ve
       done.” “I’ve failed in life.” “What pains me is the
       thought of what I’ve done, and I regret doing it.” “I
       wish I was never born.”

J.A. 650.

       On appeal, the North Carolina Supreme Court affirmed the

trial court’s exclusion of the letters from evidence because

they     lacked     sufficient     indicia    of   reliability      and   were

cumulative    of    other    evidence    introduced   by   the   defendant   at

trial.     See Davis, 539 S.E.2d at 260 (noting that “while the


                                        18
rules of evidence do not apply in a sentencing proceeding, the

trial judge still must determine the admissibility of evidence

subject to general rules excluding evidence that is repetitive

or unreliable”); see also State v. Raines, 653 S.E.2d 126, 137

(N.C.    2007)        (“[W]hile   the   Rules       of   Evidence     only    serve    as

guidelines in capital penalty proceedings, the trial court may

properly      exclude      hearsay      statements         which     lack    sufficient

indicia    of    reliability       or   lack   a    proper    foundation.”).          The

court noted, for example, that Davis had presented evidence of

his relationship with his mother and that a number of family and

friends had testified that Davis “constantly cried and expressed

remorse about what he had done when they visited him during his

incarceration.”           539 S.E.2d at 261.               In addition, the court

noted    that    there     was    “evidence    in    the    record    that   defendant

frequently cried during the capital sentencing proceeding.”                           Id.

(emphasis added).          The court concluded

        that the letters would have offered substantially the
        same evidence as the testimony of defendant’s mother
        and other witnesses. Defendant was allowed to present
        to the jury evidence of remorse and of a loving
        relationship with his mother.      In any event, the
        letters were unreliable in that they were written by a
        defendant facing a capital sentencing proceeding to a
        likely witness in the proceeding.    As such, we hold
        that the trial court properly excluded the letters as
        cumulative and unreliable.

Id.      In     the    alternative,     the    court       held    that,    “[a]ssuming

arguendo that the trial court erred in excluding the letters


                                          19
from   evidence,   such   error      was       harmless   beyond    a    reasonable

doubt.”     Id. (citing N.C. Gen. Stat. § 15A-1443(b); State v.

Jones, 451 S.E.2d 826, 848 (N.C. 1994)).

                                          2.

       In these federal habeas proceedings, Davis asserts that the

state court’s exclusion of the letters impermissibly restricted

his    constitutional     right      to        present    mitigating     evidence,

contrary to the Supreme Court’s rulings in Lockett v. Ohio, 438

U.S. 586 (1978) (plurality opinion), and its progeny.                         Davis

also   relies   upon    the    Supreme     Court’s       decision   in    Green   v.

Georgia, 442 U.S. 95 (1979) (per curiam), asserting that the

state trial court erred in applying its evidentiary rules to

exclude the letters as additional evidence of remorse.                            We

disagree.

       Under the Eighth and Fourteenth Amendments to the United

States    Constitution,       in   order       to   constitutionally     impose   a

capital   sentence,     the    sentencer        may   “not   be   precluded   from

considering as a mitigating factor, any aspect of a defendant’s

character or record and any of the circumstances of the offense

that the defendant proffers as a basis for a sentence less than

death.”     Lockett, 438 U.S. at 604.                 In Lockett, the Supreme

Court declared an Ohio death penalty statute unconstitutional

because it specified only three factors that could be considered

by the sentencer in mitigation of the offense.                    See id. at 608.

                                          20
In Eddings v. Oklahoma, 455 U.S. 104 (1982), the Court extended

Lockett to a case in which the state court refused to consider,

as a matter of law, any mitigating evidence of the defendant’s

violent family history and abuse.                See id. at 112-13.          “Just as

the   State    may    not     by    statute      preclude    the     sentencer     from

considering any mitigating factor,” the Court held, “neither may

the   sentencer      refuse    to    consider,     as   a    matter    of   law,    any

relevant mitigating evidence.”              Id. at 113-14; accord Skipper v.

South Carolina, 476 U.S. 1, 6-8 (1986) (reversing imposition of

death sentence where trial judge excluded as irrelevant evidence

of the defendant’s good behavior in jail awaiting trial).

      In Green v. Georgia, the Supreme Court held that that the

Due Process Clause of the Fourteenth Amendment may require the

admission     of   mitigating       evidence     even   if   state    law   rules    of

evidence would exclude it.            There, the Court reversed the death

sentence based upon the trial court’s application of Georgia’s

hearsay     rule     to   prohibit      a     witness’s      testimony      that    the

defendant’s accomplice in the capital murder had confessed to

shooting and killing the victim after ordering the defendant to

run an errand.        See Green, 442 U.S. at 96-97.                In doing so, the

Court held that “[t]he excluded testimony was highly relevant to

a critical issue in the punishment phase of the trial” and that

“substantial reasons existed to assume its reliability.”                       Id. at



                                            21
97 (citing Lockett, 438 U.S. at 604-05).                      In particular, the

Court noted that:

        [the accomplice] made his statement spontaneously to a
        close   friend.      The  evidence  corroborating   the
        confession was ample, and indeed sufficient to procure
        a conviction of [the accomplice] and a capital
        sentence.    The statement was against interest, and
        there was no reason to believe that [the accomplice]
        had any ulterior motive in making it.      Perhaps most
        important,    the   State  considered   the   testimony
        sufficiently    reliable  to   use  it   against   [the
        accomplice], and to base a sentence of death upon it.

Id. at 97.       In light of “these unique circumstances,” the Court

held, “the hearsay rule may not be applied mechanistically to

defeat    the    ends   of   justice.”         Id.    (internal    quotation     marks

omitted); see also Fullwood, 290 F.3d at 693 (noting that “under

certain circumstances, ‘the Due Process Clause of the Fourteenth

Amendment may require the admission of mitigating evidence even

if state-law rules of evidence (e.g., hearsay) would exclude

it’” (alteration omitted) (quoting Boyd v. French, 147 F.3d 319,

326 (4th Cir. 1998)).

        As we have previously held, however, neither Lockett and

its progeny nor Green compel the conclusion that a state court

is required to present a capital jury with any evidence the

defendant       proffers     as   mitigating,        no   matter   how   irrelevant,

unreliable, or cumulative, or that a state’s normal evidentiary

rules    must    always      yield   to   allow      the   introduction     of    such

evidence:


                                          22
       [T]he principles developed in Lockett and Eddings do
       not eviscerate all state evidentiary rules with
       respect to mitigating evidence offered in capital
       sentencing proceedings.   For example, the application
       of the hearsay rule to exclude evidence offered in
       mitigation of the death penalty is clearly not a per
       se constitutional violation.     It is permissible to
       exclude on hearsay grounds mitigating evidence which
       is “only [of] cumulative probative value.”

Fullwood, 290 F.3d at 693 (citations and alteration omitted)

(quoting Buchanan v. Angelone, 103 F.3d 344, 348-49 (4th Cir.

1996)); see also Hutchins v. Garrison, 724 F.2d 1425, 1437 (4th

Cir. (1983) (“We find no indication that Eddings and Lockett

preempt all state rules of evidence.                        Both cases speak about

types of evidence, not evidentiary rules.”); cf. Lockett, 438

U.S. at 604 n.12 (noting that the opinion did not “limit[] the

traditional     authority    of    a    court        to    exclude,      as   irrelevant,

evidence not bearing on the defendant’s character, prior record,

or     the   circumstances    of       his        offense”).        In    Buchanan,    we

explicitly rejected a defendant’s claim that the trial court

impermissibly excluded hearsay testimony offered by his expert

mental health witness for the purpose of providing additional

support for the conclusion that the defendant had acted under

extreme      emotional    stress,       because           the    expert’s     “testimony

provided     ample   evidence      to        explain       his    opinion”     and    “the

statements would have had only cumulative probative value.”                           103

F.3d    at   349.    We     also    noted          that    the    excluded     testimony

“lack[ed] the inherent reliability of the statement excluded in

                                             23
Green,” which had been “against the declarant’s penal interest,

made spontaneously to a close friend, and . . . relied [upon by

the state] to convict the declarant of capital murder.”                                   Id.

        In this case, the state court, having heard the testimony,

observed      the    witnesses,       and    reviewed         the    letters,         similarly

ruled    that     the     letters     were    cumulative            to    the   ample           other

evidence of remorse.                In addition, the court ruled that the

letters, having been written by Davis while awaiting trial on

the     capital      murder    offenses       and        to    his       mother,      a     likely

mitigation        witness      on     his     behalf,          lacked       the       requisite

reliability         or    trustworthiness         to      render         them   critical          or

admissible under its rules of evidence.                         We cannot say that the

trial    court’s         decision,    as    affirmed          by   the     state      appellate

court, was contrary to, or an unreasonable application of the

clearly established Supreme Court precedents discussed above, or

that the state court’s factual determination was unreasonable in

light    of   the    evidence        presented      to    it.        There      was       abundant

testimony regarding Davis’s remorse and his relationship with

his mother, much of which pertained to statements Davis made

directly to the testifying witnesses who were in a position to

evaluate his tone of voice and, in some cases, to observe his

demeanor.       Davis was not precluded from offering any type or

category of mitigating evidence, and the letters were only of

cumulative probative value.                  Additionally, the content of the

                                             24
letters, which is self-serving, does not rise to the level of

the critical relevancy of the accomplice’s confession in Green,

nor bear upon its “inherent reliability.”                      Buchanan, 103 F.3d at

349.      Indeed,          the     Court    in     Green,     in     ruling       that      the

accomplice’s      confession         was    improperly       excluded       there,     placed

decided emphasis upon the fact that the confession bore the very

indicia of reliability that the state court found lacking in the

letters offered in this case.                See Green, 442 U.S. at 97.                  While

we might have decided the question of reliability differently

were we presented with it ab initio, we cannot say that the

ruling of the state trial court was an unreasonable one.

                                             3.

       Finally, we note that the North Carolina Supreme Court held

that,   even     assuming        error,     the    exclusion    of       the    letters     was

harmless beyond a reasonable doubt.                     See Davis, 539 S.E.2d at

261    (citing      N.C.    Gen.     Stat.    § 15A-1443(b)          (“A       violation     of

defendant’s rights under the Constitution of the United States

is    prejudicial     unless       the     appellate    court      finds       that    it   was

harmless beyond a reasonable doubt.                      The burden is upon the

State to demonstrate, beyond a reasonable doubt, that the error

was    harmless.”)).             Applying    the    Brecht    harmlessness            standard

applicable     in    federal       habeas     proceedings,         the     district      court

ruled that Davis had failed to show that the exclusion of the

letters had a “substantial and injurious effect or influence” on

                                             25
the   outcome   of   Davis’s   sentence.     Brecht,     507   U.S.   at   637

(internal quotation marks omitted).        We agree. 5

      As pointed out by the district court, the circumstances of

Joyce’s murder were particularly gruesome and the circumstances

surrounding it, chilling.        After killing Caroline, Davis ate a

sandwich and watched television for an hour, lying in wait for

Joyce to come home.       When Davis heard Joyce approach, he hid

behind the door and, as she entered her home, shot her in the

back.     As Joyce struggled to reach the telephone, Davis ripped

the cord from the wall.        Finding himself out of bullets, Davis

then retrieved a meat cleaver from the kitchen and struck Joyce

with it fifteen times to finish the task.          And he did so in the


      5
       In his appeal to the North Carolina Supreme Court, Davis
acknowledged that he had only specifically argued that the
letters were relevant “to show and explain his relationship with
his mother, to show remorse, and to corroborate Phyllis’[s] and
other testimony,” J.A. 934 (internal quotation marks omitted),
but attempted to argue a host of additional reasons why the
trial court should have admitted the evidence.      The appellate
court   obviously   rejected   these   eleventh-hour   arguments,
specifically noting that “[i]n the present case, defense counsel
[had] requested that [Phyllis] be allowed to read the letters to
the jury and proffered the exhibits as evidence tending to show
defendant’s remorse and relationship with his mother,” Davis,
539 S.E.2d at 260, and ruling “that the letters would have
offered substantially the same evidence as the testimony of
defendant’s mother and other witnesses . . . of remorse and of a
loving relationship with his mother,” id. at 261.         Davis’s
similar attempts to expand his claim on federal habeas are
barred and, in any event, we too have concluded that the
exclusion of the letters, even if error, was harmless under the
Brecht standard.



                                    26
presence of two young children whom Joyce had brought home with

her.

       As also noted by the district court, “Davis’s actions in

the immediate aftermath of that murder appeared anything but

remorseful.”        J.A. 1018.       His first order of business was to go

shopping with Joyce’s money, checks, and credit cards, and, more

specifically, to return to Dillard’s to repurchase the items of

clothing that Joyce had just returned and which had apparently

brought about, at least in part, his murderous plan.                            With his

purchases in hand, Davis then went to a friend’s home to change

clothes and show off his new purchases, all the while acting

calmly   and     normally    to     those    he   encountered.          He    spent      the

remainder      of   the     evening     cruising,        smoking      marijuana         with

friends, and dancing at a nearby party until his friends found

him and returned him to the crime scene.

       In contrast to this aggravating evidence, Davis’s jury was

presented       with   substantial          evidence      of    Davis’s       difficult

childhood, as well as his attempts to overcome this disadvantage

and    the    assistance     he    received       from   family       members      in    his

attempts to do so.           The jury also heard numerous accounts by

friends,      family   members,      and    clergy,      as    well    as    the   mental

health       professional    who      evaluated      Davis,      regarding         Davis’s

personal       expressions     of     remorse      for    having       committed         the

murders.       And, the jury was able to personally observe Davis’s

                                            27
demeanor,        including       his        crying       during       the        proceeding.

Ultimately, the jury found as an aggravating circumstance that

the    murder    of    Joyce    was    “especially         heinous,         atrocious     and

cruel,” an aggravating circumstance not submitted for Caroline’s

murder, and imposed the death sentence for Joyce’s murder.

       Given the strength of the aggravating evidence presented in

Joyce’s case, compared to the relative weakness of the admitted

and excluded evidence of Davis’s relationship with his mother

and of his remorse for the murder of his aunt, we agree with the

district court’s determination that Davis failed to demonstrate

that    the     exclusion      of     the    letters      had     a   substantial         and

injurious effect or influence on the outcome of the sentencing

proceeding.       Therefore, even if we assume that the trial court’s

exclusion of the letters violated Davis’s constitutional right

to introduce mitigating evidence, he is not entitled to federal

habeas relief as a result of the error.

                                             B.

       Davis’s    second       argument      arises      from     the    trial      court’s

decision to submit, as separate aggravating circumstances, that

the murder of Joyce was committed while Davis was engaged in the

commission       of    armed    robbery,          see    N.C.     Gen.      Stat.    § 15A-

2000(e)(5),      and    that    the    murder      was    committed         by    Davis   for

pecuniary gain, see N.C. Gen. Stat. § 15A-2000(e)(6).



                                             28
      After murdering Caroline and Joyce, Davis stole two VCRs,

the keys to Joyce’s car, Joyce’s purses containing bank cards

and credit cards, and personal checks, and fled the scene with

the   stolen   items   in    Joyce’s      vehicle.           Within       an    hour,    he

attempted to cash a $360 check at a grocery store and purchased

six items of clothing at a department store using Joyce’s credit

card.    Some of those items of clothing were identical to those

that Joyce had returned under the apparent belief that Davis had

purchased them with money he had stolen from her.                              Davis then

drove to Oak Knoll Apartments, where he discarded the VCRs in a

dumpster, and to an Amoco gas station, where he abandoned the

car and discarded his aunt’s black purse.

      Under    North   Carolina      law,      “it    is    error     to    submit      two

aggravating circumstances when the evidence to support each is

precisely the same,” but “where the aggravating circumstances

are supported by separate evidence, it is not error to submit

both to the jury, even though the evidence supporting each may

overlap.”      State   v.    East,   481       S.E.2d      652,    664     (N.C.   1997).

Based upon the evidence submitted in Davis’s case, the trial

court found that submission of both the armed robbery and the

pecuniary gain aggravating circumstances was appropriate because

each was supported by separate evidence.                   To further channel the

jury’s   consideration       of   these     aggravating           circumstances,        the

court    instructed    the    jury    that      the     evidence         regarding      the

                                          29
checks, money, and credit cards could be considered for purposes

of    the    pecuniary        gain     circumstance,           whereas          the    evidence

regarding the keys, vehicle, and VCRs could be considered for

purposes of the armed robbery circumstance.                                The trial court

rejected      Davis’s         contention        that         this        amounted      to     the

impermissible       submission        of    double      or    duplicative          aggravating

circumstances       and,      thereby,      skewed      the       process       in    favor    of

death.      The Supreme Court of North Carolina affirmed, concluding

that the two distinct aggravating circumstances presented were

based upon sufficient, independent evidence and did not violate

Davis’s constitutional rights.                 See Davis, 539 S.E.2d at 270.

      In    these      proceedings,         Davis      does       not      claim      that     the

evidence was insufficient to support the separate aggravating

circumstances.           Rather,      Davis     asserts        that       the    state       court

arbitrarily     divided        the    evidence         so    as     to    support      the     two

separate aggravating circumstances and that this division did

not   represent     different         aspects     of        Davis’s      character       or    the

circumstances       of        the     crimes      he        committed       that       evening.

Contending that the aggravating circumstances are duplicative,

Davis argues that their joint submission was the equivalent to

submitting        an       invalid          aggravating             circumstance              that

unconstitutionally skews the weighing process in favor of death.

See Stringer v. Black, 503 U.S. 222, 232 (1992) (“[W]hen the

sentencing     body      is    told    to    weigh      an    invalid       factor       in   its

                                             30
decision, a reviewing court may not assume it would have made no

difference if the thumb had been removed from death’s side of

the scale.        When the weighing process itself has been skewed,

only constitutional harmless-error analysis or reweighing at the

trial     or     appellate       level   suffices       to    guarantee      that    the

defendant received an individualized sentence.”).

      In Jones v. United States, 527 U.S. 373 (1999) (plurality

opinion), however, the Supreme Court declined the opportunity to

equate    duplicative      aggravating        factors    to    invalid      aggravating

factors.         There,   the     defendant    argued        that    two   nonstatutory

aggravating factors found by the jury were duplicative, vague

and     overbroad,        in     violation      of      the     Eighth      Amendment.

Specifically, the jury had unanimously found (1) victim impact

evidence (i.e., the victim’s personal characteristics and the

effect of the instant offense on her family); and (2) victim

vulnerability evidence (i.e., the victim’s young age, her slight

stature, her background, and her unfamiliarity with San Angelo,

Texas).        Because personal characteristics necessarily included

those things included in the victim vulnerability charge, the

defendant      argued     that    charging     both   impermissibly         skewed   the

process     in    favor    of     a   death    sentence.            In   rejecting   the

challenge, a plurality of the Court noted that:

      We have never before held that aggravating factors
      could   be   duplicative  so  as   to  render  them
      constitutionally invalid, nor have we passed on the

                                          31
    “double counting” theory that the Tenth Circuit
    advanced in [United States v.] McCullah[, 76 F.3d 1087
    (10th Cir. 1996)] and the Fifth Circuit appears to
    have followed here.    What we have said is that the
    weighing process may be impermissibly skewed if the
    sentencing jury considers an invalid factor.       See
    Stringer   v.  Black,   503  U.S.  222,   232  (1992).
    Petitioner’s argument (and the reasoning of the Fifth
    and Tenth Circuits) would have us reach a quite
    different proposition – that if two aggravating
    factors are “duplicative,” then the weighing process
    necessarily is skewed, and the factors are therefore
    invalid.

Id. at 398 (emphasis added) (footnote omitted).              However, the

plurality declined to answer the question of whether duplicative

factors, as opposed to an invalid factor, necessarily skew the

process in favor of death.        Rather, it ruled that “the factors

as a whole were not duplicative – at best, certain evidence was

relevant to two different aggravating factors” and that “any

risk that the weighing process would be skewed was eliminated by

the District Court’s instruction that the jury should not simply

count the number of aggravating and mitigating factors and reach

a decision based on which number is greater but rather should

consider the weight and value of each factor.”             Id. at 399-400

(internal quotation marks and alteration omitted).

     Here, the trial court relied upon North Carolina law, which

allows   the   submission   of   aggravating   circumstances    that   are

supported by separate evidence, see East, 481 S.E.2d at 664, and

submitted both aggravating circumstances to the jury with the

appropriate    explanation.        In    addition,   the    trial   court

                                    32
specifically instructed the jury not to merely add up the number

of aggravating circumstances against the number of mitigating

circumstances:

       You should not merely add up the number of aggravating
       circumstances and mitigating circumstances.       Rather,
       you must decide from all the evidence what weight to
       give   to   each  circumstance   and   then   weigh   the
       aggravating   circumstances   so   valued   against   the
       mitigating   circumstances   so   valued,   and   finally
       determine whether the mitigating circumstances are
       insufficient     to     outweigh     the      aggravating
       circumstances.

J.A. 884-85.

       Given the Supreme Court’s opinion in Jones, we cannot say

that       the    state     trial   court’s     decision    to    submit    both    the

pecuniary gain circumstance and the armed robbery circumstance

was contrary to or an unreasonable application of Supreme Court

precedent. 6           In   addition,    we     do   not   view   the    aggravating

circumstances          as   duplicative.         Although    in   some     cases    the

evidence may only be susceptible of the conclusion that an armed

robbery          was   attempted    or   effectuated        for   pecuniary        gain,

       6
       Davis’s reliance upon our decision in United States v.
Tipton, 90 F.3d 861 (4th Cir. 1996), and its reliance upon the
Tenth Circuit’s decision in McCullah are misplaced.         Our
decision in Tipton predates the Supreme Court’s decision in
Jones and, in any event, we do not evaluate whether the state
court’s determination is contrary to or an unreasonable
application of our precedent in federal death penalty cases.
See Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008). Rather,
we review the ruling to determine whether the decision is
contrary to or an unreasonable application of Supreme Court
precedent. See id.; 28 U.S.C.A. § 2254(d).



                                           33
pecuniary gain is not an element of the offense of robbery and

armed   robbery    is     not    necessarily     synonymous     with      a   goal   of

achieving    pecuniary      gain.        Indeed,      there   are     a    number    of

scenarios in which material items may be taken in the course of

an armed robbery and murder for reasons wholly unrelated to the

desire for pecuniary gain, such as to escape, avoid detection,

or implicate another person in a murder.                      In this case, the

evidence was clearly susceptible to the conclusion that there

were, in fact, two independent aggravating circumstances:                         Davis

took the car and VCRs (which were quickly abandoned) not for

pecuniary gain, but rather to make the murders appear to be

related to a random armed robbery or to implicate others (which

he, in fact, attempted to do when he was questioned by the

police), whereas Davis’s immediate attempts to cash a check and

his   use   of    Joyce’s       credit   card    to   purchase      clothing      were

consistent with a separate intent to benefit financially from

his crime.       While there may be some overlap, the aggravating

circumstances were sufficiently independent to justify separate

submissions to the jury for its consideration.                   Here, the trial

court   divided     the     evidence     in     accordance     with       state   law.

However, as was the case in Jones, “at best, certain evidence

was relevant to two different aggravating factors” and “any risk

that the weighing process would be skewed was eliminated by the

District Court’s instruction that the jury should not simply

                                         34
count the number of aggravating and mitigating factors and reach

a decision based on which number is greater but rather should

consider the weight and value of each factor.”                Id. at 399-400

(internal quotation marks and alteration omitted).               Accordingly,

Davis is not entitled to federal habeas relief on this basis.



                                       IV.

     For the foregoing reasons, we affirm the district court’s

grant   of   summary   judgment   to    the    state.      Because   the   North

Carolina Supreme Court’s decision was not contrary to, or an

unreasonable      application      of        established      Supreme      Court

precedents, nor based on an unreasonable determination of the

facts in light of the evidence presented in the state court,

Davis is not entitled to federal habeas relief.

                                                                     AFFIRMED




                                       35
