                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-7905


DONALD WAYNE WATERS,

                Petitioner – Appellant,

           v.

HAROLD W. CLARKE, Director of the Virginia Department of
Corrections,

                Respondent – Appellee.

----------------------------------

THE MID-ATLANTIC INNOCENCE PROJECT,

                Amicus Supporting Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Mark S. Davis, District
Judge. (2:11-cv-00630-MSD-DEM)


Argued:   January 29, 2014                 Decided:   March 11, 2014


Before NIEMEYER, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Gregory Dolin, UNIVERSITY OF BALTIMORE SCHOOL OF LAW,
Baltimore, Maryland, for Appellant.     Matthew P. Dullaghan,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.    ON BRIEF: Anna Petrychka, Second Year Law
Student, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, Baltimore,
Maryland, for Appellant.    Kenneth T. Cuccinelli, II, Attorney
General, Aaron J. Campbell, Assistant Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.     Amanda F. Davidoff, Lee Ann Anderson McCall,
Elizabeth A. Cassady, Jared P. Roscoe, Leah S.P. Rabin, SULLIVAN
& CROMWELL LLP, Washington, D.C., for Amicus Curiae.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Donald Wayne Waters appeals the denial of his 28 U.S.C.

§ 2254 petition for habeas corpus relief. We affirm.

                                             I

      Waters     was        indicted       on     charges         of     animate        object

penetration     and     aggravated         sexual        battery        under     Va.    Code

§§ 18.2–67.2     and        -67.3.   The     charges         arise      from    an    alleged

incident that occurred while Waters was working in the four-

year-old victim’s home on a satellite television service call.

The   jury   convicted        Waters    of       aggravated       sexual       battery     but

acquitted him of animate object penetration, and the trial court

sentenced      him     to     a   20-year         term       of   imprisonment.         After

unsuccessfully       pursuing        state       appellate        and    habeas       relief,

Waters filed     a     petition      under       28    U.S.C.     § 2254       asserting   13

claims. The district court denied relief on these claims and

dismissed the petition. On appeal, a circuit judge granted a

certificate     of     appealability         on       four    claims,     see    28     U.S.C.

§ 2253(c), each of which involves allegations of prosecutorial

misconduct.

      Three of these claims (Claims VII-IX) are based on Brady v.

Maryland, 373 U.S. 83, 87 (1963), in which the Court held that

“the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the

                                             3
good    faith    or    bad    faith     of    the    prosecution.”     Evidence   is

“favorable” within the meaning of Brady if it is exculpatory or

impeaching, Skinner v. Switzer, 131 S.Ct. 1289, 1300 (2011), and

it is “material” if “there is a reasonable probability that, had

the evidence been disclosed, the result of the proceeding would

have been different,” Cone v. Bell, 556 U.S. 449, 470 (2009).

       Waters alleged in Claim VII that the prosecutor failed to

disclose a Dish Network “call log” that suggests the victim may

have    accidentally     ordered        a    pay-per-view     pornographic      movie

several months before he visited the victim’s house. The Supreme

Court   of    Virginia       rejected       this    claim,   holding   that   Waters

failed to establish the prosecutor withheld evidence.

       In Claim VIII, Waters alleged that the prosecutor failed to

disclose that law enforcement officers were part of a “sting”

operation with his employer to lure him into Virginia in order

to   arrest     him.   The    Supreme       Court    of   Virginia   rejected   this

claim, holding that Waters failed to establish the prosecutor

withheld evidence or that the evidence is material.

       Waters alleged in Claim IX that the prosecutor failed to

disclose a pretrial email sent by the victim’s mother to the

prosecutor       confirming      that        an     African-American    television

technician had been at the victim’s house prior to the date

Waters (who is white) was there. The Supreme Court of Virginia



                                             4
rejected     this     claim,        finding       that        the     material        is    not

exculpatory.

      Waters’       fourth     claim        (Claim         XII)     is      based     on    the

prosecutor’s closing argument. See generally United States v.

Runyon,     707   F.3d       475,    510     (4th      Cir.         2013)     (noting      that

prosecutorial comments violate due process if they so infect the

trial with unfairness as to make the resulting verdict a denial

of due process). Specifically, Waters alleged that because he

did   not    testify     or     present          any       character        witnesses,     the

prosecutor improperly attacked his character by calling him a

“liar.”     The   Supreme     Court     of       Virginia         rejected     this     claim,

holding that it was barred because Waters did not raise it at

trial or on direct appeal.

                                             II

      The   district     court       conducted         a    thorough        review    of   the

record,     the     parties’        legal     arguments,            and     the     standards

governing § 2254. See Waters v. Clarke, 2012 WL 4498914 (E.D.

Va. 2012) (district court order); see also Waters v. Clarke,

2012 WL 4498916 (E.D. Va. 2012) (magistrate judge report and

recommendation). Among other things, the court considered the

parties’ arguments regarding the scope of the record that was

properly    before    the     Supreme       Court      of     Virginia.       Although      the

court determined that the state court record was limited (as the

Commonwealth argued) to the four exhibits attached to Waters’

                                             5
state habeas petition, it nonetheless analyzed Waters’ claims by

first     considering     only     those       four      exhibits      and      then,

alternatively,       considering    all     of     the    exhibits.     The     court

concluded,   under     both    views,   that     Waters    is   not    entitled   to

habeas relief.

     On    appeal,    Waters     presents    the    same    arguments     he    made

below.    Having     carefully    reviewed       this    matter   de    novo,     see

MacDonald v. Moose, 710 F.3d 154, 159 (4th Cir. 2013), we are

satisfied that the district court correctly resolved the four

claims now before us. Accordingly, we affirm substantially on

the district court’s reasoning.

                                                                          AFFIRMED




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