UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BOBBY LEE HARRIS,
Petitioner-Appellant,

v.
                                                                     No. 98-34
JAMES FRENCH, Warden, Central
Prison, Raleigh, North Carolina,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-97-542-5-HC-BR)

Argued: June 8, 1999

Decided: July 14, 1999

Before ERVIN, HAMILTON, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Daniel Kanin Shatz, Durham, North Carolina, for Appel-
lant. Edwin William Welch, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Mark E. Edwards, Durham,
North Carolina, for Appellant. Michael F. Easley, Attorney General
of North Carolina, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

In 1992, following a trial by jury in North Carolina superior court,
Bobby Lee Harris was convicted of first-degree murder, robbery with
a dangerous weapon, second-degree burglary, larceny, and possession
of a stolen weapon. Harris was sentenced to death for his murder con-
viction and sentenced to 100 years imprisonment for the remaining
convictions. In 1994, Harris appealed his murder conviction and death
sentence to the North Carolina Supreme Court as a matter of right.
The North Carolina Supreme Court affirmed his conviction and sen-
tence in a published opinion. See State v. Harris, 449 S.E.2d 371
(N.C. 1994). The United States Supreme Court denied certiorari on
May 1, 1995. See Harris v. North Carolina, 514 U.S. 1100 (1995).
Harris then sought post-conviction relief in the state courts of North
Carolina by initiating a motion for appropriate relief (MAR) in 1996.
The state superior court denied the MAR, and the North Carolina
Supreme Court denied Harris's subsequent petition for a writ of cer-
tiorari. Then, in 1997, Harris filed a habeas petition in the United
States District Court for the Eastern District of North Carolina. See
28 U.S.C.A. § 2254 (West Supp. 1999). The State of North Carolina1
responded by filing a motion for summary judgment, which the dis-
trict court granted and dismissed the petition. Harris now appeals the
district court's judgment to this Court.

On appeal, Harris presents five issues: (1) whether the district court
erred in refusing to consider affidavits offered in support of the
habeas petition; (2) whether the district court erred in not allowing an
evidentiary hearing on claims of ineffective-assistance-of-trial-
counsel; (3) whether the district court erred in not allowing an eviden-
_________________________________________________________________
1 Harris named James French, Warden of the Central Prison, Raleigh,
North Carolina, where Harris is incarcerated, as Respondent. For ease of
reference we refer to French as "the State" or"North Carolina."

                    2
tiary hearing on claims of ineffective assistance of appellate counsel;
(4) whether the district court erred in determining that the state
courts' denial of Harris's motion to suppress his confession consti-
tuted a reasonable application of Supreme Court precedent; and (5)
whether the district court erred in treating several issues not raised on
direct appeal as procedurally defaulted. For the reasons that follow,
we affirm.

I.

We take the undisputed facts of this case from the decision of the
North Carolina Supreme Court in State v. Harris , 449 S.E.2d 371,
373-74 (N.C. 1994):

           The evidence at trial tended to show that the defendant,
          Bobby Lee Harris, and Joe Simpson were employed by the
          victim, John Redd, in his fishing business. For several days,
          the defendant and Simpson discussed the possibility of steal-
          ing the victim's truck and driving to Georgia. On the night
          of 20 August 1991, the three men went fishing around 11:00
          p.m. According to the defendant's confession, the plan was
          for the defendant to restrain Redd while Simpson bound
          him. They were then going to rob him and leave him on the
          shore. The defendant, Simpson, and Redd had been drinking
          during the evening and for whatever reason (the defendant
          blamed Redd's "griping"), the defendant stabbed Redd with
          Redd's knife rather than merely restraining him. Redd was
          robbed of his wallet containing approximately $80.00 and of
          his keys, then was either thrown from the boat or placed on
          a pile of oyster shells. Shortly after dumping Redd, and as
          the defendant and Simpson were returning to the dock
          around 2:30 a.m., they were stopped by a game warden and
          cited for traveling without running lights. After returning the
          boat to its dock, the defendant and Simpson took the vic-
          tim's truck, drove to the victim's house, used the victim's
          keys and entered the house. They searched for and found the
          victim's .12-gauge shotgun and a .22 pistol, both of which
          they took. Taking some beer from the house, the two men
          left the house and drove to Georgia. The defendant and

                     3
Simpson surrendered to Georgia authorities on 23 August
1991 after learning of Redd's death.

 The victim was stabbed three times in the back. He was
found on a pile of oyster shells along Bear's Inlet around
6:15 a.m. He was transported to the Naval Hospital at Camp
Lejeune and died on the operating table around noon, but
not before identifying the defendant and Simpson as his
assailants. The cause of death was exsanguination, bleeding
to death. The victim's blood alcohol level was the equiva-
lent of .263 on the breathalyzer test.

....

 [Harris] and Joe Simpson surrendered to the sheriff's
department of Haralson County, Georgia. Lt. Mack Whitney
of the Onslow County Sheriff's Department and three other
law enforcement officers went to Haralson County, Georgia,
to return the two men to North Carolina. On the morning of
27 August 1991, Lt. Whitney met the defendant at the
Haralson County Jail. Lt. Whitney fully advised the defen-
dant of his rights pursuant to Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant
said he wanted an attorney and no interrogation of the
defendant was had at that time. The defendant signed a form
acknowledging that he had been fully advised of and under-
stood his rights. The defendant volunteered the information
that Mr. Redd's shotgun was at the home of Joe Simpson's
grandmother with whom the two men had been staying
while they were in Georgia. Lt. Whitney retrieved the shot-
gun and returned it to North Carolina.

 Lt. Whitney and an SBI agent brought the defendant and
Joe Simpson back to Jacksonville and put them in the Ons-
low County Jail on the evening of 27 August 1991. During
the evening, Sheriff Brown allowed the defendant's brother
to visit the defendant. The defendant's brother then came to
the sheriff's office and told the sheriff that the defendant
wanted to talk to him.

          4
           The sheriff had the defendant brought to his office at
          approximately 11:20 p.m. on 27 August 1991. Those present
          in the office with the sheriff and the defendant were Lt.
          Whitney, the defendant's brother and his brother's wife. A
          cassette tape was used to record the conference. The sheriff
          began the conference by asking the defendant whether he
          wanted to come and talk to him in regard to what had hap-
          pened and the defendant answered that he wanted to do so.
          The defendant started to make a statement and Sheriff
          Brown then interrupted him and again advised him of his
          rights under Miranda except he did not advise him that he
          could stop answering questions at any time. The sheriff also
          did not ask the defendant, "[d]o you want a lawyer now?"
          The defendant then made an incriminating statement.

On May 14, 1992, an Onslow County, North Carolina superior
court jury convicted Bobby Lee Harris of first-degree murder, robbery
with a dangerous weapon, second-degree burglary, larceny, and pos-
session of a stolen weapon. Prior to the sentencing phase of the trial,
Harris's lead trial counsel, Timothy E. Merritt, was allowed to with-
draw after being diagnosed with terminal bone marrow cancer. He
was soon replaced by a new lead counsel, Charles H. Henry. See
Harris, 449 S.E.2d at 376. The assisting defense counsel, Charles K.
Medlin, continued representing Harris. On July 2, 1992, before the
sentencing hearing took place, Medlin filed a motion for appropriate
relief (1992 MAR) in the superior court on Harris's behalf arguing
that Merritt's medical condition had prevented him from effectively
representing Harris during the guilt phase of the trial. The superior
court judge denied the 1992 MAR on July 10, 1992.

Because of the delay caused by the withdrawal and replacement of
Merritt, the sentencing proceedings did not begin until July 13, 1992.
Rather than retain the guilt-phase jury for sentencing, the superior
court empaneled a new jury. After deliberating, the jury recom-
mended that Harris be sentenced to death. The trial judge followed the
jury's recommendation and sentenced Harris to death for first-degree
murder and 100 years for the other offenses. Pursuant to N.C. Gen.
Stat. § 7A-27(a) (Michie 1995), Harris appealed the first-degree mur-
der conviction and death sentence to the North Carolina Supreme
Court as a matter of right.

                    5
On November 3, 1994, the North Carolina Supreme Court affirmed
Harris's death sentence. See Harris, 449 S.E.2d at 388. The North
Carolina Supreme Court also affirmed the superior court's denial of
Harris's 1992 MAR, but noted that Harris could make another motion
for appropriate relief under N.C. Gen. Stat. § 15A-1415 (Michie
1997), and present any additional evidence of ineffective assistance
of counsel therein. See Harris, 449 S.E.2d at 375-77.

The superior court appointed new counsel to represent Harris in his
post-conviction proceedings. On January 16, 1996, Harris's newly
appointed counsel filed a second MAR (1996 MAR) in the superior
court, which was denied without a hearing on July 8, 1996. Harris
then filed a petition for a writ of certiorari with the North Carolina
Supreme Court asking for a review of the superior court's denial. The
North Carolina Supreme Court denied the writ of certiorari on March
26, 1997. See State v. Harris, 483 S.E.2d 714 (N.C. 1997).

Harris next filed a writ of habeas corpus in the United States Dis-
trict Court for the Eastern District of North Carolina on July 11, 1997.
In his federal habeas petition, Harris made fifteen different claims.
Harris's claims included, inter alia, that his Confrontation Clause
right was violated, that he was denied his Sixth Amendment right to
effective assistance of counsel both at trial and on appeal, that his
Fifth Amendment right to counsel was violated, and that he was
denied a fair and impartial jury in violation of the Sixth Amendment.
The district court granted summary judgment to the State and dis-
missed the petition, finding that several claims were procedurally
defaulted and that the remaining questions did not merit relief. After
the district court granted the State's motion for summary judgment,
Harris filed a motion in the district court to alter judgment under Fed-
eral Rule of Civil Procedure 59(e), claiming that the district court
improperly held several of Harris's claims as procedurally defaulted.
The district court denied the motion to alter judgment on November
3, 1998. Harris then filed a notice of appeal with this Court and
received a certificate of appealability from the district court.

On appeal, Harris presents five issues: (1) whether the district court
erred in refusing to consider affidavits offered in support of the
habeas petition; (2) whether the district court erred in not allowing an
evidentiary hearing on claims of ineffective assistance of trial coun-

                    6
sel; (3) whether the district court erred in not allowing an evidentiary
hearing on claims of ineffective assistance of appellate counsel; (4)
whether the district court erred in determining that the state courts'
denial of Harris's motion to suppress his confession constituted a rea-
sonable application of Supreme Court precedent; and (5) whether the
district court erred in treating several issues not raised on direct
appeal as procedurally defaulted.

II.

Before we address Harris's claims, we must delineate the applica-
ble standards of review for legal questions addressed by the state
courts. Because Harris filed his federal habeas petition after enact-
ment of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), the AEDPA's deferential standards of review apply to the
claims already adjudicated on the merits by the state courts.2 The
AEDPA provides:

           An application for a writ of habeas corpus on behalf of a
          person in custody pursuant to the judgment of a State court
          shall not be granted with respect to any claim that was adju-
          dicated on the merits in State court proceedings unless the
          adjudication of the claim --

           (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 unreason-
          able determination of the facts in light of the evidence pre-
          sented in the State court proceeding.

28 U.S.C.A. § 2254(d) (West Supp. 1999). We recently interpreted
subsection (1) to prohibit the issuance of the writ unless (a) the state
court decision is in "square conflict" with Supreme Court precedent
_________________________________________________________________
2 The writ was filed on July 11, 1997, after April 26, 1996, the effective
date of the AEDPA. See Lindh v. Murphy, 117 S. Ct. 2059 (1997).

                    7
which is controlling as to law and fact or (b) if no such controlling
decision exists, "the state court's resolution of a question of pure law
rests upon an objectively unreasonable derivation of legal principles
from the relevant [S]upreme [C]ourt precedents, or if its decision rests
upon an objectively unreasonable application of established principles
to new facts." Green v. French, 143 F.3d 865, 870 (4th Cir. 1998),
cert. denied, 119 S. Ct. 844 (1999). "In other words, habeas relief is
authorized only when the state courts have decided the question by
interpreting or applying the relevant precedent in a manner that rea-
sonable jurists would all agree is unreasonable." Id. We now turn to
the merits of Harris's claims.

A.

Harris first claims that the federal district court erred by refusing
to consider affidavits filed in support of his habeas petition. At issue
are two affidavits, one from the lawyer representing Harris at trial and
on appeal, Charles Medlin, and one from Harris himself. These affi-
davits were not submitted to the state courts in either the 1992 MAR
or the 1996 MAR. Instead, they were prepared in anticipation of the
federal habeas proceeding and submitted with the petition. The fed-
eral district court refused to consider the affidavits because they
"were never submitted on the State level" and"cannot now be consid-
ered." (J.A. at 539.)

This Court recently addressed the question of when a federal
habeas court may consider additional evidence that was not presented
in a state collateral relief proceeding. In Wilson v. Moore, 1999 WL
330282 (4th Cir. May 25, 1999), we noted that "a federal habeas
applicant must develop the factual basis for a claim in state court to
`accommodate concerns of finality, comity, judicial economy, and
channeling the resolution of claims into the most appropriate forum.'"
Id. at *4 (quoting Keeney v. Tamayo-Reyes , 504 U.S. 1, 8 (1992)). In
order to preserve these ends, we treat the unexcused omission of evi-
dentiary materials in state court proceedings in the same manner that
we treat the unexcused omission of claims in state court proceedings
-- we apply the doctrine of procedural default. See Wilson, 1999 WL
330282 at *4.

Under the doctrine of procedural default, a federal court may not
consider the merits of claims on federal habeas review if they were

                    8
defaulted under an independent and adequate state procedural rule
applied by the state courts unless the prisoner can demonstrate cause
for the default and prejudice resulting therefrom, or can demonstrate
that a failure to consider the claims will result in a fundamental mis-
carriage of justice. See Coleman v. Thompson, 501 U.S. 722, 731-32,
750 (1991). A state rule is adequate if it is regularly or consistently
applied by the state court, see Johnson v. Mississippi, 486 U.S. 578,
587 (1988), and is independent if it does not "depend[ ] on a federal
constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75 (1985).

In Harris's 1996 MAR proceeding, the superior court dismissed
Harris's allegations of ineffective assistance of counsel at both the
sentencing and guilt phase of his trial because they were not sup-
ported by evidence as required by N.C. Gen. Stat.§ 15A 1420(b)(1)
(Michie 1997).3 The superior court thus asserted a state procedural
rule barring consideration of the claim for failure to introduce statu-
torily required evidence. Harris argues that § 15A-1420(b)(1) was not
an adequate4 rule under the doctrine of procedural default because
other North Carolina courts have routinely allowed a verified MAR
to serve as sufficient evidence under § 15A-1420(b)(1).

At the outset, we note that the affidavits in question were never
presented in the state courts -- the state jurists never had an opportu-
nity to accept or reject them. And, as we explain, we simply do not
accept the notion that a verified MAR is interchangeable with an affi-
davit in this context.5 North Carolina law compels this position. In
_________________________________________________________________
3 Section 15A-1420(b)(1) reads as follows:

          A motion for appropriate relief made after the entry of judgment
          must be supported by affidavit or other documentary evidence if
          based upon the existence or occurrence of facts which are not
          ascertainable from the records and any transcript of the case or
          which are not within the knowledge of the judge who hears the
          motion.

N.C. Gen. Stat. § 15A-1420(b)(1) (Michie 1997).
4 Harris does not contend that N.C. Gen. Stat. § 15A-1420(b)(1)
depends upon a federal constitutional ruling, resulting in a lack of inde-
pendence.
5 We note Harris's citation of Schoolfield v. Collins, 189 S.E.2d 208,
213 (N.C. 1972), which stated that verified pleadings could be treated as

                    9
rejecting certain of Harris's claims, the superior court relied upon
N.C. Gen. Stat. § 15A-1420(b)(1), which requires that a MAR be sup-
ported by an affidavit or other documentary evidence if it relies upon
facts outside of the record or the knowledge of the court. See N.C.
Gen. Stat. § 15A-1420(b)(1). Two North Carolina cases have made it
clear that mere allegations lacking independent support are insuffi-
cient to sustain a MAR under § 15A-1420(b)(1). See State v. Payne,
325 S.E.2d 205, 219 (N.C. 1985); State v. Ware , 482 S.E.2d 14, 16
(N.C. App. 1997). The contents of MARs and independent supporting
affidavits are not treated as interchangeable by the state courts in the
context of § 15A-1420(b)(1).6 Based upon this analysis, we conclude
_________________________________________________________________
an affidavit. The simple distinction between the present case and
Schoolfield is that in the latter case the North Carolina Supreme Court
was interpreting a different procedural rule under North Carolina law that
specifically allowed pleadings as well as affidavits to suffice as support
for material facts. See id. Furthermore, the North Carolina Supreme
Court emphasized the fact that all of the factual assertions in the pleading
at issue were within the personal knowledge of the person verifying the
pleading. See id. It is certainly within the purview of the state courts to
interpret individual state statutes and procedural rules as they see fit and,
as we explain in the text that follows, we believe that the state courts
have not treated affidavits and verified pleadings interchangeably in the
context of N.C. Gen. Stat. § 15A-1420(b)(1) (Michie 1997).
6 Harris presents two cases from North Carolina to support his argu-
ment that the state courts, as a matter of course, accept verified MARs
as sufficient to satisfy the requirements of N.C. Gen. Stat. § 15A-
1420(b)(1) (Michie 1999). After reviewing these cases, we do not agree.
In State v. Taylor, 393 S.E.2d 801 (N.C. 1990), petitioner presented his
ineffective-assistance-of-appellate-counsel claims in a MAR, but the
petitioner's previous lawyer claimed attorney-client privilege to protect
other documentary evidence, thus effectively preventing the presentation
of affidavits or other documentary evidence. Taylor presented unusual
circumstances not present in this case. In the second case cited by Harris,
State v. McDowell, 310 S.E.2d 301 (N.C. 1984), it is not clear exactly
what evidence was presented in the MAR or whether any additional evi-
dence outside of the factual record was necessary to decide the question.
Because of an allegation of newly discovered evidence, the trial court
did, however, allow an evidentiary hearing, which provided support for
the claims. Neither of these cases squarely addressed the issue of what
evidence is required under § 15A-1420(b)(1). Moreover, even if we

                  10
that the refusal to consider facts contained in the 1996 MAR was sup-
ported by a consistent application of § 15A-1420(b)(1). The state pro-
cedural rule is therefore adequate.

Having concluded that the evidence presented to the federal habeas
court was not submitted to the state courts, and thus the state courts
declined review on the merits, we must now determine whether a fun-
damental miscarriage of justice or cause and prejudice excuse the
omission. "Cause exists . . . where the factual or legal basis for the
claim was not reasonably available to the claimant at the time of the
state proceeding." Roach v. Angelone, 1999 WL 270014, *10 (4th Cir.
May 4, 1999). Harris makes no argument that he could not have
obtained the affidavits prior to his state MAR proceeding, and the rea-
son is apparent: he and his former counsel were the affiants. Further-
more, Harris makes no argument that failing to consider the affidavits
would result in a fundamental miscarriage of justice. Accordingly, we
conclude that the district court properly refused to consider the sup-
porting affidavits.

B.

Harris next contends that he "was entitled to an evidentiary hearing
on his claims of ineffective assistance of counsel at trial." (Appel-
lant's Br. at 2.) According to Harris, the district court should have
embarked upon a factual investigation of his trial counsels' perfor-
mance because his federal habeas petition made sufficient allegations
of substandard performance that resulted in prejudice, thus satisfying
the standard for constitutionally ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668 (1984). Specifically,
Harris contends that his trial counsel provided ineffective assistance
for the following reasons: (1) counsels' trial strategy was doomed to
fail as a matter of North Carolina law; (2) counsel ineptly examined
the victim's treating physician; (3) counsel failed to object to the
_________________________________________________________________

believed that the state courts had allowed exceptions to § 15A-
1420(b)(1), we have held that state courts need not show an unwavering
adherence to a state procedural rule to demonstrate that it is firmly estab-
lished. Cf. Weeks v. Angelone, 1999 WL 288504 at *19 (4th Cir. May 10,
1999).

                    11
admission of a dying declaration; and (4) counsel failed to properly
utilize a psychological expert.

Due to concerns about comity and federalism, it is well-established
that a habeas petitioner is entitled to an evidentiary hearing only if the
fact-finding process in the state courts was significantly deficient
through no fault of the habeas petitioner. See, e.g., Keeney v. Tamayo-
Reyes, 504 U.S. 1, 5-9 (1992); Townsend v. Sain, 372 U.S. 293, 313
(1963), overruled in part by Tamayo-Reyes, 504 U.S. at 5-9;
Fitzgerald v. Greene, 150 F.3d 357, 369 (4th Cir. 1998); 1 James S.
Liebman & Randy Hertz, Federal Habeas Corpus Practice and
Procedure § 20.2b at 742 (3d ed. 1998). The AEDPA restricts a fed-
eral court from holding an evidentiary hearing in the following cir-
cumstances:

          If the applicant has failed to develop the factual basis of a
          claim in State court proceedings, the court shall not hold an
          evidentiary hearing on the claim unless the applicant shows
          that--

           (A) the claim relies on--

           (i) a new rule of constitutional law, made retro-
          active to cases on collateral review by the Supreme
          Court, that was previously unavailable; or

           (ii) a factual predicate that could not have been
          previously discovered through the exercise of due
          diligence; and

           (B) the facts underlying the claim would be sufficient to
          establish by clear and convincing evidence that but for con-
          stitutional error, no reasonable factfinder would have found
          the applicant guilty of the underlying offense.

28 U.S.C.A. § 2254(e)(2) (West Supp. 1999). We have interpreted
"failed" to mean an omission on the part of a habeas petitioner. See
Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir.), cert. denied, 119
S. Ct. 587 (1998). Thus, if a state court refuses to allow factual devel-

                     12
opment of a claim despite the diligent efforts of a habeas petitioner,
we will not consider it a failure on the part of the petitioner and will
not preclude an evidentiary hearing based upon § 2254(e)(2). See id.
at 337.

As an initial matter, we find unpersuasive Harris's incorporation of
his argument in part A. of this opinion. In an attempt to fend off the
application of § 2254(e), Harris contends that the state courts improp-
erly disregarded the substance of his allegations in the 1996 MAR
application, resulting in a refusal by the state courts to allow factual
development. The superior court's behavior, however, does not dem-
onstrate a deficiency in the state court fact-finding process or a refusal
by the state to allow the development of the factual record. The supe-
rior court simply followed precedent previously established by the
North Carolina Supreme Court in finding the verified MAR insuffi-
cient. See Payne, 325 S.E.2d at 219. We will not eviscerate state court
fact finding by arbitrarily reopening matters upon federal habeas
review. See Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (noting that
federal courts must protect "the state trial on the merits [as] the `main
event,' so to speak, rather than a `tryout on the road' for what will
later be a determinative federal habeas hearing"). Harris's argument
does not defeat the application of § 2254(e).

We now address the merits of Harris's request for an evidentiary
hearing. Because our reasoning regarding the alleged deficiency in
trial strategy and the handling of the psychological expert differs
somewhat from our reasoning regarding the examination of the vic-
tim's treating physician and the failure to object to the dying declara-
tion, we will analyze the appropriateness of an evidentiary hearing on
these issues in two parts.

1.

In Harris's 1992 MAR, which was reviewed by the North Carolina
Supreme Court on direct appeal, he argued that his trial counsel was
ineffective because the trial strategy was fundamentally flawed and
counsel failed to make appropriate use of a psychological expert. See
Harris, 449 S.E.2d at 376-77. Harris attributed these shortcomings to
the lack of cooperation between, and inattention of, trial counsel. The
superior court denied the 1992 MAR as did the North Carolina

                     13
Supreme Court. See id. Harris also made other claims of ineffective
assistance of counsel, but failed to support them with any evidence.
See id. In its decision denying the claims, the North Carolina Supreme
Court stated that Harris could make claims of ineffectiveness of coun-
sel in a subsequent MAR and submit evidence. See id. Harris's post-
conviction counsel followed at least part of this advice.

In his 1996 MAR, Harris again argued, as he does to this Court,
that his trial counsel were ineffective, at least in part, because of poor
cooperation and planning, which had a particularly adverse affect on
trial strategy and the use of a psychological expert retained by the
defense. The out-of-court activities of Harris's trial counsel are not
readily ascertainable from trial records and, under North Carolina
law, the allegations must be supported by documentary evidence such
as an affidavit. See N.C. Gen. Stat. § 15A-1420(b)(1) ("A motion for
appropriate relief made after the entry of judgment must be supported
by affidavit or other documentary evidence if based upon the exis-
tence or occurrence of facts which are not ascertainable from the
records and any transcript of the case or which are not within the
knowledge of the judge who hears the motion."). In its order denying
the 1996 MAR, the superior court noted that Harris"had not pre-
sented any additional evidence supported by affidavit which would
demonstrate ineffective assistance of [trial] counsel." (J.A. at 166
(internal quotation marks omitted).) In other words, Harris had not
presented supporting evidence as the North Carolina Supreme Court
suggested on direct appeal or as required by statute.

Because Harris did not submit the necessary factual support for
these claims to the state courts, we find that he failed "to develop the
factual basis of a claim in State court proceedings."7 28 U.S.C.A.
§ 2254(e)(2). Therefore, a federal court may not entertain an evidenti-
ary hearing on these matters unless Harris can establish (1) either that
the claim relies on a new rule of constitutional law retroactively
applied or that the claim relies on facts that could not have been dis-
covered through due diligence, and (2) that the underlying facts are
sufficient to establish by clear and convincing evidence that absent
_________________________________________________________________
7 If the facts had been fully developed in the state court, then there
would, of course, be no reason to hold an evidentiary hearing at the dis-
trict court.

                     14
constitutional error, no reasonable fact finder would have found the
petitioner guilty. See 28 U.S.C.A. § 2254(e)(2). Harris's claim does
not meet these criteria.

First, Harris argues no new rule of constitutional law. Second, the
facts presented to support the claims of ineffective assistance of trial
counsel were within the personal knowledge of both Harris and one
of his trial counsel and thus readily available upon an exercise of due
diligence at the time of his 1996 MAR. Because Harris failed to
develop the factual record in state court and the circumstances do not
fall within the narrow exceptions allowed by § 2254(e)(2), the district
court was prohibited from holding an evidentiary hearing on these
issues.

2.

The remaining ineffective-assistance-of-trial-counsel claims lodged
by Harris also do not merit an evidentiary hearing, but for slightly dif-
ferent reasons. Unlike the claims discussed in part B.1., trial counsel's
performance during the examination of the victim's treating physician
and during the introduction of the victim's dying declaration are mat-
ters of record. Therefore, under § 15A-1420(b)(1), the claims need
not be supported by affidavit or other documentary evidence. See
N.C. Gen. Stat. 15A-1420(b)(1) (stating that other evidence need be
presented only if facts "are not ascertainable from the records or any
transcript of the case"). The claims were fully developed in the state
courts and § 2254(e) is not implicated.

Although § 2254(e) does not prohibit an evidentiary hearing, Harris
is still not entitled to an evidentiary hearing unless he can show that
the fact-finding process in the state courts was significantly deficient
through no fault of the habeas petitioner. See, e.g., Fitzgerald, 150
F.3d at 369 (stating that a habeas petitioner is"entitled to an evidenti-
ary hearing only if the state court fact-finding process was deficient
in some significant respect" (internal quotation marks omitted)). As
to these ineffective-assistance-of-counsel claims, Harris makes no
such suggestion, nor does he allege that any extra-record facts would
bolster his claims. Because Harris fails to make a showing that he is
entitled to an evidentiary hearing on these claims, we conclude that
the district court properly refused to grant one.

                     15
In sum, the district court properly denied Harris's request for an
evidentiary hearing. Under § 2254(e)(2), we are prohibited from
allowing an evidentiary hearing in federal court to flesh out previ-
ously available factual support for habeas claims when Harris failed
to do so in the state courts. Moreover, Harris is not entitled to an evi-
dentiary hearing on his factually developed ineffective-assistance-of-
counsel claims because he failed to show a significant deficiency in
the state court fact-finding process.8

C.

Harris next contends that he "was entitled to an evidentiary hearing
on his claims of ineffective assistance on direct appeal." (Appellant's
Br. at 2.) Underlying this request is Harris's contention that his state
appellate counsel were ineffective because they failed to raise merito-
rious issues on appeal. Harris specifically asserts that the following
issues should have been raised: (1) Harris was unable to confront the
victim's treating doctor during the doctor's testimony in violation of
Harris's rights under the United States and North Carolina constitu-
tions; (2) Harris was subjected to double jeopardy in violation of the
United States Constitution and North Carolina law because the guilt-
phase jury was dismissed and a new jury empaneled for the sentenc-
ing phase; (3) Harris's trial counsel admitted Harris's guilt without
Harris's authorization in violation of his rights under North Carolina
law; and (4) Harris's right under the United States Constitution to a
fair and impartial jury was violated by the service of the superior
court judge's secretary on the trial jury. Here again, Harris requests
only that we grant an evidentiary hearing to provide a forum to estab-
lish the factual basis for his claims. Accordingly, we turn to the rele-
vant standards for the grant of an evidentiary hearing.

As we explained in part B., a habeas petitioner is entitled to an evi-
dentiary hearing only if the fact-finding process in the state courts
_________________________________________________________________
8 Harris's only request for relief on this issue is an evidentiary hearing
by the district court. Even if we were to construe Harris's brief to request
a substantive review of his claims of ineffective assistance of trial coun-
sel and ignore any procedural infirmities, we would agree with the opin-
ion of the district court, which held that the substance of Harris's
ineffective-assistance-of-trial-counsel claims did not merit relief.

                     16
was significantly deficient through no fault of the habeas petitioner.
See, e.g., Keeney v. Tamayo-Reyes, 504 U.S. 1, 4-9 (1992); Townsend
v. Sain, 372 U.S. 293, 313 (1963), overruled in part by Tamayo-
Reyes, 504 U.S. at 4-9; Fitzgerald v. Greene , 150 F.3d 357, 369 (4th
Cir. 1998); 1 James S. Liebman & Randy Hertz, Federal Habeas Cor-
pus Practice and Procedure § 20.2b at 742 (3d ed. 1998). As we
noted in part B., the AEDPA restricts a federal court from holding an
evidentiary hearing if the petitioner has failed to develop the factual
basis of a claim in the state courts unless: (1) the claim is based on
a new rule of constitutional law retroactively applicable or relies on
facts not available through an exercise of diligence; and (2) the facts
provide clear and convincing evidence that the petitioner would not
have been found guilty absent constitutional error. See 28 U.S.C.A.
§ 2254(e)(2). Again, we have interpreted "failed" to mean an omis-
sion on the part of a habeas petitioner, and thus if a state court refuses
to allow factual development despite the diligent efforts of a habeas
petitioner, then we will not consider it a failure on the part of the peti-
tioner, and we will not preclude an evidentiary hearing based upon
§ 2254(e)(2). See Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir.),
cert. denied, 119 S. Ct. 587 (1998).

In the circumstances presented by this appeal, we find no merit in
Harris's request for an evidentiary hearing. Harris does not argue that
there was any significant deficiency in the state courts' fact-finding
process and does not contend that the state courts refused to allow
him to develop the record. Furthermore, Harris points to no facts out-
side of the record that even would benefit from further factual investi-
gation by a federal habeas court. Finally, the claims before the district
court were fully presented, and we have never held that a federal
habeas court is required to hold an evidentiary hearing on such
ineffective-assistance-of-appellate-counsel claims. See Eaton v.
Angelone, 139 F.3d 990, 995 (4th Cir.), cert. denied, 118 S. Ct. 2338
(1998). Because Harris has not shown any entitlement to an evidenti-
ary hearing, we need not address whether such a hearing would be
prohibited under § 2254(e)(2). Harris's request for an evidentiary
hearing does not meet the narrow standards that are set forth above.
Accordingly, we conclude that the district court properly refused to
grant an evidentiary hearing on these issues.

Even if we were most liberally to construe Harris's petition as a
request for us to review the substance of his ineffective-assistance-of-

                     17
appellate-counsel claims on the merits, we would affirm the district
court. To violate the Sixth Amendment right to counsel as defined by
the Supreme Court's holding in Strickland, a counsel's performance
must fall outside of the wide range of reasonable assistance and result
in such prejudice as to undermine confidence in the outcome of the
proceedings. See Fitzgerald, 150 F.3d at 368; cf. Strickler v. Greene,
1999 WL 392982, at *14 (U.S. June 17, 1999) (setting forth the "un-
dermine confidence" standard as appropriate for judging prejudice in
a procedural default analysis). Appellate counsel is thus given signifi-
cant latitude to develop a strategy that may omit meritorious claims
in order to avoid burying issues in a legal jungle. See Griffin v. Aiken,
775 F.2d 1226, 1235 (4th Cir. 1985). "[W]innowing out weaker argu-
ments on appeal and focusing on those more likely to prevail, far
from evidence of incompetence, is the hallmark of effective appellate
advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (internal quo-
tation marks omitted). The standard is therefore not what later counsel
or courts with the benefit of hindsight believe should have been
accomplished in earlier proceedings, but instead whether counsel at
the time acted within the liberal bounds of competent representation.

After reviewing the facts presented to this Court, we agree with the
district court's conclusion that "it cannot be said that the performance
of appellate counsel fell below the standards for effective assistance
as stated in Strickland." (J.A. at 541.) Furthermore, assuming
arguendo that counsel was ineffective, we conclude that Harris suf-
fered no prejudice because the unpresented claims fall well short of
the degree necessary to undermine confidence in the proceeding.9
Having made this judgment after an independent review of the law
and facts, we are confident that the state court's determination that
Harris's appellate counsel was not deficient and that Harris suffered
no prejudice, fell easily within the parameters of decisions that we
must not disturb pursuant to the mandate of 28 U.S.C.A. § 2254(d).
_________________________________________________________________

9 In short, we believe that the unpresented claims had little merit and
that it is, at best, unlikely that an appellate court would have granted
relief on the merits of these claims had counsel presented them on direct
appeal. Counsel's failure to present them on appeal, therefore, in no way
undermines our confidence in the proceeding.

                    18
D.

Harris next claims that the district court erred in finding that the
admission of his confession did not violate his Fifth Amendment
rights as safeguarded through Miranda v. Arizona , 384 U.S. 436
(1966), and its progeny. Because this claim was adjudicated on the
merits by the state courts, we review their holding to determine only
whether it was contrary to established Supreme Court precedent, was
an unreasonable derivation of controlling Supreme Court precedent,
or an unreasonable application of Supreme Court precedent to a new
set of facts. See 28 U.S.C.A. § 2254(d); Fitzgerald v. Greene, 150
F.3d 357, 362 (4th Cir. 1998).

When Harris was first interviewed by law enforcement authorities,
he was apprised of his Miranda rights and exercised them by declin-
ing further discussion absent the presence of counsel. See Harris, 449
S.E.2d at 374. After talking with his brother approximately twelve
hours later, Harris, on his own initiative, requested to speak with law
enforcement authorities again. See id. After being brought to the sher-
iff's office pursuant to his own request, Harris began making a con-
fession. The sheriff interrupted him and again reminded him of his
Miranda rights, although the sheriff failed to inform Harris that he
could discontinue questioning at any time and also did not tell Harris
that he could have an attorney immediately. Harris contends that the
voluntary reinitiation of communication with law enforcement absent
full and fresh Miranda warnings and the immediate availability of an
attorney did not satisfy the standards under Miranda and Edwards v.
Arizona, 451 U.S. 477 (1981). Instead, Harris contends that absent a
reinstruction regarding his right to discontinue questioning at any
time and the right to have an attorney's immediate presence, the con-
fession could not have been voluntary under Supreme Court prece-
dent.

The North Carolina Supreme Court addressed this issue in its
review of the case and stated:

          There is no reason to believe the defendant, having been
          fully and properly advised of his Miranda rights approxi-
          mately twelve hours before his interview with Sheriff
          Brown, had forgotten them. Certainly he should have known

                    19
          of his right to an attorney before he could be interrogated by
          the officers for he had exercised his right on that day. It was
          not necessary for Sheriff Brown to advise the defendant
          again of his rights under Miranda.

Harris, 449 S.E.2d at 375. A review of controlling United States
Supreme Court precedent reveals that this analysis was a quite reason-
able interpretation of the law and application to the facts at hand.

The United States Supreme Court's explication of the Fifth
Amendment in Miranda controls the admissibility of custodial con-
fessions in state courts based upon whether the defendant was
apprised of certain constitutional rights, therefore safeguarding the
voluntariness of confessions. See Miranda v. Arizona, 384 U.S. 436,
444-45 (1966). In Edwards v. Arizona, 451 U.S. 477 (1981), the
Supreme Court discussed the manner in which a defendant who had
asserted his Fifth Amendment right to have counsel present could
effectively withdraw that assertion:

          [W]e now hold that when an accused has invoked his right
          to have counsel present during custodial interrogation, a
          valid waiver of that right cannot be established by showing
          only that he responded to further police-initiated custodial
          interrogation even if he has been advised of his rights. We
          further hold that an accused, such as Edwards, having
          expressed his desire to deal with the police only through
          counsel, is not subject to further interrogation by the author-
          ities until counsel has been made available to him, unless
          the accused himself initiates further communication,
          exchanges, or conversations with the police.

Id. at 484-85 (footnote omitted). Later, in Oregon v. Bradshaw, 462
U.S. 1039 (1983) (plurality opinion), the Supreme Court explained
that a valid waiver of the right to counsel and the right to silence
depends upon "whether the purported waiver was knowing and intelli-
gent and found to be so under the totality of the circumstances,
including the necessary fact that the accused, not the police, reopened
the dialogue with the authorities." Id. at 1046 (internal quotation
marks omitted). The Supreme Court continued, "As we have said
many times before, this determination depends upon the particular

                    20
facts and circumstances surrounding the case, including the back-
ground, experience, and conduct of the accused." Id. (internal quota-
tion marks omitted). Thus, whether Harris's Fifth Amendment rights
were violated depends upon whether he was informed of his rights in
accordance with Miranda, whether he withdrew any assertion of those
rights by voluntarily initiating a conversation with law enforcement,
and whether he waived his rights in light of the totality of the circum-
stances.

In this case, there is no debate as to whether Harris received the
requisite warnings under Miranda on the same day he confessed.
Moreover, there is no dispute that it was Harris, and not law enforce-
ment, that initiated the discussion following his earlier request to have
counsel present. Finally, Harris was again informed of his Miranda
rights only twelve hours after originally hearing them and exercising
them.10 Under these circumstances, Harris clearly made a knowing
and intelligent waiver of his Fifth Amendment right to be free from
compelled self-incrimination. In our judgment, these occurrences evi-
dence that the circumstances of Harris's confession did not violate
Miranda or its progeny. The North Carolina Supreme Court's judg-
ment on this point was well within the narrow bounds of review man-
dated by § 2254(d), and we affirm the district court on this point.

E.

Harris finally claims that the district court erred in treating several
issues as procedurally defaulted. Specifically, Harris asserts that the
following claims were improperly treated as procedurally defaulted:
(1) that the service of the trial judge's secretary on the jury deprived
Harris of his Sixth Amendment right to an impartial jury; (2) that Har-
ris's absence at a videotaped examination of the victim's treating phy-
sician violated Harris's Confrontation Clause rights; and (3) that his
trial counsel was constitutionally ineffective for failing to raise a
timely claim that Harris's Double Jeopardy Clause rights were vio-
_________________________________________________________________
10 The mere passage of time between the original Miranda warnings
and a confession generally does not taint a confession. See United States
v. Frankson, 83 F.3d 79, 83 (4th Cir. 1996). Therefore, even if the sheriff
had not repeated the Miranda warnings, there would not be any violation
of Harris's Fifth Amendment rights.

                     21
lated because a new jury was empaneled for the sentencing portion of
the trial.

This Court may not review claims in a federal habeas petition if
they have been defaulted under an independent and adequate state
procedural rule as applied by the state courts unless the habeas peti-
tioner can demonstrate cause for the default and prejudice resulting
therefrom, or demonstrate that a failure to consider the claims will
result in a fundamental miscarriage of justice. See Coleman v.
Thompson, 501 U.S. 722, 731-32, 750 (1991). A state rule is adequate
if it is regularly or consistently applied by the state court, see Johnson
v. Mississippi, 486 U.S. 578, 587 (1988), and is independent if it does
not "depend[ ] on a federal constitutional ruling," Ake v. Oklahoma,
470 U.S. 68, 75 (1985).

The district court determined that these issues were procedurally
defaulted based upon the superior court's finding during the 1996
MAR proceeding that the issues were barred from review under
§ 15A-1419(a)(3) (Michie 1997). Section 15A-1419(a)(3) states that
a MAR may be denied if "[u]pon a previous appeal the defendant was
in a position to adequately raise the ground or issue underlying the
present motion but did not do so." N.C. Gen. Stat. § 15A-1419(a)(3).
It is undisputed that on direct appeal Harris failed to raise the issue
of the superior court judge's secretary's service on the trial jury or the
fact that Harris did not attend the out-of-court examination of the vic-
tim's physician.

We have previously determined § 15A-1419(a)(3) to be an ade-
quate and independent ground, and Harris does not argue otherwise.
See Williams v. French, 146 F.3d 203, 210 (4th Cir. 1998), cert.
denied, 119 S. Ct. 1061 (1999). Instead, Harris argues that ineffective
assistance of counsel on appeal constitutes sufficient cause to excuse
the default. Although he does not say, we presume that Harris claims
the resulting prejudice to be the loss of winning issues on appeal.

Because we conclude that two of Harris's claims were properly
treated as procedurally defaulted, but the third was not, we address
this issue in two parts.

                     22
1.

We first address Harris's position that this Court should review the
merits of his Sixth Amendment right to an impartial jury claim and
his Confrontation Clause claim because ineffective assistance of his
appellate counsel constitutes adequate cause to excuse his failure to
raise the claims on direct appeal.

Constitutionally ineffective counsel is among the recognized fac-
tors for establishing cause for default. See Williams, 146 F.3d at 209-
10. Before ineffective assistance of counsel can be presented as cause
for procedural default in a federal habeas proceeding, however, the
ineffectiveness claim must first be presented to the state courts as an
independent claim. See id. at 210 n.9. If the ineffective-assistance-of-
counsel claim is properly presented to the state courts, then it can be
evaluated as a source of cause for procedural default in a federal
habeas proceeding. In order to constitute cause for procedural default,
counsel's conduct must have constituted ineffective assistance of
counsel under the United States Constitution -- i.e., the Strickland
standard. See id. at 210. Upon a finding that the counsel's representa-
tion is in fact constitutionally ineffective, then that conduct is imputed
to the state and it can establish causation for the procedural default.
See id. Because Harris raised the ineffectiveness-of-appellate-counsel
claims before the state courts, we may evaluate them as a potential
source of cause for procedural default.

Whether Harris's counsel were in fact constitutionally ineffective
on appeal, depends upon an evaluation of their conduct in accordance
with the Strickland standard. As we stated in part C., however, we
have determined that appellate counsel were not ineffective for failing
to present claims for violations of Harris's Confrontation Clause
rights or the Sixth Amendment right to an impartial jury. Because we
have concluded that Harris's appellate counsel were not constitution-
ally ineffective, ineffective assistance of counsel cannot constitute
sufficient cause for procedural default, and we must affirm the grant
of summary judgment to the State on this issue. 11
_________________________________________________________________
11 We also note that Harris's substantive claims do not merit relief. Nei-
ther his claim that the service of the trial judge's secretary on the jury

                     23
2.

We now come to Harris's claim that his allegation of ineffective
assistance of trial counsel for failing to object to the empaneling of
a new jury during the sentencing phase of the trial should not have
been treated by the district court as procedurally defaulted.

We agree, but not for the reason advanced by Harris. As both par-
ties inexplicably fail to mention, it is improper to treat an ineffective-
assistance-of-trial-counsel claim as procedurally defaulted under
§ 15A-1419(a)(3) because North Carolina does not require
ineffective-assistance-of-counsel claims to be raised on direct appeal.
See State v. Sneed, 201 S.E.2d 867, 871 (N.C. 1974) ("Our research
discloses that the majority of the decisions relating to the alleged fail-
ure of counsel to render effective representation arises out of post-
conviction proceedings."); State v. Dockery , 336 S.E.2d 719, 721
(N.C. App. 1985) ("The accepted practice is to raise claims of ineffec-
tive assistance of counsel in post-conviction proceedings, rather than
direct appeal."). Because this claim was improperly treated as proce-
durally defaulted by the district court, we will review its merits.

Before embarking on a review of the merits, we note that the supe-
rior court alternatively held that "the alleged deficiencies in counsel's
representation did not prejudice the defendant." (J.A. at 167.) Because
this claim was adjudicated on the merits by the state courts, we apply
the standards of review contained in the AEDPA and review the state
court holding only to determine whether it was contrary to established
_________________________________________________________________

deprived him of his Sixth Amendment right to an impartial jury, nor his
claim that the videotaped examination of the victim's treating physician
violated his Confrontation Clause rights, violated Harris's constitutional
rights. Based upon our review of the facts and the applicable law, we
determine that Harris effectively waived his Confrontation Clause right
to be present at the physician's examination under United States v.
Gagnon, 470 U.S. 522, 526-27 (1985), and in any event, he showed no
prejudice arising from his absence. Furthermore, the service of the supe-
rior court judge's secretary was not a violation of Harris's right to an
impartial jury, especially in light of the significant safeguards imple-
mented by the superior court to avoid any impropriety.

                     24
Supreme Court precedent, was an unreasonable derivation of control-
ling Supreme Court precedent, or an unreasonable application of
Supreme Court precedent to a new set of facts. See 28 U.S.C.A.
§ 2254(d); Fitzgerald v. Greene, 150 F.3d 357, 362 (4th Cir. 1998).

To determine whether a trial counsel's performance is constitution-
ally ineffective, we look to the standards announced by the Supreme
Court in Strickland. Strickland provides that a petitioner must demon-
strate both that his trial counsel's representation was deficient and that
he was prejudiced thereby. See Strickland, 466 U.S. at 687; Howard
v. Moore, 131 F.3d 399, 421 (4th Cir. 1997) (en banc), cert. denied,
119 S. Ct. 108 (1998). In making this determination, "a court must
indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." Strickland, 466
U.S. at 689. To demonstrate prejudice, "[t]he defendant must show
that there is a reasonable probability that, but for counsel's unprofes-
sional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine con-
fidence in the outcome." Id. at 694.

Harris claims his trial counsel were ineffective because they failed
to object to the superior court's empaneling of a new jury to serve in
the sentencing phase of the trial. He urges that this failure was a viola-
tion of his right to be free from double jeopardy under both the North
Carolina and United States constitutions. Harris first cites North Caro-
lina case law and statutory provisions to support his position. See
N.C. Gen. Stat. § 15A-2000(a)(2) (Michie 1997); State v. Lechat, 343
S.E.2d 872 (N.C. 1986); State v. Bondurant, 309 S.E.2d 170 (N.C.
1983); State v. Crocker, 80 S.E.2d 243 (N.C. 1954). A review of this
authority, however, reveals that the superior court's actions at trial
were likely proper under North Carolina law.12 Bondurant stands for
_________________________________________________________________
12 Ordinarily, we would not analyze the substantive application of state
law in a habeas petition. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-
68 (1991) ("[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions."). This claim, how-
ever, is couched in terms of ineffective assistance of trial counsel and
because it involves the omission of a challenge in the state courts, the
superior court did not have an opportunity to address fully the underlying
issue at trial. We, therefore, must address the substance of the state law
to assess the performance of counsel.

                     25
the unremarkable proposition that "[s]electing a jury composed both
of those opposed and unopposed to capital punishment for the pur-
pose of determining guilt and then, at the sentencing phase, replacing
those opposed by alternates who are unopposed to the death penalty"
is improper under North Carolina law. Bondurant , 309 S.E.2d at 176.
Lechat addresses the improper and premature declaration of a mistrial
while the jury was deliberating the guilt of the defendant, and does
not touch upon the empaneling of a second jury during the sentencing
phase. See Lechat, 343 S.E.2d at 878. Finally, Crocker also discusses
the propriety of declaring a mistrial during a portion of the guilt phase
of the trial. See Crocker, 80 S.E.2d at 244-46. None of these cases
stand for the proposition that it is patently improper under North Car-
olina law to empanel a new jury for the guilt phase of a trial.

Most dispositive of the issue is the North Carolina statute cited by
Harris, § 15A-2000(a)(2), which states that"[i]f the trial jury is
unable to reconvene for a hearing on the issue of penalty after having
determined the guilt of the accused, the trial judge shall empanel a
new jury to determine the issue of the punishment." N.C. Gen. Stat.
§ 15A-2000(a)(2). Our review of the record discloses that a guilty
verdict was entered against Harris on May 14, 1992. On May 18,
1992, the sentencing phase of the trial was continued until May 26,
1992, because of the illness of Harris's lead counsel. On that date, the
superior court held an in camera proceeding at which Harris
requested the removal of Mr. Merritt as his lead counsel, which the
superior court eventually allowed after entertaining a request from
Mr. Merritt to withdraw. Faced with the need to replace lead counsel
and to allow sufficient time for the new counsel to familiarize himself
with the case, the superior court determined that the guilt-phase jury
would be unable to continue service indefinitely. Therefore, the supe-
rior court dismissed the jury with the intention of empaneling a new
jury when the sentencing phase could proceed. We do not believe that
this situation exceeds the express guidelines of§ 15A-2000(a)(2). By
no means can we say that counsel was ineffective for not objecting
to the discharge of the jury when it was done to facilitate Harris's
own request to have a new lead counsel appointed. There was, there-
fore, no objection for counsel to lodge under the North Carolina Con-
stitution.

Harris also relies on a federal case holding that absent the volun-
tary consent of a defendant, a declaration of a mistrial that amounts

                     26
to an abuse of discretion would make any later prosecution a violation
of the Double Jeopardy Clause. See United States v. Jorn, 400 U.S.
470, 486 (1971). However, the United States Supreme Court has
expressly held that a sentencing proceeding is not a successive prose-
cution. See Schiro v. Farley, 510 U.S. 222, 230 (1994) ("Our prior
decisions are inconsistent with the argument that a first sentencing
proceeding can amount to a successive prosecution."). Based upon the
circumstances of this case, we are confident in concluding that the
sentencing proceeding did not amount to a successive proceeding
implicating the Double Jeopardy Clause. There was, therefore, no
objection for counsel to lodge under the United States Constitution.

Our review reveals that counsel's actions in regard to the empanel-
ing of a new jury at sentencing demonstrated no deficiencies and
could not have resulted in prejudice to Harris. The state court's judg-
ment in the 1996 MAR was well within the bounds of§ 2254(d) and,
accordingly, we find no grounds for relief on this issue.

III.

For the foregoing reasons, we affirm the district court's grant of
summary judgment and the dismissal of Harris's petition for a writ of
habeas corpus.

AFFIRMED

                    27
