                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 06-27



ERIC LAWRENCE CALL,

                                                Petitioner - Appellant,

           versus


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 Statesville. Lacy H. Thornburg,
District Judge. (5:04-cv-00167)


Argued:   September 27, 2007                Decided:   November 20, 2007


Before TRAXLER and KING, Circuit Judges, and Benson E. LEGG, Chief
United States District Judge for the District of Maryland, sitting
by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Marilyn Gerk Ozer, William F. W. Massengale, MASSENGALE &
OZER, Chapel Hill, North Carolina, for Appellant. Sandra Wallace-
Smith, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.    ON BRIEF: Roy
Cooper, Attorney General, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Eric Lawrence Call was convicted by a North Carolina jury of

the capital murder, kidnapping, and robbery of Macedonio Hernandez

Gervacio (“Macedonio”), and of assault with a deadly weapon with

intent to kill Gabriel Gervacio (“Gabriel”), in a failed attempt to

eliminate Gabriel as a potential witness to Macedonio’s murder.1

Call was sentenced to death for the murder.            On appeal, the Supreme

Court of North Carolina affirmed the murder conviction but remanded

for resentencing on the capital conviction. See State v. Call, 508

S.E.2d 496 (N.C. 1998).2       Call was again sentenced to death.              The

North Carolina Supreme Court affirmed the sentence, see State v.

Call, 545 S.E.2d 190 (N.C. 2001), and the United States Supreme

Court denied Call’s petition for writ of certiorari, see Call v.

North    Carolina,   534   U.S.   1046       (2001).    After    unsuccessfully

challenging his conviction and sentence in state post-conviction

proceedings, Call filed a petition for writ of habeas corpus in

federal district court.       See 28 U.S.C.A. § 2254 (West 2006).              The

district    court    denied   relief.         We   granted   a   certificate   of

appealability, see 28 U.S.C.A. § 2253(c)(1) (West 2006), and now

affirm.


     1
      There is some confusion regarding the victims’ names, likely
stemming from cultural differences in the placement of surnames.
For this reason, we refer to the victims by their first names,
“Macedonio” and “Gabriel”.
     2
      Call’s convictions and sentences for the non-capital crimes
are not at issue in this appeal.

                                         2
                                    I.

     On the evening of August 24, 1995, at approximately 9:30 p.m.,

Call went to the trailer of Macedonio and Gabriel and offered

Macedonio   twenty-five   dollars       to   help   him   move   furniture.

Macedonio told Gabriel that he would “be right back” and left with

Call.   Call, 545 S.E.2d at 195 (internal quotation marks omitted).

Call instead took Macedonio to a nearby cornfield where he robbed

him and then “beat [him] to death with a shovel handle and a tire

iron, tied his right foot up around his head, and tied his hands

behind his back.”   Call, 508 S.E.2d at 504.          At some point, Call

realized that Gabriel would be able to place him with the murder

victim that evening and decided to eliminate Gabriel as a witness.

At approximately 11:00 p.m., Call returned to the trailer and

offered Gabriel twenty dollars to help him move a refrigerator.

Gabriel accepted and left with Call in Call’s pickup truck.            Call

then returned to the cornfield where he unsuccessfully attempted to

kill Gabriel as well:

     [D]efendant lured Gabriel outside of the vehicle by
     telling him the pickup truck was stuck.       As Gabriel
     pushed the bumper of the pickup, defendant picked up an
     aluminum bat and, after pretending to use the bat to lift
     the tire, struck Gabriel on the head. Gabriel recovered,
     stood up, and ran to the edge of a nearby river.
     Defendant ran after him briefly, then returned to the
     pickup truck and departed the area. Gabriel then ran
     into the cornfield and lay on the ground all night.

          The next morning, Gabriel swam across the river and
     sought assistance at area homes.    Eventually, Gabriel
     received a ride home. At approximately 7:00 p.m. on 25
     August 1995, Gabriel, through an interpreter, told the

                                    3
     trailer park owner, David Shatley, what had happened the
     previous night.   Thereafter, law enforcement officers
     were contacted, and Gabriel led a search team back to the
     cornfield to search for [Macedonio].     When the search
     party arrived at the cornfield, Gabriel excitedly told
     the same interpreter that defendant had brought him to
     that location and assaulted him. After walking six to
     eight rows into the cornfield, law enforcement officers
     found a baseball cap on the ground and noticed several
     broken corn stalks. As they continued their search, the
     officers noticed a plaid shirt near the edge of the
     cornfield. After walking toward the shirt, the officers
     discovered that the shirt was on the victim’s body. The
     victim’s body was partially covered by corn stalks. The
     officers noted that the victim had suffered severe head
     injuries. The victim’s right foot was tied up to his
     shoulder area with a yellow rope, and the victim’s hands
     were tied behind his back with a white rope. Shatley
     identified the victim’s body, and Gabriel identified the
     baseball cap as the one the victim was wearing when he
     left the trailer with defendant.      The officers also
     discovered a broken stick, similar to a shovel handle, at
     the scene.

          After the victim’s body was found, the authorities
     immediately began to search for defendant. Defendant was
     not found at his residence.          However, based on
     information obtained at defendant’s residence, a warrant
     was issued for his arrest. Defendant was arrested on 27
     August 1995 in a motel room in Monroe, North Carolina.
     Defendant and his pickup truck were brought back to Ashe
     County, where officers inventoried the contents of
     defendant’s pickup truck.      Among items inventoried,
     officers found a bag of clothes and a steel rod that
     appeared to have blood and hair embedded in it.        In
     addition, officers recovered a motel registration form in
     the name of “Rick N. Finley.” A handwriting expert later
     determined that the registration form was written by
     defendant.

Call, 545 S.E.2d at 195.

     Shortly after the murder, police interviewed Alan Varden, who

was a close friend of Call and his wife Jenny.     Varden told the

police that Call had discussed robbing Macedonio with him on


                                4
several occasions and had attempted to recruit Varden to help.

Varden also informed the police that he was at the Call home on the

evening of the murder.    According to Varden, Call came home after

kidnapping   Macedonio,   but   before   returning    for   Gabriel,   and

eventually told Varden what he had done.     Specifically, Call “told

Varden that he had hit the victim over the head, had broken a

shovel handle, and had hit the victim with a tire iron.        Defendant

also described how he had tied the victim’s right leg and hands

behind the victim’s back.”        Id. at 196.    Call “told Varden he

needed to go back and check the victim’s pulse and that he also

needed to get Gabriel,” but Varden again refused to help.              Id.

Later that evening, Call returned to his home and “told Varden that

he had hit Gabriel with [a] bat [belonging to Varden] but that

Gabriel had gotten away.”   Id.    Call packed his clothes to run and

he, Jenny and Varden went to Varden’s home, where Call shaved his

beard and mustache and left a note declaring that his wife had no

knowledge of “what might have taken place.”          Call, 508 S.E.2d at

510 (internal quotation marks omitted).         Call also returned the

baseball bat to Varden, which Varden wiped clean, and told Varden

and Jenny that he was going to Monroe or Charlotte.         Varden found

Call’s note at his residence and gave it to the police.

     During the guilt phase of Call’s trial, Gabriel testified

regarding the events of that evening, including the fact that he

last saw Macedonio leaving with Call to move furniture and that


                                    5
Call later lured him to the cornfield under the same pretense,

where Call brutally attacked him with the baseball bat.                      Varden

also testified during the guilt phase, relating in detail the

conversations he had with Call about the plan to rob Macedonio and

his encounters with Call and Jenny on the evening of the murder.

Steve Cabe, an agent with the North Carolina State Bureau of

Investigation, testified about the investigation of the gruesome

crime scene and was also questioned and cross-examined about the

statements    Varden    made     to        the    authorities    during         that

investigation.     Agent       Cabe’s       statements   were        admitted    to

corroborate Varden’s incriminating testimony.

     At the conclusion of the guilt phase, Call was convicted by

the jury of first-degree murder on the basis of premeditation and

deliberation and under the felony murder rule. The jury also found

Call guilty of robbery with a dangerous weapon, first-degree

kidnapping, and assault with a deadly weapon with intent to kill

inflicting   serious   injury.        At    the   conclusion    of    a    separate

sentencing hearing, the jury recommended a sentence of death. Call

was appointed new counsel for his direct appeal.                          The North

Carolina Supreme Court affirmed Call’s convictions but vacated the

sentence of death because the state had been allowed to impeach

Call with evidence of his post-Miranda silence.                  The case was

remanded for resentencing only.            See Call, 508 S.E.2d at 524.




                                        6
     At the resentencing hearing, held on May 17, 1999, Call was

represented by his previous trial counsel, Anthony Lynch and Donald

Willey.   The state presented a number of witnesses, including Dr.

Thomas A. Sporn, a forensic pathologist who reviewed the autopsy

photographs and report prepared by Dr. Robert Thompson.           Dr. Sporn

testified that Macedonio’s “body showed a pattern of blunt-force

injuries to the head and facial area that could have been caused by

a baseball bat, a shovel handle, or a tire iron.”          Call, 545 S.E.2d

at 196.     There was “splitting of the victim’s skin and fracturing

of the victim’s skull at the forehead and beneath the left eye, as

well as splitting and tearing of the skin and fracturing of the

skull above the victim’s ear.”          Id.   “Dr. Sporn’s opinion with

regard to the number of blows the victim received was based, in

part, on Dr. Thompson’s assessment that the victim had suffered at

least eleven blows to the head.”        Id.

     The state did not, however, seek to reintroduce live testimony

by Gabriel or Varden.     Gabriel had returned to Mexico and the state

unsuccessfully attempted to return him to the United States on a

temporary visa.      Over Call’s objection and following a fairly

extensive hearing, Gabriel was declared unavailable as a witness

and his recorded testimony from the guilt phase was read into

evidence.      Varden’s   guilt-phase    testimony   was    not   read   into

evidence, nor was he called as a live witness.         Rather, the state

presented Varden’s version of the events surrounding the murder


                                    7
solely via the testimony of SBI Agent Cabe, who again recounted the

substance of what Varden had told him during interviews conducted

immediately after the murder.      Call’s trial counsel did not object

to the presentation of Varden’s statements in this manner, nor was

the state asked to demonstrate that Varden was unavailable as a

witness.    However, Call’s trial counsel did cross-examine Agent

Cabe regarding Varden’s statements, as he had done during the guilt

phase.    Call did not seek to introduce Varden’s recorded testimony

from the guilt phase or to call Varden as a live witness.

     At the conclusion of the resentencing hearing, the jury found

four aggravating circumstances:         (1) that the murder was committed

while Call was engaged in the commission of a kidnapping; (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 in which Call engaged that included

the commission by Call of other crimes of violence against another

person.     The   jury   found   only       six   of   twenty-three   submitted

mitigating circumstances, found that the mitigating circumstances

were insufficient to outweigh the aggravating circumstances, and

recommended a sentence of death, which the trial court imposed.

     On direct appeal, Call was appointed appellate counsel, who

raised a number of issues but no claim that Agent Cabe’s testimony

regarding Varden’s statements violated Call’s rights under the

Confrontation Clause.      The North Carolina Supreme Court found no


                                        8
error in the resentencing and affirmed the sentence of death, see

id. at 210, and the United States Supreme Court denied certiorari,

see Call, 534 U.S. at 1046.

       In 2002, Call was again appointed counsel, who initiated state

post-conviction proceedings by filing a motion for appropriate

relief (“MAR”) in the North Carolina Superior Court. Call alleged,

among other things, that his trial counsel were constitutionally

ineffective under the Sixth Amendment for failing to object on

Confrontation Clause grounds to Agent Cabe’s testimony.                            Call

alleged that his appellate counsel was also ineffective for failing

to raise, as plain error, a Confrontation Clause challenge to this

testimony.

       On June 17, 2003, the state court denied relief.                    The court

found that trial counsel could not “be found ineffective based on

a futile objection.”        J.A. 310.       In addition, the court found that

“Agent    Cabe’s    testimony   was     a    dry    second     hand   account     that

benefitted     Call    by    minimizing       the     retelling       of   the     acts

establishing       Call’s   guilt,”   and      that    trial    counsel’s        cross-

examination of Agent Cabe had been “strong and effective.”                         J.A.

311.     Thus, the court concluded that “[t]rial counsel performed

professionally and competently,” that “[a]ny error or errors that

counsel may have made did not prejudice Call,” and that there was

“no reasonable probability that, but for the error or errors, there

would have been a different result in the proceedings.”                    J.A. 319.


                                        9
The court also rejected Call’s claim that appellate counsel was

ineffective,      noting   that    “[a]ppellate      counsel,    an   assistant

appellate defender specializing in criminal appellate cases, filed

an   extensive,     well   researched   brief,    raising       numerous   valid

assignments of error” and could not be found ineffective based upon

an issue that was “without merit and that would not have been

successful on direct appeal.”              J.A. 311.     Finally, the court

concluded that there was “overwhelming evidence to support the

aggravating circumstances underlying Call’s sentence of death.”

J.A. 322.   The North Carolina Supreme Court denied Call’s petition

for writ of certiorari.       See State v. Call, 589 S.E.2d 130 (2003).

      In 2004, Call filed a second MAR, asserting that Agent Cabe’s

testimony violated his rights under the Confrontation Clause as

interpreted in Crawford v. Washington, 541 U.S. 36 (2004).                 Prior

to Crawford, an unavailable witness’s statement could be introduced

if the statement bore “adequate indicia of reliability.”               Ohio v.

Roberts, 448 U.S. 56, 66 (1980) (internal quotation marks omitted).

In Crawford, however, the Court held that the Confrontation Clause

bars the admission of testimonial statements of an unavailable

witness if the defendant has had no prior opportunity for cross-

examination.      See Crawford, 541 U.S. at 68.

      The   state    MAR   court   again    denied     relief,   holding    that

Crawford, issued after Call’s case became final, did not apply




                                      10
retroactively.3        However, the court addressed the merits of the

claim, reiterating that “[t]he details of Alan Varden’s statement

were introduced as a ‘dry second hand account’ which effectively as

possible minimized the retelling of the acts establishing Call’s

guilt” and that “[t]rial counsel’s cross-examination of Agent Cabe

regarding Varden’s statement was effective and without the risk of

denials by Varden.”       J.A. 341.      The court also found it significant

that “Call had a prior opportunity to cross-examine Alan Varden”

regarding his statements but “made no attempt to call Varden as a

witness      or   to   introduce   his    prior   sworn   testimony”   at   the

resentencing hearing, and that “[t]he jury [had already] rejected

Call’s attempt to blame Varden during the guilt phase of his

trial.”       J.A. 341.     Finally, the court concluded that “[t]he

aggravating circumstances were strongly supported by the details

provided by Gabriel Gonzalez, the medical examiner[,] and the

witnesses to the gruesome crime scene where Macedonio was found

beaten and ‘hog-tied’ with only nine dollars in his pocket.”                J.A.

342.       The North Carolina Supreme Court again denied certiorari

review.      See State v. Call, 604 S.E.2d 916 (2004).




       3
      Call does not pursue the Confrontation Clause challenge under
Crawford in this proceeding, nor would Crawford have constituted
“clearly established” law at the time of the resentencing. The
United States Supreme Court has also held that Crawford announced
a “new rule” of criminal procedure, not applicable retroactively to
cases already final on direct review. See Whorton v. Bockting, 127
S. Ct. 1173, 1184 (2007).

                                         11
     Pursuant to 28 U.S.C.A. § 2254, Call filed this petition for

a writ of habeas corpus in the district court.     The district court

denied the petition, see Call v. Polk, 454 F. Supp. 2d 475

(W.D.N.C. 2006), and denied a certificate of appealability.          We

granted a limited certificate of appealability to consider whether

Call’s rights to effective assistance of counsel under the Sixth

Amendment were violated by trial counsel’s failure to object to

Agent Cabe’s testimony at the resentencing hearing on Confrontation

Clause grounds and by appellate counsel’s failure to raise the

Confrontation Clause issue on direct appeal to the North Carolina

Supreme Court as plain error.     We now affirm.



                                 II.

                                  A.

     The   Sixth   Amendment   requires   that   “[i]n   all   criminal

prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence,” U.S. Const. amend. VI, and

that such assistance be effective, see Strickland v. Washington,

466 U.S. 668, 686 (1984).       In order to establish a claim for

ineffective assistance of counsel, a defendant is required to

demonstrate “that counsel’s performance was deficient” and that

“the deficient performance prejudiced the defense.”       Id. at 687.

To demonstrate inadequate performance, the defendant “must show

that counsel’s representation fell below an objective standard of


                                  12
reasonableness” measured by “prevailing professional norms.”           Id.

at 688.   To demonstrate prejudice, Call “must show that there is a

reasonable    probability   that,    but   for   counsel’s   unprofessional

errors, the result of the proceeding would have been different.”

Id. at 694.

     In death sentence challenges such as this, “the question is

whether there is a reasonable probability that, absent the errors,

the sentencer -- including an appellate court, to the extent it

independently reweighs the evidence -- would have concluded that

the balance of aggravating and mitigating circumstances did not

warrant death.”    Id. at 695.      “To avoid ‘the distorting effects of

hindsight,’ however, ‘a court must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance.’”       Williams v. Ozmint, 494 F.3d 478, 484

(4th Cir. 2007) (quoting Strickland, 466 U.S. at 689).                 “The

defendant (or petitioner) bears the burden of overcoming this

presumption.”     Id.

     The defendant’s right to effective assistance of counsel also

extends to the direct appeal of a criminal conviction and requires

the same showing of deficient performance and prejudice.               See

Evitts v. Lucey, 469 U.S. 387, 396 (1985); Bell V. Jarvis, 236 F.3d

149, 164 (4th Cir. 2000) (en banc).        Appellate counsel is accorded

a “‘presumption that he decided which issues were most likely to

afford relief on appeal.’”       Bell, 236 F.3d at 164 (quoting Pruett


                                      13
v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993)).                       “Counsel is not

obligated to assert all nonfrivolous issues on appeal, as ‘[t]here

can hardly be any question about the importance of having the

appellate advocate examine the record with a view to selecting the

most promising issues for review.’”                Id. (quoting Jones v. Barnes,

463 U.S. 745, 752 (1983)).              “Winnowing out weaker arguments on

appeal and focusing on’ those more likely to prevail, far from

being evidence of incompetence, is the hallmark of effective

appellate   advocacy,”        and    “counsel’s      failure        to    raise      a   weak

constitutional    claim       may     constitute       an    acceptable          strategic

decision    designed     to    avoid        diverting       the    appellate         court’s

attention from what [counsel] felt were stronger claims.”                                Id.

(alteration, citations, and internal quotation marks omitted).                             In

sum, while “it is still possible to bring a Strickland claim based

on counsel’s failure to raise a particular claim on direct appeal,

. . . it will be difficult to demonstrate that counsel was

incompetent.”      Id.    (internal          quotation       marks       and    alteration

omitted).      “Generally,      only        when   ignored        issues       are   clearly

stronger than those presented, will the presumption of effective

assistance of counsel be overcome.”                Id. (internal quotation marks

omitted).

                                            B.

     Because    the    state        court    decided    Call’s       Sixth       Amendment

ineffectiveness claims on the merits, we are constrained to review


                                            14
them in light of the limits on federal habeas review of a state

conviction 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

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


                                          15
by clear and convincing evidence.”               28 U.S.C.A. § 2254(e)(1) (West

Supp. 2006).


                                       III.

     The applicability of the Confrontation Clause in capital

sentencing   proceedings      has    not     been    “clearly   established”     by

Supreme Court precedents.         See Maynard v. Dixon, 943 F.2d 407, 414

n.5 (4th Cir. 1991) (noting that the question of whether the

Confrontation      Clause     applies       in    sentencing    proceedings     is

undecided); cf. United States v. Higgs, 353 F.3d 281, 324 (4th Cir.

2003) (noting that “[i]t is far from clear that the Confrontation

Clause applies to a [federal] capital sentencing proceeding”).

However, the question before us is not whether the Confrontation

Clause applies to capital sentencing hearings as a matter of

federal    law.     Because    North    Carolina       recognized     the   general

applicability of the Confrontation Clause in capital sentencing

proceedings at the time of Call’s resentencing, see State v.

Jaynes, 549 S.E.2d 179, 194-96 (N.C. 2001); State v. McLaughlin,

462 S.E.2d 1, 19 (N.C. 1995), the question before the state MAR

court was whether Call’s counsel were constitutionally ineffective

for failing to object to Agent Cabe’s testimony on Confrontation

Clause grounds and failing to raise the constitutional issue on

direct appeal as plain error.              The precise question before us,

however,    is    whether   the     state     court’s     rejection    of   Call’s

ineffectiveness      claims    is    contrary        to   or    an   unreasonable

                                        16
application        of    clearly       established       Supreme      Court    precedents

governing such Sixth Amendment claims.                        For the reasons that

follow, we conclude that it was not.

                                               A.

       We   begin       with   Call’s     claim       that   his     trial    counsel   was

ineffective for failing to object to Agent Cabe’s testimony as

violative of the Confrontation Clause and that the state court’s

rejection     of    this       claim    was    an     unreasonable      application      of

Strickland and its progeny.

       The basis for the state court’s rejection of this claim is

two-fold.      First, the state court concluded counsel were not

constitutionally          deficient      for    failing      to    object     because   any

Confrontation Clause objection to Agent Cabe’s testimony would have

been a “futile” one.             J.A. 310.          The state argues on appeal that

this is because the Confrontation Clause, as applied by the North

Carolina courts, did not prohibit Agent Cabe from testifying about

Varden’s statements because Varden had testified during the guilt-

phase of Call’s trial and was subjected to cross-examination at

that time.         Second, the state court concluded that counsel’s

failure to raise the issue was not constitutionally deficient

because the introduction of the substance of Varden’s testimony via

“a dry second hand account” of Agent Cabe “benefitted Call by

minimizing the retelling of the acts establishing Call’s guilt.”

J.A.   311.        In    other    words,       even    if    Agent    Cabe’s    testimony


                                               17
technically violated the Confrontation Clause and would have been

excluded had an objection been made, trial counsel’s decision to

allow introduction of the substance of that evidence via the “dry

second hand account” of Agent Cabe instead of the compelling first-

hand testimony of Varden himself was neither constitutionally

deficient representation nor prejudicial to Call.4               Because we

cannot say that the North Carolina state court’s adjudication of

this claim was an unreasonable one, Call is not entitled to habeas

relief.

                                     1.

      Pursuant    to    the    statute    governing   capital     sentencing

proceedings in North Carolina, “there shall not be any requirement

to resubmit evidence presented during the guilt determination phase

of the case, unless a new jury is impaneled, but all such evidence

is    competent   for    the    jury’s    consideration   in    passing   on

punishment.”      N.C. Gen. Stat. § 15A-2000(a)(3).            Additionally,

“[e]vidence may be presented as to any matter that the court deems

relevant to sentence, and may include matters relating to any of

the aggravating or mitigating circumstances . . . .             Any evidence

which the court deems to have probative value may be received.”

Id.




      4
      Because we deny relief on the merits of Call’s habeas claims,
it is unnecessary for us to address the state court’s additional
determination that the claims were procedurally barred.

                                     18
       In the context of a resentencing hearing, this means that “the

State [is] required to resubmit the evidence presented in the

original trial in order to have it considered [by the resentencing

jury], but such evidence [is] competent as a matter of law.”

McLaughlin, 462 S.E.2d at 18.                   The hearsay rules of evidence

governing admissibility and exceptions, see N.C.G.S. § 8C-1, Rule

804,    including      the   requirement        that    the       declarant   be    deemed

“unavailable” as that term is defined therein, are not controlling.

See McLaughlin, 462 S.E.2d at 18.                      “Instead, N.C.G.S. § 15A-

2000(a)(3) expressly provides that evidence presented during the

guilt determination phase of a capital case is competent and

admissible       as   a   matter    of   law     during       a    capital    sentencing

proceeding in the same case.”             Id. at 18-19.

       North Carolina also requires its courts to address, if raised,

the    issue    of    “whether     the   admission       of       that   recorded     prior

testimony       violates     defendant’s    confrontation            rights   under     the

federal and state constitutions.”               Id. at 19; see also Jaynes, 549

S.E.2d at 195; see also State v. Holmes, 565 S.E.2d 154, 165 (N.C.

2002) (noting that “[w]hile the Rules of Evidence do not apply to

a     capital    sentencing        proceeding      [in    North          Carolina],     the

constitutional right to confront witnesses does apply” (citations

omitted)).

       At the time of Call’s resentencing, North Carolina applied the

“residual trustworthiness” test of Ohio v. Roberts. “The principal


                                           19
purpose     of   [the]    confrontation      [right   was]    to   secure   to   the

defendant the right to test the evidence of the witnesses against

him    through    cross-examination.”          Holmes,       565   S.E.2d   at   165

(internal quotation marks omitted).              But, the “defendant’s mere

lack   of   an   opportunity     to   cross-examine      a    witness   d[id]    not

necessarily mean . . . that the defendant’s confrontation rights

were violated.”          Id.   If the court was “confident – as in the

context of hearsay falling within a firmly rooted exception – that

‘the declarant’s truthfulness is so clear from the surrounding

circumstances that the test of cross-examination would be of

marginal utility,’ the Sixth Amendment’s residual ‘trustworthiness’

test allow[ed] the admission of the declarant’s statements.”                     Id.

(quoting Lilly v. Virginia, 527 U.S. 116, 136 (1999); see also

Ohio, 448 U.S. at 66.          The admission of testimony failing to meet

the residual trustworthiness test was reviewed for harmlessness.

See Holmes, 565 S.E.2d at 165.

       In this case, Varden testified during the guilt phase, and his

testimony was subjected to vigorous and effective cross-examination

by Call’s trial counsel.          Agent Cabe was also allowed to discuss

Varden’s statements during the guilt phase as a prior consistent or

corroborating statement, and he too was effectively cross-examined.

And both the state and Call were free, under North Carolina rules,

to resubmit Varden’s guilt-phase testimony in the resentencing

proceeding if they had felt it necessary or helpful.                 Thus, unlike


                                        20
situations in which the state seeks to introduce testimony or

statements   of   witnesses   whom   the   defendant   has   never    had   an

opportunity to cross-examine, Call in fact had the opportunity to

cross-examine both witnesses during the guilt phase, had available

to him the recorded testimony (including his own cross-examination)

of these witnesses for reintroduction at any time, and cross-

examined Agent Cabe during the resentencing hearing.5              The state

contends that, because Call was afforded these opportunities, Agent

Cabe’s   testimony   relating    Varden’s     statements     was     evidence

“competent for the jury’s consideration in passing on punishment”

under the statute and, as applied by the North Carolina courts, not

violative of the Confrontation Clause.

     Purely from a Confrontation Clause standpoint, it troubles us

that Varden’s recitation of the events surrounding the murder was

not resubmitted in the resentencing proceeding via a reading of his


     5
      In McLaughlin, the court made no mention of a requirement
that the state demonstrate unavailability of a declarant for a
resentencing proceeding where the declarant had testified in the
guilt phase of the same proceeding and defendant’s “motivation to
cross-examine [the declarant] then was the same as his motivation
at the new capital sentencing proceeding”. McLaughlin, 462 S.E.2d
at 19.   And in Jaynes, the trial court allowed testimony of a
witness in the defendant’s first guilt/sentencing trial to be read
to the jury. The North Carolina Supreme Court noted that the trial
court had also found that the witness was unavailable to testify at
the defendant’s resentencing proceeding, a fact that was
uncontested, but also noted that “[s]uch evidence would normally be
presumed admissible at a later proceeding.” Jaynes, 549 S.E.2d at
195 (emphasis added).    In State v. Nobles, 584 S.E.2d 765, 768
(N.C. 2003), in contrast, the court was concerned with the
admissibility of the transcribed testimony of an unavailable
witness from a prior criminal proceeding against the defendant.

                                     21
prior testimony.     Rather, Agent Cabe presented the substance of

Varden’s   testimony    by    reading    his   handwritten   notes   of   the

interviews of Varden.        The substance was largely the same, but it

was nonetheless a different version of those statements.                  The

question before us, however, is not whether we believe that Agent

Cabe’s testimony would violate the Confrontation Clause in a

capital sentencing proceeding.          Nor are we called upon to decide

how the North Carolina statute affects North Carolina’s view of the

applicability of the Confrontation Clause in this context. Rather,

we are constrained to answer a more narrow question:            whether the

state court’s finding -- that trial counsel was not ineffective

because an objection under the Confrontation Clause would have been

futile in North Carolina -- was contrary to or an unreasonable

application of Supreme Court precedents governing the right to

constitutionally effective assistance of counsel. At a minimum, we

think it far from clear that the North Carolina trial court or the

North Carolina Supreme Court on appeal would have considered Agent

Cabe’s testimony to be a violation of the Confrontation Clause.

                                     2.

     Even if we were to assume that North Carolina would have

considered   Agent     Cabe’s    testimony     to   be   violative   of   the

Confrontation Clause, however, Call would still not be entitled to

habeas relief.     The state court also found that trial counsel’s

failure to lodge an objection was not deficient performance, and


                                     22
did not prejudice Call, because the introduction of the substance

of Varden’s testimony via the “a dry second hand account” of Agent

Cabe “benefitted Call by minimizing the retelling of the acts

establishing   Call’s   guilt.”    J.A.   311.   Having   reviewed   the

testimony of Varden and Agent Cabe in the state court proceedings,

we agree.

     During the guilt phase of Call’s trial, Varden offered a

compelling and damaging first-hand account of Call’s plans to rob

Macedonio, including his consideration of possible weapons and

crime locations, as well as his attempts to enlist Varden’s help

with the crimes.    Varden related in detail Call’s return to his

home on the evening of the murder, his confession to Varden that he

had struck Macedonio in the head, restrained, and robbed him, and

his attempt to enlist Varden’s help to kidnap and eliminate Gabriel

as a witness to the murder.       At one point during his testimony,

Varden even left the stand and demonstrated for the jury Call’s

description of how he had restrained Macedonio and left him to die

in the cornfield, including raising his right foot off of the floor

to demonstrate how Call had “hog-tied” Macedonio to keep him from

running.    In stark contrast to this live account of Varden’s

encounters with Call and his first-hand account of Call’s brutal

treatment of Macedonio and Gabriel, Agent Cabe related the general

substance of Varden’s testimony by reading from his notes in an

obviously dry, rote fashion, and often in sentence fragments.


                                   23
     Clearly, the state’s decision to present the substance of

Varden’s statements in this fashion did not afford Call’s counsel

the opportunity to repeat the live cross-examination of Varden that

it had conducted during the guilt phase.        And it is perhaps true,

as is now argued by Call, that Agent Cabe’s position in law

enforcement might have provided some cloak of validity to Varden’s

story. However, we cannot overlook the fact that trial counsel had

already attempted and failed to paint Varden as an uncharged

accomplice and unreliable witness before a jury, and that trial

counsel was free at any time to resubmit their cross-examination of

Varden in the resentencing proceeding, albeit at the risk that

Varden’s direct testimony would be read into the record as well or

that the state might then decide to call Varden as a witness.         By

allowing the substance of Varden’s prior testimony to come in via

a second-hand account of Agent Cabe and conducting a “strong and

effective” cross-examination of the latter, trial counsel was able

to bring out the points on cross-examination necessary to create

doubt in the validity of Varden’s statements without the problem of

Varden testifying and repeating live the testimony that was so

damning at the guilt phase.    As the state MAR court pointed out,

“[t]rial   counsel’s   cross-examination   of    Agent   Cabe   regarding

Varden’s statement was effective” but “without the risk of denials

by Varden.”    J.A. 341.    And, like the state court, we find it

significant that Call’s trial counsel had this “prior opportunity


                                 24
to cross-examine Alan Varden,” but “made no attempt to call Varden

as a witness or to introduce his prior sworn testimony.”            J.A. 341.

     We   are   also   unpersuaded    by   Call’s    reliance   upon   trial

counsel’s after-the-fact affidavits concerning their strategies, or

lack thereof, regarding Varden’s statements. Call’s lead attorney,

Mr. Lynch, filed an affidavit professing no strategic reason for

failing to object to Agent Cabe’s testimony.              Lynch provided no

elaboration regarding his thought process in this regard, however,

nor did he offer an opinion regarding whether he felt that the

decision, in hindsight, was a poor or otherwise deficient one.              In

contrast,   Call’s     second-chair    counsel,     Mr.   Willey,   filed   an

affidavit in support of Call’s MAR that was substantially more

self-critical.6      According to Mr. Willey, counsel felt that the

state had made an inadequate showing that Gabriel was unavailable

as a witness, but “made a strategic decision not to ask for a

continuance because we believed that bringing [Gabriel] or the

father of the victim into the courtroom would not have helped our

client’s case.”   J.A. 270.    In contrast, Willey asserted that they

“believed that having Alan Varden in the courtroom would have

helped our case,” but “did not object . . . because of the long-

standing holding of the North Carolina Supreme Court that the North

Carolina Rules of Evidence do not apply to capital sentencing


     6
      Lynch was very ill when he executed his affidavit and passed
away several months later. Willey executed his affidavit shortly
thereafter.

                                      25
hearings.”    J.A. 270-71.    Unlike Lynch, Willey leads the court to

believe that he at least was simply unaware that he could object to

Agent Cabe’s hearsay testimony under the Confrontation Clause or

otherwise, and he implies that such failure should be deemed

constitutionally deficient performance on their part.               Having

considered the respective affidavits, we find little utility in the

representations of either counsel.

     First,   it   is   well-settled    that   the   test   of   Strickland

performance is an objective one; Call was required to demonstrate

that his “counsel’s representation fell below an objective standard

of reasonableness” measured by “prevailing professional norms.”

Strickland, 466 U.S. at 688 (emphasis added).

     In all such cases,

     [j]udicial scrutiny of counsel’s performance must be
     highly deferential.     It is all too tempting for a
     defendant to second-guess counsel’s assistance after
     conviction or adverse sentence, and it is all too easy
     for a court, examining counsel’s defense after it has
     proved unsuccessful, to conclude that a particular act or
     omission of counsel was unreasonable. A fair assessment
     of attorney performance requires that every effort be
     made to eliminate the distorting effects of hindsight, to
     reconstruct the circumstances of counsel’s challenged
     conduct, and to evaluate the conduct from counsel’s
     perspective at the time.

Id. at 689 (citation omitted).      We can discern no good reason to

apply a different standard to self-scrutiny by defense counsel of

their own assistance.        Hindsight within the clarity of defeat

fosters such second-guessing and self-criticism, particularly on

the part of competent professionals who take seriously their

                                   26
obligation to zealously represent clients charged with capital

crimes.         The    objective     test   for    constitutionally         ineffective

assistance of counsel under the Sixth Amendment accounts for this

understandable tendency and keeps our focus not on what could have

been    done     differently,        but    on    whether    what     was    done    was

constitutionally effective representation.                    For the reasons set

forth above, the state court’s determination that the performance

of     Call’s    trial     counsel     was       constitutionally      effective      is

objectively reasonable.

       Second, we cannot overlook the fact that trial counsel,

despite Willey’s statements in his affidavit, appear to have been

aware that North Carolina applied Confrontation Clause protections

in     capital        sentencing     proceedings      at    the     time    of     Call’s

resentencing.          In fact, trial counsel objected to the introduction

of Gabriel’s testimony, presented a lengthy argument regarding the

propriety       of     introducing    the    testimony      under    both    the    North

Carolina Rules of Evidence and the Confrontation Clause, and

engaged the trial court in a specific discussion of the McLaughlin

case and its evidentiary and Confrontation Clause issues.                           Thus,

the objective record indicates that counsel made a conscious

decision to object to the reading of the hearsay testimony of

Gabriel (who was in Mexico) but not to object to the hearsay

testimony of Agent Cabe and risk having Varden brought in to

testify in person.          And, even if counsel had believed they had no


                                            27
valid objection to Agent Cabe’s testimony, they nonetheless made

the decision not to pursue the presentation of Varden’s testimony

via the reading of his prior testimony (as was done with Gabriel)

or to present him live themselves.     The fact that Call’s counsel

had available the testimony to refute any contradictory evidence,

did not do so, and professed no impediment to doing so, is strong

evidence that they were satisfied with the dry second-hand account

of Varden’s testimony and were pleased to have Varden and Gabriel,

arguably the two most damaging witnesses, both absent from the

resentencing proceeding.

                                 3.

     To conclude, the state court found that trial counsel were not

ineffective because any objection under the Confrontation Clause

would have been futile and, in any event, counsel’s failure to

object was neither deficient performance nor prejudicial to Call

under the circumstances.    We cannot say that either determination

was an unreasonable one.   It is not clear that North Carolina would

have considered Agent Cabe’s testimony, presented as it was in a

capital   resentencing   proceeding,   to   be   a   violation   of   the

Confrontation Clause.      And, in any event, we do not think it

deficient performance for defense counsel to choose not to object

to materials or testimony that presents the substance of damaging

evidence in a more innocuous fashion.       Here, Call has failed to

meet his burden of demonstrating that an objectively reasonable


                                 28
attorney would have objected to Agent Cabe’s testimony and, while

not required to do so, the state has made a strong showing that an

objectively reasonable attorney would have followed the exact path

counsel did here.

                                      B.

      For largely the same reasons, the state court’s rejection of

Call’s ineffective assistance of appellate counsel claim was also

not   an   unreasonable   application      of    Supreme      Court   precedents

governing such claims.       The state court rejected this claim on the

merits, noting that Call’s appellate counsel “filed an extensive,

well researched brief, raising numerous valid assignments of error”

and could not be found ineffective based upon an issue that was

without merit and that would have been unsuccessful on appeal.

      In   addition,   the    state   court     held   that    Call   failed   to

demonstrate “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different.”        Id. at 694.      As noted by the state court,

the aggravating circumstances in this case were strongly supported

by the details provided by Gabriel, Dr. Sporn, and the other

witnesses to the gruesome crime scene. And, because Call’s counsel

chose not to object to Agent Cabe’s testimony, there was simply no

need for the state to introduce the recorded testimony of Varden,

which all agree could have been admitted by the state court, or to

call him as a live witness.       As a strategic matter, it might have


                                      29
presented a stronger case for the state, but as a substantive

matter, the evidence had been presented and there was no need to

present cumulative evidence of Varden’s statements.             Had Call’s

counsel objected to Agent Cabe’s testimony, and that objection been

sustained by the trial court, the state would have been presented

with two options:   it could have called Varden as a live witness to

reiterate the testimony he gave during the guilt phase or it could

have asked to have Varden’s prior testimony read to the jury.           The

substance of the evidence would have remained the same.          And, even

if appellate counsel had raised a Confrontation Clause issue on

appeal, the appellate court would likely have found no plain error.

Accordingly, we also cannot say that the state court’s rejection of

Call’s   ineffective   assistance    of   appellate   counsel   claim   was

contrary to or an unreasonable application of clearly established

Supreme Court precedents governing such claims.



                                    IV.

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

denial of Call’s petition for writ of habeas corpus.

                                                                  AFFIRMED




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