                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-7216


JAMES MICHAEL FLIPPO,

                Petitioner – Appellant,

           v.

THOMAS L. MCBRIDE, Warden,

                Respondent - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:05-cv-00765)


Argued:   March 26, 2010                   Decided:   August 30, 2010


Before MICHAEL and DAVIS, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Ira Mickenberg, Saratoga Springs, New York, for
Appellant.   Silas B. Taylor, OFFICE OF THE ATTORNEY GENERAL OF
WEST VIRGINIA, Charleston, West Virginia, for Appellee.      ON
BRIEF: Darrell V. McGraw, Jr., Attorney General, Charleston,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            On October 23, 1997, a West Virginia jury convicted

petitioner      James     Michael           Flippo     of     murdering      his   wife.

Following a sentencing hearing, the trial judge sentenced him to

life without parole.            Flippo sought relief on direct appeal, but

the   Supreme     Court     of     Appeals        of   West     Virginia     ultimately

affirmed   his    conviction          and    sentence.        Having   exhausted    his

direct appeals, Flippo timely filed for habeas relief, first in

state court and then in federal court.                      As grounds for relief,

he argued (1) that the introduction of certain expert testimony

violated his right to due process because it was “objectively

false”    and    (2)    that     he    was    denied     effective     assistance    of

counsel when his trial lawyer opened the door to questions about

his sexuality.          The federal magistrate judge assigned to the

case recommended that the writ be denied, and the district court

adopted this recommendation.                Flippo appeals.       We affirm.



                                             I.

            At sometime between the hours of two and three in the

morning    on   April     30,    1996,       Flippo    called    911   for    emergency

assistance.      He told the operator that he and his wife had been

staying in a cabin in Babcock State Park when they were attacked

by an unknown intruder.               The operator notified the police, who

arrived on the scene at approximately 2:40 a.m.                              The police

                                              2
found Flippo distraught and suffering from minor injuries, later

identified as bruises on the front and back of his head, and

cuts and scratches on his legs.       He took them back to the cabin,

where they found his wife, Cheryl Flippo, lying on the floor

with “very visible and obvious injuries to her head.”            J.A. 724.

Indeed, the head injuries were so severe that brain matter was

exposed.     Paramedics   confirmed   that   she   was   dead.    Dr.   Zia

Sabet, assistant medical examiner in the West Virginia Medical

Examiner’s Office, later concluded that Cheryl Flippo had died

from blunt force injuries to the head, and that the death was a

homicide.

            In Flippo’s statement to the police, he claimed that

he had awoken in the middle of the night to see a masked man

lying between his bed and the wall.          He attempted to warn his

wife but was struck with a fire log, rendering him unconscious.

According to Flippo, when he regained consciousness, he found

the masked man cutting his thighs with a knife and threatening

to cut off his penis.     Before Flippo could react, the masked man

again knocked him out with the log.            When Flippo came to a

second time, the intruder was gone and his wife was unconscious.

Unable to wake his wife, Flippo ran to a pay phone outside the

park and called 911.

            Shortly after Flippo gave his statement, the police

began to give “some consideration to Flippo as a possible crime

                                  3
suspect    in      the    case   because         of    developing,      inconsistent        and

conflicting evidence.”              J.A. 728.          Evidence from the crime scene

showed no signs of forced entry and no footprints attributable

to an intruder.           While Flippo never mentioned the intruder using

any kind of restraint, inside the cabin the police found a roll

of duct tape with Flippo’s fingerprint on it and a small piece

of duct tape from that roll near his wife’s body.                                The police

also determined that the pattern of blood stains indicated that

“blood had been deliberately transferred to, or placed on, the

mattress      and     pillow,”       and        that    a     rocking    chair      had   been

deliberately placed in an overturned position after the murder.

J.A. 731.            Finally, Flippo’s insistence that he and his wife

had    been     stalked       prior        to     the       evening     in    question      was

substantiated by “[n]o credible or reliable evidence.”                                    J.A.

742.

              In     an    effort     to    assess          the   veracity     of    Flippo’s

statements regarding his own injuries, the police had Flippo

examined by Dr. Irvin Sopher, a retired chief medical examiner.

Sopher concluded that Flippo’s injuries were inconsistent with

his    story       and     eventually           gave     testimony       concerning       this

conclusion      at       Flippo’s    trial.            With    regard    to   the    cuts   on

Flippo’s leg, Sopher opined at trial that the pattern “we’re

seeing on these thighs is exactly what one would see with self-

inflicted injuries” with a nail or screwdriver rather than a

                                                 4
large knife.         J.A. 570.        With regard to Flippo’s bruises, Sopher

testified that “[i]n my opinion, there was no significant injury

to    his    head,       and    certainly    no      significant      injury,      even    in

consideration        of        that   48-hour       time    frame,    that   would       have

resulted in an unconscious state at the time that these events

occurred.”         J.A. 574.          Responding to a question about what he

would expect to find after a person had been hit with “a log or

a    heavy    or    blunt       object,    sufficient        enough    to    render      them

unconscious,” J.A. 561, Sopher testified:

       Well, you’d find a considerable bruise.        I mean,
       there’s no question about that. And you would find on
       the skin surface some abrasion or scraping and you
       would find, in all likelihood, from a blow from a
       blunt object . . . a split of the skin. . . . And the
       reason for that is that when one receives a severe
       blow to the head from a blunt object, there is, unlike
       in your extremities, such as your arm or your leg,
       there is no buffer.    There is no soft tissue of any
       substantial thickness underlying your forehead or your
       scalp to sustain the energy involved in the impact.

J.A. 562.

              The police also uncovered numerous pieces of evidence

suggesting that Flippo’s marriage was strained and that he had

motive to kill his wife.                  Flippo was a pastor at the Landmark

Church       of    God     in    Nitro,     Kanawha        County,    and    the     police

interviewed several of his congregants.                       Tamara Lynn Cremeans, a

congregant and friend of the Flippos, testified at trial that

James Flippo had asked her to pray for Cheryl Flippo only six

days   before       the    murder      because      of     Cheryl’s   “dislike      of    his

                                                5
friendship with Joel Boggess.”                     J.A. 733. Boggess was another

member of Flippo’s congregation as well as a business partner in

the    purchase    of     some      real    estate.         One   of     Flippo’s       fellow

pastors, the Reverend Timothy Allen Cremeans, testified at trial

that Flippo had expressed frustration over Cheryl’s opposition

to     his   business     venture       with       Boggess.       When       the     Reverend

Cremeans asked Flippo if Cheryl was ultimately going to go along

with it, Flippo answered “yes” because “I’m sick of her right

now.     She knows if she doesn’t go along with it, I’ll leave

her.”     J.A. 366, 733.

              There     was    also     evidence      that    Flippo         would      benefit

financially from his wife’s death.                     The couple had previously

been involved in a car accident and received a settlement of

$80,000.      The Flippos had put the money in a retirement account,

however,      requiring       the     permission       of    both      parties       for   any

withdrawal.        Also,       shortly      before     the    murder,        an    insurance

policy on Cheryl Flippo’s life had been issued in the amount of

$100,000.      Accordingly, Cheryl’s death gave her husband access

to almost $180,000.

              Finally,      there     was    some,     admittedly        scant       evidence

that     Flippo     and       Boggess       were     involved       in       a     homosexual

relationship.         In a briefcase at the crime scene the police

discovered        several        photographs         “depicting          a       man,    later

identified as Joel Boggess, in what appeared to be wet clothes,

                                               6
and the man was either putting on or taking off his jeans.”

J.A. 732.       These photos, together with Flippo’s friendship with

Boggess    and    his     wife’s   dislike       of    the    friendship,      prompted

Flippo’s trial counsel to raise the issue on cross-examination.

Boggess denied being a homosexual and testified that “to the

best of his knowledge, Flippo was not a homosexual.”                         J.A. 736.

The     trial    judge      had,   by   pre-trial            order,   forbidden     the

prosecution from raising the issue, and consequently it had not

been raised prior to the defense’s questions.

            On     this     evidence,   a       West   Virginia       jury    convicted

Flippo of first degree murder, and the trial judge sentenced him

to life without parole the following day.                       After several years

of appeals, Flippo’s conviction became final on November 27,

2002.     Flippo subsequently filed a timely state habeas petition

that was denied without an evidentiary hearing.                       In a detailed,

well-reasoned opinion, the state habeas judge — who also tried

the case — rejected both Flippo’s argument that Dr. Sopher’s

testimony amounted to “junk science and lies” and his argument

that his counsel provided ineffective assistance when he raised

the homosexuality issue.           J.A. 745-48.          The judge dismissed the

argument concerning Dr. Sopher’s testimony as “wholly without

merit” in light of Sopher’s clear competence to determine both

the extent of the injuries and their possible causes.                               With

regard    to     Flippo’s     ineffective        assistance      claim,      the   judge

                                            7
determined       that     Flippo’s     counsel       made        a    reasonable,          tactical

decision when he raised the issue of homosexuality and that, in

any event, there was no likelihood that the result would have

been different if he had not raised the issue.

               Flippo     timely      filed       this    application          for     a    federal

writ on September 15, 2005.                    The district court accepted the

magistrate’s       recommendation            to     deny    the        writ     and    overruled

Flippo’s objections.               Although the factual basis of Flippo’s

federal petition was identical to that of his state petition,

there    was     some   dispute       over    the    legal           theory    supporting       his

“junk science” argument.               The magistrate judge had assumed that

Flippo     was    arguing      that    Dr.     Sopher’s          testimony       violated       due

process solely because the prosecution knew the testimony was

false.     In his objections, however, Flippo argued that his due

process     objection        was      alternatively              based     on     “fundamental

fairness” under a different line of case law.                             J.A. 894-95.          The

district       court    held     that     this       legal           theory     had    not     been

presented to the state courts and therefore was unexhausted and

procedurally barred.            It rejected Flippo’s other arguments for

largely    the     same    reasons      as     the       state       courts.      This       appeal

followed.

                                              II.

               Flippo has consistently argued at every relevant stage

of   the    proceedings         that     the       introduction           of     Dr.       Sopher’s

                                               8
testimony violated his constitutional right to due process and

that   his    trial    lawyer’s          raising      of     the   homosexuality        issue

violated     his    right     to   effective         assistance      of     counsel.         The

first argument has been made — not always as consistently — on

alternative        grounds:        (1)    the       objective      falsity    of   Sopher’s

testimony itself violated due process; and (2) the fact that the

prosecution knew or should have known it was false violated due

process.        The state argues that the district court correctly

held that the first ground for Flippo’s due process claim is

unexhausted and procedurally barred.                       On Flippo’s other claims,

the state argues simply that they are without merit.

                                               A.

             Where the state courts have adjudicated a claim on the

merits, federal courts may not grant a writ of habeas corpus

unless    the      state    court    decision          (1)    “was    contrary         to,    or

involved     an    unreasonable          application         of,   clearly     established

Federal law” or (2) “was based on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding.”          28 U.S.C. § 2254(d).                 This court “reviews de

novo the district court's application of the standards of 28

U.S.C. § 2254(d) to the findings and conclusions of the [state]

court.”      McNeill v. Polk, 476 F.3d 206, 210 (4th Cir. 2007).

             Although       courts       may    reach      the     merits    of    a    habeas

petition to deny it, 28 U.S.C. § 2254(b)(2), they cannot issue

                                                9
the writ for unexhausted or procedurally defaulted claims.                       An

exhausted claim has been “fairly presented” to the state courts.

Matthews    v.     Evatt,   105    F.3d   907,    911   (4th   Cir.   1997).     A

procedurally defaulted claim is one that either has been, or

would be, rejected by the state courts, not on the merits, but

on the basis of an adequate and independent state procedural

rule.     Burket v. Angelone, 208 F.3d 172, 183 (4th Cir. 2000).

Courts may excuse a procedural default and reach the merits of a

claim only if petitioner can show “cause for the default and

prejudice resulting therefrom or that a failure to consider the

claims will result in a fundamental miscarriage of justice.”

Polk, 476 F.3d at 211.

                                          B.

            We need not decide whether any aspect of Flippo’s due

process    claim    is   unexhausted      because   the   claim   fails    on   the

merits.     Flippo has consistently cited three cases to support

both legal theories:          Miller v. Pate, 386 U.S. 1 (1967), Napue

v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States,

405 U.S. 150 (1972).              Under either of Flippo’s theories, his

claim     cannot    succeed    unless      he    demonstrates     that    Sopher’s

testimony was false.          See Miller, 386 U.S. at 7 (“More than 30

years ago this Court held that the Fourteenth Amendment cannot

tolerate a state criminal conviction obtained by the knowing use

of false evidence. . . . There can be no retreat from that

                                          10
principle here.”); Napue, 360 U.S. at 269 (“[I]t is established

that a conviction obtained through use of false evidence, known

to be such by representatives of the State, must fall under the

Fourteenth       Amendment.”);     Giglio,        405   U.S.    at    153-54    (holding

that   due       process    was   violated      where     a    cooperating        witness

testified        falsely    on    cross-examination            that    he   had     never

received     a    promise    of   non-prosecution        and    the    state    did   not

correct the falsehood).             We reject Flippo’s claim because the

state court’s determination that Dr. Sopher’s testimony was not

false was not unreasonable.

             After     finding     Dr.     Sopher       competent      to   offer     the

opinion that he did, the state habeas judge turned to Flippo’s

claim that Sopher’s testimony was false:

       The Petitioner’s characterization of Dr. Sopher’s
       testimony as “false” and “fabricated” and that the
       State aided in the presentation of such evidence which
       the State knew to be false is wholly and utterly
       without any merit.   For Dr. Sopher’s trial testimony
       to be deemed false or a lie it would have to be
       conclusively shown that his trial testimony was
       totally and wholly different from what he truthfully
       and actually believed at the time he so testified.
       Such was not the case here.

J.A. 746.         Flippo argues that the district and state courts

erred because they misconstrued what it means for testimony to

be   “false.”        Appellant’s     Br.     at    27-28.        Whether    a     witness

believes what he says is relevant to whether that witness is

lying, but not to whether what he says is the truth.                            A person


                                           11
could produce expert evidence that the earth is flat, believe

that the earth is flat, and still be wrong.                               With regard to

Sopher’s    testimony,        Flippo    has     proffered        the    statement          of    a

neuropsychologist, as well as several treatises and articles, to

support his claim that no expert could determine if an injury

caused     unconsciousness        through       a    mere        surface      examination.

Accordingly, Flippo argues, Sopher’s testimony that he could not

have been knocked unconscious must be false because it too was

based on a mere surface examination.

            Flippo’s         argument    does       not    fail       because     it       lacks

analytic coherency, but rather because it lacks support in the

case law.       In Napue and Giglio the false testimony at issue was

whether the prosecution had made promises to a witness in return

for his testimony — a fact directly observable to a lay person

and requiring no expert testimony.                        Napue, 360 U.S. at 265;

Giglio, 405 U.S. at 150-51.                   While Miller did involve expert

testimony, the falsity of the expert testimony given at trial

was not challenged by the state.                    Miller, 386 U.S. at 5.                      In

Miller    the     prosecution’s        case    hinged       on    a    pair     of     shorts,

allegedly owned by the defendant and stained with the victim’s

blood.      Id.    at   4.      Believing      that       the    shorts    were       in    fact

stained    with    paint,      the   prosecution           nevertheless         put     on      an

expert witness to corroborate the theory that the stains were

the victim’s blood.            Id. at 4, 6.          When the defendant produced

                                          12
his own expert witness in habeas proceedings to testify that the

stains were paint, the state did not object.                       Id. at 5.       Miller

did not therefore involve a battle of the experts, but rather

testimony recognized as false by both parties.                         Indeed, it is

far from clear that the result in Miller would have been the

same     if    the       state    had   contested      the    petitioner’s         expert

findings.

               These cases do not provide support for finding a due

process       violation     whenever     a   petitioner      comes    forward,      post-

trial,    with       additional      expert       evidence   challenging       a    trial

expert’s testimony.               Flippo should have presented his expert

evidence to a jury, not a habeas court.                        But even if Miller

could be stretched to cover this case, it was not unreasonable

for the state habeas court to find that Sopher’s testimony was

not “false” within the boundaries set by the Supreme Court for

that term.        See Winston v. Kelly, 592 F.3d 535, 554 (4th Cir.

2010)     (“For      a    state     court's       factual    determination         to   be

unreasonable under § 2254(d)(2), it must be more than merely

incorrect or erroneous.                 It must be sufficiently against the

weight of the evidence that it is objectively unreasonable.”)

(internal       citations        omitted).        Flippo’s   own     expert    evidence

largely concerned the general question of determining whether a

person was unconscious for a period time, rather than whether

the cause of Flippo’s specific injuries could have induced an

                                             13
unconscious state.          Consequently, we conclude that Flippo has

failed to carry his burden to show that Sopher’s testimony was

false, let alone that the state court’s contrary finding was

sufficiently      against       the     evidence       to     be    objectively

unreasonable.

                                        C.

          The    primary      issue     raised    by     Flippo’s   ineffective

assistance    claim   is    whether    his     trial   counsel’s    decision   to

cross-examine     Boggess       on     his     alleged      homosexuality      was

strategic.     Strategic decisions are insulated from challenge for

ineffective assistance.        Powell v. Kelly, 562 F.3d 656, 670 (4th

Cir. 2009) (“Once counsel conducts a reasonable investigation of

law and facts in a particular case, his strategic decisions are

virtually unchallengeable.”) (internal quotation marks omitted).

Accordingly,    if    the    state    courts    reasonably    determined    that

Flippo’s counsel’s decision was strategic, his claim must fail.

Flippo argues that the decision was not strategic, and that, in

the alternative, the issue presents a factual question that must

be resolved at a hearing.            Appellant’s Br. at 33-34.        The state

responds that there is no factual allegation which “if proven,

would demonstrate that Petitioner is entitled to relief under

the stringent standards of § 2254(d).”

          Flippo’s argument fails because he has failed to carry

his burden.     It is his burden to prove, by “clear and convincing

                                        14
evidence,”     any    facts   material      to    his     claim   that    contradict

factual findings of the state courts.                   28 U.S.C. § 2254(e)(1).

The state habeas court concluded that trial counsel’s decision

was strategic, and Flippo has not even alleged the existence of

contrary facts.        No allegations have been made, for example,

concerning what Flippo’s trial counsel believed with regard to

his decision.        With regard to whether the district court should

have granted Flippo’s request for a hearing, that decision rests

within   the    discretion      of    the     district       court,      Schriro   v.

Landrigan, 550 U.S. 465, 468 (2007), and there is no reason to

believe that the district court abused that discretion here.



                                       III.

          For    the    reasons      stated      above,    the    district    court’s

denial of petitioner’s application for a writ of habeas corpus

is affirmed.

                                                                             AFFIRMED




                                        15
