                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-1


JOHNNY RAY DAUGHTRY,

                                           Petitioner - Appellant,

          versus


MARVIN POLK, Warden, Central Prison, Raleigh,
North Carolina,

                                              Respondent - Appellee.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CA-98-787-5-F-HC)


Argued:   May 17, 2006                     Decided:   July 17, 2006


Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Andrew O. Whiteman, HARTZELL & WHITEMAN, L.L.P., Raleigh,
North Carolina, for Appellant.      Alvin William Keller, Jr.,
Assistant Attorney General, Leonard Michael Dodd, Special Deputy
Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee.   ON BRIEF: Seth A. Blum, KURTZ &
BLUM, P.L.L.C., Raleigh, North Carolina, for Appellant.       Roy
Cooper, Attorney General of North Carolina, Barry S. McNeill,
Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                             - 2 -
PER CURIAM:

      In September 1993, Johnny Ray Daughtry was convicted in

Johnston County, North Carolina Superior Court of, inter alia,

first-degree murder.      Following a sentencing hearing, the jury

recommended a sentence of death for the murder conviction and, in

accordance with the jury’s verdict, the state trial court sentenced

Daughtry to death for that conviction.        After exhausting his state

remedies, Daughtry filed a petition for a writ of habeas corpus in

the United States District Court for the Eastern District of North

Carolina, 28 U.S.C. § 2254, which the district court dismissed.1

On   December   27,   2005,   we   granted   Daughtry   a   certificate   of

appealability, id. § 2253. For the reasons stated below, we affirm

the district court’s dismissal of Daughtry’s habeas petition.



                                      I

      As found by the North Carolina Supreme Court on direct appeal,

the facts of this case are as follows:

      The State’s evidence tended to show that the victim was
      killed on 9 April 1992. At that time she was living with
      her boyfriend, Michael Hopkins, in his Smithfield
      apartment. Hopkins testified that he last saw the victim
      alive at about 4:00 p.m., just before he went to bed.
      When he awoke around 7:30 p.m., he discovered the
      victim’s body lying in a pool of blood near the front


      1
      Initially, Daughtry named James French, former Warden of the
Central Prison in Raleigh, North Carolina as respondent.       Now,
Marvin Polk holds this position and has been substituted as
respondent, see Fed. R. Civ. P. 25(d)(1). For ease of reference,
we will refer to respondent as “the State” throughout this opinion.

                                    - 3 -
steps outside his apartment.       Hopkins ran to his
landlady’s house and called the police; he waited at the
end of the driveway until the officers arrived.

The Smithfield Police Department received a call at 7:38
p.m., and officers arrived at Hopkins’ apartment a few
minutes later. They found the victim’s naked body face
down next to the apartment steps. Her head lay in a pool
of blood, and a stick protruded from her rectum. Her
left arm extended along the left side of her body, palm
up; her right index finger was in her mouth. SBI Special
Agent David McDougall examined the scene.       He found
several articles of the victim’s clothing on the ground
near the body and a three-inch-thick log containing blood
and strands of hair atop a woodpile not far away. He saw
no signs of a struggle or other violence inside the
apartment.

Dr. Karen Chancellor, a forensic pathologist who
performed the autopsy, testified that she found multiple
bruises and abrasions on the victim’s head, face, and
neck. The lower jawbone was fractured in two places, and
the back of the scalp had four separate lacerations, each
exposing bone. She also found multiple skull fractures,
hemorrhaging around the brain and brain stem, and bruises
of the brain tissue.     Chancellor testified that both
internal and external lacerations existed in and around
the vagina and rectum. Further, the injuries around the
rectal area were consistent with an object being rotated
in the rectum.     She opined that death resulted from
blunt-force trauma to the head, the victim had been hit
at least five times, and the log McDougall found could
have been used to inflict the injuries.

SBI Special Agent Scott Worsham testified that hair taken
from the log was consistent with the victim’s.         He
removed the stick from the victim’s rectum under
McDougall’s supervision.    The stick had been embedded
about six and one-half inches into the rectum and
inserted at such an angle that it could have penetrated
some other part of the body, such as the vaginal area.

SBI Special Agent Mark T. Boodee, an expert in forensic
serology, testified about the results of DNA testing,
which revealed that blood samples taken from the pants
defendant wore on the night of the murder contained DNA
material that matched the victim’s. SBI Special Agent
Peter Duane Deaver, another expert forensic serologist,

                         - 4 -
testified that blood found on the log and on defendant’s
pants was the same type as the victim’s blood but not the
same as defendant’s.

Defendant testified that he and the victim had lived
together for about three and one-half years; they broke
up in March 1992. On the day of the murder he left work
around 3:00 p.m., drank some beer on the way home, and
also drank a few beers at a local tavern. He arrived at
his grandmother’s house, where he was living, between
5:30 and 6:00 p.m. He then went to Mike Hopkins’ home at
about 6:30. He and the victim sat on the steps outside
the apartment talking for a while. The next thing he
remembered was being two or three blocks away from
Hopkins’ apartment, walking in an agitated state.     He
noticed a little blood on his hand. He then met some
friends and drank with them from 8:30 until about 11:00
p.m. He did not get drunk.

Two psychiatric experts testified for defendant.      Dr.
Robert Rollins testified that defendant had average
intelligence and no major disturbance of mood or
thinking. Defendant was distrustful, expected people to
mistreat him, and lacked concern about other people.
Rollins diagnosed defendant with alcohol abuse and
dependence as well as adjustment disorder, which included
depression.   Dr. Billy Royal diagnosed defendant with
depression, alcohol and marijuana abuse, and personality
disorder.    He considered the disorder to include
immaturity,   impulsivity,    and   dependence   in   the
relationship with the victim. Both doctors opined that
defendant’s ability to form a specific intent to kill and
to premeditate and deliberate was impaired on 9 April
1992. Both also noted defendant’s history of violence
toward the victim.

At sentencing the State relied on its guilt phase
evidence and also introduced an eight-by-ten-inch
photograph that depicted the stick protruding from the
victim’s rectum. This photograph had been excluded from
the guilt phase.

Defendant’s sister testified at sentencing that defendant
supported the victim as best he could and always helped
his two deaf brothers.      She also stated that their
father, who was not at home much due to his work, hit
defendant and assaulted their mother. Further, defendant
used various drugs, including marijuana and cocaine.

                         - 5 -
     Psychiatric testimony offered at sentencing showed that
     defendant grew up in a dysfunctional family environment
     that included abuse of his mother and severe punishment
     of defendant for his transgressions. He became dependent
     upon alcohol early in his teenage years; this dependence
     exacerbated the difficulty he experienced in dealing with
     the end of his relationship with the victim. According
     to the expert testimony, defendant suffered from
     depression,   substance   dependence,   and   personality
     disorder at the time of trial.

State v. Daughtry, 459 S.E.2d 747, 752-54 (N.C. 1995).

     On May 11, 1992, Daughtry was indicted by a state grand jury

sitting in Johnston County, North Carolina on charges of first-

degree murder and first-degree sexual offense.             On September 30,

1993, a jury convicted Daughtry of both offenses.                   The murder

conviction rested on both premeditation and the felony murder rule,

with the underlying felony being the first-degree sexual offense.

     At the sentencing phase of the bifurcated proceeding, the

State   submitted,   and   the    jury   found   the     existence    of,   two

aggravating circumstances: (1) the capital felony was committed

while Daughtry was engaged in a sexual offense; and (2) the capital

felony was especially heinous, atrocious, or cruel. The jury found

one statutory mitigating circumstance (the capital felony was

committed while Daughtry was under the influence of mental or

emotional disturbance) and fourteen of the nineteen nonstatutory

mitigating   circumstances       submitted.      After    finding    that   the

aggravating circumstances outweighed the mitigating circumstances,

the jury unanimously recommended a sentence of death, which the

state trial court accordingly imposed.

                                    - 6 -
     On   direct   appeal,   the   Supreme    Court   of   North   Carolina

affirmed, finding no error in either phase of Daughtry’s trial.

See id. at 754-70.   On January 16, 1996, the United States Supreme

Court denied Daughtry’s petition for a writ of certiorari.             See

Daughtry v. North Carolina, 516 U.S. 1079 (1996).

     On April 29, 1996, the Superior Court for Johnston County set

an execution date for Daughtry.            The court also appointed two

attorneys to assist Daughtry in the preparation of a motion for

appropriate relief (MAR).     On June 24, 1996, Daughtry moved for a

stay of execution, which was denied.        Daughtry appealed the denial

of his motion for stay of execution to the North Carolina Supreme

Court. The North Carolina Supreme Court granted relief in the form

of allowing Daughtry time to prepare and file a MAR on or before

October 28, 1996.

     On August 19, 1996, Daughtry filed a pro se “Motion to Cancel

Appeal,” wherein he requested that his stay of execution be lifted

and his sentence of death carried out.             Upon inquiry by the

Superior Court of Johnston County, Daughtry, through counsel,

indicated that he did not wish to withdraw his motion to withdraw

his appeal.   The court then ordered that Daughtry be evaluated to

determine his competency to decide to forego his post-conviction

remedies and proceed to execution.

     On October 21, 1996, a hearing was held in Johnston County

Superior Court to determine Daughtry’s competency.          At the outset


                                   - 7 -
of the hearing, the court asked Daughtry if he wished to continue

with his “Motion to Cancel Appeal,” but Daughtry declined to answer

the question.     The court then asked Daughtry if he wished to have

his post-conviction counsel represent him and Daughtry indicated

that he did so wish.     Among the evidence submitted at the hearing

was the mental health evaluation of Dr. Robert Rollins, a forensic

psychiatrist, and a “record of contact” between Daughtry and Dr.

M.F. Baloch, Daughtry’s treating psychiatrist.

     The record of contact indicated that, on August 7, 1996, Dr.

Baloch found that Daughtry: (1) “denied any symptoms”; (2) was

“clinically       stable”;   (3)    “denied        auditory    and    visual

hallucinations”; (4) denied “suicidal or homicidal ideations”; (5)

denied depression; and (5) had a stable mood.

     According to Dr. Rollins’ evaluation, he met Daughtry on two

occasions, once on September 24, 1996 and again on October 8, 1996.

Dr. Rollins noted that Daughtry’s speech was “clear” and that his

thinking    was    “organized.”     He     also    noted    that   Daughtry’s

perception, concentration, orientation, memory, and intellectual

functions were “intact.”     During the interviews, Daughtry stated a

desire to withdraw his appeal and proceed to execution to “escape

the stress of his present situation.”             Daughtry complained that

“voices” were “driving [him] to do this.”                  According to Dr.

Rollins, these auditory hallucinations were affecting Daughtry’s

judgment.     Ultimately, Dr. Rollins diagnosed Daughtry as having


                                   - 8 -
major depression with psychotic features, although he could not

rule out other possible diagnoses, including malingering. Based on

the available information before him, Dr. Rollins concluded that

Daughtry had a mental disorder which impaired his ability to make

reasoned   and     rational   judgments.        According   to   Dr.   Rollins,

Daughtry understood “his position with regard to the law and the

nature and object of the proceedings against him.”               However, Dr.

Rollins indicated that Daughtry’s “ability to cooperate with his

attorneys and conduct a defense in a rational manner” was impaired.

Consequently, Dr. Rollins concluded that Daughtry was not competent

to make the decision to withdraw his appeals, although he did add

that    Daughtry    was   “competent     to   [be   executed]    in    that    he

understands that transaction.” Dr. Rollins further concluded that,

if Daughtry “were less depressed, he likely would not wish to

withdraw his appeals and overall would be more comfortable.”

       Following the October 21 hearing, the Johnston County Superior

Court entered an order on October 24, 1996 finding that: (1)

Daughtry’s   “decision     to   remain   mute    was   a   decision    made”   by

Daughtry and was not the result of any mental impairment; (2)

Daughtry’s “conduct, considered in light of all of the evidence,

appears to be a dilatory tactic to delay post conviction remedies

allowed by law”; and (3) Daughtry was “willfully” refusing to

assist his attorneys even though he is in fact able “to assist his

attorneys to the extent necessary in pursuing post-conviction


                                    - 9 -
remedies.”      In light of these findings, the court held that

Daughtry’s “Motion to Cancel Appeal” was “null and void” because

Daughtry refused to answer the court’s question concerning his

desire   to   abandon    post-conviction      remedies     and   proceed       with

execution.     The court also held that Daughtry was competent to

assist his attorneys.2

     On October 28, 1996, Daughtry filed his MAR, asserting a claim

under Brady v. Maryland, 373 U.S. 83 (1963), and twenty-three

claims of ineffective assistance of counsel.               While his MAR was

pending, Daughtry filed a motion “Questioning the Capacity of the

Defendant.”     The motion asserted, inter alia, that Daughtry was

unable to assist post-conviction counsel.               On June 30, 1997, a

hearing was held in Johnston County Superior Court concerning

Daughtry’s competency to assist counsel.            At the hearing, Daughtry

proffered     the   expert   testimony   of   a     psychiatrist,   Dr.    James

Bellard.

     Dr. Bellard testified that Daughtry was suffering from major

depression with psychotic features, the same diagnosis offered by

Dr. Rollins at the October 21, 1996 competency hearing.              According

to Dr. Bellard, Daughtry was able to understand the nature and the

object   of   the   proceedings   against     him    and   was   aware    of    his


     2
      Daughtry appealed the Johnston County Superior Court’s
October 1996 competency determination to the Supreme Court of North
Carolina, which denied Daughtry’s petition for a writ of certiorari
on February 7, 1997. See State v. Daughtry, 483 S.E.2d 181 (N.C.
1997).

                                   - 10 -
surroundings, the reason he was in prison, and the reason he was

sentenced to death. Dr. Bellard also found Daughtry’s memory to be

intact and that Daughtry had low to normal intelligence.

      Dr. Bellard also testified as to Daughtry’s ability to consult

with counsel.     Dr. Bellard testified that Daughtry was unable to

assist his defense in a rational or reasonable manner because of

his ambivalence about going forward with his appeals or ending them

and   being   executed.     According     to    Dr.   Bellard,   Daughtry’s

ambivalence   was   “complicated”    by   his    depression   and    auditory

hallucinations.      Dr.   Bellard   testified     that   Daughtry    “hasn’t

demonstrated an ability to be consistent about what is before him

and how to work with attorneys.”       Dr. Bellard added that Daughtry

“is unclear about what he wishes to do, and I believe, is unclear

about the role he may or may not play in all this.”           Although Dr.

Bellard testified that alleged auditory hallucinations were one

reason Daughtry wanted to end his appeals, Daughtry also gave him

clear and rational reasons to end his appeals apart from any

voices; for example, Daughtry indicated that he wanted to end his

appeals because: (1) “he didn’t see any sense in” appealing; (2)

“he wanted an end to the waiting”; and (3) the appeals were “taking

a toll on his family.” Dr. Bellard indicated that being ambivalent

about a decision which would end one’s life was normal.              Like Dr.

Rollins, Dr. Bellard was unable to determine whether Daughtry was

truthful about the voices he heard.            The state court asked if a


                                 - 11 -
motive for Daughtry’s malingering could be to forestall the death

penalty, to which Dr. Bellard answered in the affirmative.

     At    the   June    30,   1997    hearing,   the     State   introduced    the

testimony of Sally Gainey, the victim’s mother. She testified that

she had known Daughtry for ten years.               While he was dating the

victim, Daughtry lived in Gainey’s home. Gainey had loved Daughtry

much like she would one of her own children.                  As a result of a

letter from Daughtry, Gainey visited Daughtry at Central Prison in

February 1997.          During her conversation with Daughtry, Gainey

detected no difference in Daughtry’s demeanor from the Daughtry she

had always known.        Daughtry also told Gainey that he was not going

to help his counsel with his post-conviction proceeding.

     On July 1, 1997, based upon the evidence and the testimony

proffered at the June 30 hearing, the Johnston County Superior

Court found that Daughtry’s “depression and extreme ambivalence”

towards being executed did not render him unable to assist his

post-conviction counsel.             The court also found that Daughtry was

making a deliberate choice not to cooperate with his counsel.                   The

court found that Daughtry was able to both “understand the nature

and object of the proceedings against him” and “comprehend his own

situation in reference to the proceedings.”                 As a result of the

evidence    before      it,    the    court   concluded    that   there   was   no

justifiable reason for the court to reconsider or vacate its

October 24, 1996 order finding Daughtry competent to proceed.


                                        - 12 -
     Free to decide the MAR on the merits, the state habeas court

denied Daughtry’s MAR.      On July 8, 1998, the Supreme Court of North

Carolina denied Daughtry’s petition for a writ of certiorari.           See

State v. Daughtry, 510 S.E.2d 660 (N.C. 1998).

     On   October   13,    1998,   Daughtry   filed   his   federal   habeas

petition in the United States District Court for the Eastern

District of North Carolina. On August 27, 2003, the district court

held that Daughtry was not entitled to federal habeas corpus relief

and dismissed the petition.        Thereafter, Daughtry filed a timely

notice of appeal.

     While his appeal in this court was pending, a “Petition for

Adjudication of Incompetence and Application for Appointment of

Guardian” was filed in Wake County Superior Court by one of

Daughtry’s counsel.       In the petition, Daughtry’s counsel sought to

have Daughtry declared incompetent based on, among other things,

Daughtry’s refusal to meet with and communicate with his counsel.

Daughtry’s counsel also indicated that, in a letter authored by

Daughtry in November 2003, Daughtry stated a desire to “cancel all

appeals.”

     As a result of Daughtry’s stated desire to withdraw his appeal

to this court, on March 25, 2004, the State filed in this court a

motion for remand. In its motion, the State argued that Daughtry’s

appeal should be remanded to the district court for a hearing on

and determination of Daughtry’s desire to pursue his appeal to this


                                   - 13 -
court.   On April 21, 2004, we granted the State’s motion and

remanded the case to the district court for the limited purpose of

making factual findings concerning whether Daughtry desired to

appeal the denial of his federal habeas petition and any related

competency questions.

     In preparation for the proceeding before the district court,

the State had Dr. Robert Brown, a forensic psychiatrist, evaluate

Daughtry.    In his evaluation, Dr. Brown noted that Daughtry’s

“speech was clear and well articulated.”            He also noted that

Daughtry’s thoughts were “logical and linear.”              He noted that

Daughtry’s   “concentration    was    good”   and   he    “followed      along

appropriately   during   the   evaluation.”     Dr.      Brown   noted    that

Daughtry wanted to “cease his appeals” because it “was his choice,

his life, and that [he] would pay for his crime.”                  Daughtry

indicated that his decision to withdraw his appeal was not due to

“hearing voices.”   He also indicated that his attorneys instructed

him “not to work on the case.”       During his meeting with Dr. Brown,

Daughtry was able to list the books that he had read recently and

to describe in detail his religious views.

     Dr. Brown also described several letters Daughtry wrote Sally

Gainey, the victim’s mother.      In the letters, Daughtry expressed

extreme remorse and an intention to ignore his counsels’ advice not

to meet Gainey and her family alone.          According to Dr. Brown,




                                 - 14 -
nothing in the letters suggested that mental illness was driving

Daughtry’s decision to withdraw his appeal.

     Dr. Brown diagnosed Daughtry as suffering from “Personality

Disorder, NOS (Cluster B), . . . with episodes of depression and

auditory   hallucinations   flowing   from   the   Personality   Disorder

diagnosis during times of intense stress.”           On the subject of

Daughtry’s competency, Dr. Brown concluded:

     It is clear that [Daughtry] understands the legal
     processes that he has faced and that he has the ability
     to function within the legal process if he chooses to do
     so. There is not present a mental disease or defect that
     would cause him to be unable to meaningfully consult with
     attorneys if he chose to do so. Mr. Daughtry has the
     necessary transactional abilities to proceed with post
     conviction appeals if he chose to do so. . . .        Mr.
     Daughtry is not mentally retarded and his diagnosed
     mental disorders and the medications he takes for them
     would not impair his ability to understand the appeals
     process in a factual and rational manner. In short, his
     cognitive functioning is good.

     Mr. Daughtry understands the adversarial process. He has
     the ability to disclose pertinent facts and to voice
     choices he has made, and his behavior at this time is not
     inappropriate or disorganized.         His decision to
     discontinue the appeals at this time, in my professional
     opinion to a reasonable degree of medical certainty, is
     not coerced by mental illness.       Therefore, with all
     relevant facts considered I am of the professional
     opinion to a reasonable degree of medical certainty, that
     Mr. Daughtry is seeking to waive his appeals in a
     knowingly and intelligent manner that is also voluntary
     in that it is free of coercion from mental illness. He
     is not ambivalent about his choice to cease his appeals.
     Mr. Daughtry believes that his [trial] was fair, and he
     seems to concur with the sentence given to him. He has
     expressed remorse.    Mr. Daughtry is weary of life on
     death row, but he is not suicidal. If by miracle the
     governor should pardon him, he would not seek to die.
     Mr. Daughtry knows why the state is seeking to execute


                                - 15 -
     him, and he understands the concept of death and the
     method of lethal injection.

     On May 9, 2005, while the case was pending in the district

court, Daughtry’s counsel filed a motion in the district court

requesting the court to declare moot all issues on remand based

upon a letter written by Daughtry indicating that he wished to

continue his appeal and was willing to assist his counsel in the

appellate process.   On June 3, 2005, the district court found that

Daughtry was competent and wished to pursue his appeal.                 In

reaching its decision, the court relied on Dr. Brown’s evaluation

and Daughtry’s letter indicating that he did not wish to withdraw

his appeal.   After the case returned to this court, we granted

Daughtry a certificate of appealability.



                                     II

     Daughtry first argues that the State withheld or suppressed

critical crime scene evidence such that he was prejudiced during

the guilt and sentencing phases of his trial in violation of Brady.

According to Daughtry, the State withheld several reports by the

investigating agents from the North Carolina State Bureau of

Investigation (SBI), including the May 6, 1992 report by SBI

Special Agent P. Duane Deaver and the April 20, 1992 and April 16,

1993 reports by SBI Special Agent W. Scott Worsham.         In a nutshell,

Daughtry   claims   that   these   reports   would   have   provided   the

following materially exculpatory evidence: (1) the victim’s shorts

                                   - 16 -
and panties were soaked with urine; (2) additional logs containing

blood were found at the crime scene; and (3) bicycle tire tracks

were found near the victim’s body.3

     The prosecution’s failure to disclose evidence favorable to an

accused “violates due process where the evidence is material either

to guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.”   Brady, 373 U.S. at 87.   Moreover, the

prosecutor’s duty encompasses both impeachment and exculpatory


     3
      We note that the Brady claim Daughtry presses in this court
was not raised either in state court or the district court below.
In state court, Daughtry’s Brady claim alleged that the State
withheld evidence concerning Sally Gainey’s desire not to see
Daughtry executed.     Here, Daughtry’s Brady claim relates to
allegedly undisclosed SBI investigative reports.         Obviously,
Daughtry’s failure to raise his present Brady claim in state court
brings into play the principles of exhaustion and procedural
default. Ordinarily, we are precluded from considering the merits
of a defaulted claim absent a showing of cause and prejudice or a
fundamental miscarriage of justice. See Harris v. Reed, 489 U.S.
255, 262 (1989). Moreover, Daughtry’s failure to raise the claim
in the court below is problematic, as this court usually does not
entertain on appeal claims not raised below, see Singleton v.
Wulff, 428 U.S. 106, 121 (1976) (noting the general rule that a
federal appellate court does not consider an issue not addressed by
the court below), and, at this late stage, Daughtry needs
authorization from this court to file a successive petition to
raise the claim, see 28 U.S.C. § 2244.        As a result of the
procedural posture of the case, Daughtry filed during the pendency
of this appeal a motion to amend the record to include the
allegedly undisclosed materials and a motion to remand the case to
the district court to allow the court to address Daughtry’s new
Brady claim in the first instance. We grant Daughtry’s motion to
amend.   However, we deny the motion to remand because, for the
reasons stated in this opinion, Daughtry’s Brady claim fails on the
merits even if we accept his allegation that the allegedly
undisclosed evidence was willfully or inadvertently withheld by the
State. Because Daughtry’s Brady claim fails on the merits, we need
not tackle the procedural questions that arise from Daughtry’s
failure to raise this claim in state court or the court below.

                              - 17 -
evidence, and it includes evidence that is “known only to police

investigators and not to the prosecutor.”                 Kyles v. Whitley, 514

U.S.       419,   438   (1995).         Along   these   lines,    “the   individual

prosecutor has a duty to learn of any favorable evidence known to

the others acting on the government’s behalf.”                       Id. at 437.

Significantly, a Brady violation has three essential elements: (1)

the evidence must be favorable to the accused; (2) it must have

been       suppressed     by      the    government,     either     willfully   or

inadvertently; and (3) the suppression must have been material,

i.e., it must have prejudiced the defense at trial.                  Strickler v.

Greene, 527 U.S. 263, 281-82 (1999).               Prejudice exists when there

is a reasonable probability that, had the prosecution disclosed the

suppressed evidence, the result of the trial would have been

different.        Id. at 289.4

       As to the urine soaked shorts and panties, Special Agent

Deaver’s May 6, 1992 report indicates that the victim’s shorts and

panties, which were recovered near her body, were “wet[, and]

smell[ed] of urine.”           According to Daughtry, had his trial counsel

known that the shorts and panties were soaked with urine, his trial

counsel would have been able to demonstrate that the victim was

dead before her vaginal injuries occurred.               According to Daughtry,

if the sexual offense occurred after death, he was not only


       4
      For purposes of our discussion, we will assume that the
allegedly undisclosed evidence was willfully or inadvertently
withheld by the State.

                                          - 18 -
innocent of the sexual offense charge but also ineligible for the

death penalty under the murder in the commission of a sexual

offense aggravating circumstance.

       With regard to this evidence, Daughtry has failed to show that

the result of either phase of his trial would have been different

had the evidence concerning the victim’s shorts and panties been

disclosed.     First, we note that the North Carolina Supreme Court

has rejected the argument that a sexual offense can only occur

while the victim is alive.        See State v. Thomas, 407 S.E.2d 141,

149-50 (N.C. 1991) (holding that a sexual offense can occur after

death as long as the sexual offense and the death are so connected

as to form a continuous chain of events).           In Thomas, the defendant

argued that the evidence was insufficient to support his felony

murder    conviction   because    the    evidence    established    that   the

insertion of a telephone receiver into the victim’s vagina occurred

after her death.     Id. at 148-49.      The North Carolina Supreme Court

rejected this claim, concluding that, “[b]ecause the sexual act was

committed during a continuous transaction that began when the

victim was alive, . . . the evidence was sufficient to support

defendant’s conviction for first-degree sexual offense.”              Id. at

149; see also id. at 150 (“While the first-degree sexual offense

(the insertion of the receiver into her vagina) could have occurred

before or after the victim’s death, clearly, it occurred near the

time     of   the   victim’s     final    demise     during   a    continuous


                                   - 19 -
transaction.”).      In our case, the sexual offense, like the sexual

offense in Thomas, was part of a continuous transaction.                 Because

the sexual offense in this case was committed as part of a

continuous transaction, Daughtry was guilty of committing a sexual

offense and eligible for the death penalty under the murder in the

commission of a sexual offense aggravating circumstance.

       Second, even if North Carolina recognized the principle that

the    sexual    offense   had   to   occur    before    death,   the   evidence

concerning the urine soaked shorts and panties would have been of

little help to Daughtry considering the evidence presented at his

trial.     When asked whether a person at death is likely to “loose

control of their bowels and bladder,” Dr. Chancellor, who performed

the autopsy on the victim, did not indicate that it was likely that

a person loses control of either function.               In fact, in reference

to bowel movements, Dr. Chancellor specifically stated that there

was “no particular rule about that.”            Considering this testimony,

it is clear that the presence of urine on the victim’s shorts and

panties was immaterial to the question of when the victim died.

Moreover, the use of this evidence by Daughtry had an obvious

downside.       It would have opened the door for the State to argue

that   Daughtry’s     actions    on   the   night   of   the   murder   were   so

threatening that they caused the victim to wet her shorts and

panties.        Thus, the use of this evidence obviously would have

caused more harm than good.       In short, a review of the record leads


                                      - 20 -
to   the   inescapable   conclusion   that   Daughtry   would   have   been

convicted of capital murder and sentenced to death even if the

evidence concerning the urine soaked shorts and panties was placed

before the jury.

      We now turn to Daughtry’s claim that the State’s alleged

failure to disclose the evidence concerning the additional logs

containing blood and the evidence concerning the bicycle tire

tracks violated Brady.      According to Daughtry, had this evidence

been disclosed, his trial counsel would have been in a position to

argue that the victim was either attacked by more than one person

or that another person committed the sexual offense.

      We harbor no doubt that, had the evidence concerning the

additional logs and bicycle tire tracks been disclosed to the

defense, the result of Daughtry’s trial and sentencing would not

have been different.      The case against Daughtry was exceedingly

strong.    Daughtry’s own testimony placed him at the crime scene.

He testified that, immediately prior to the victim’s death, they

talked “a good 10, 15 minutes”; that the next thing he remembered

was being “two or three blocks away”; that he “was real hyper [and]

agitated”; that he “noticed there was a little bit of blood on

[his] hand”; and that he wanted to go back to the Hopkins’

residence to see “if she was okay, because she was the last person

[he] was with.”




                                 - 21 -
     Dr.   Karen   Chancellor   testified   that   the   victim    suffered

multiple bruises and abrasions to her head, face, and neck.             The

victim’s lower jawbone was fractured in two places and the back of

her scalp had four separate lacerations, each exposing bone.            Dr.

Chancellor also found multiple skull fractures, hemorrhaging around

the brain and brain stem, and bruises of the brain tissue.              Dr.

Chancellor testified that both internal and external lacerations

existed in and around the vagina and rectum. Further, the injuries

around the rectal area were consistent with an object being rotated

in the rectum.     Dr. Chancellor opined that death resulted from

blunt-force trauma to the head, the victim had been hit at least

five times, and a log found at the scene could have been used to

inflict the injuries.

     Forensic evidence also tied Daughtry to the crime scene. Hair

removed from the log was consistent with the victim’s hair.           Blood

found on the log and on Daughtry’s pants was the same type as the

victim’s blood but not the same as Daughtry’s blood.              Also, the

results of DNA testing revealed that blood samples taken from the

pants Daughtry wore on the night of the murder contained DNA

material that matched the victim’s DNA.

     In view of all of this overwhelming evidence, the jury would

have unhesitatingly rejected Daughtry’s speculative assertion that

somebody else (other than Daughtry and the victim) was present at

the crime scene.     There is no meaningful hair or blood evidence


                                 - 22 -
suggesting that another person was present at the crime scene.

Daughtry’s own testimony in the case does not suggest that another

person was present and, in fact, he openly acknowledged that he was

the last person with the victim.                     In his confession, Daughtry

indicated that he hit the victim, but did not know how many times

he had done so.         After Daughtry was told by Detective Fred Dees

that he had inserted a “tree limb” into the victim’s rectum,

Daughtry cried and asked Lieutenant R.J. Cuddington “to place a

bullet      between     his      eyes.”         Given    this    evidence,     it     is

understandable why the main thrust of Daughtry’s defense centered

on the lack of premeditation and deliberation.                         Finally, the

additional logs and bicycle tire tracks evidence was of marginal,

if   any,    exculpatory         value.        The   blood   stains   found   on    the

additional logs is not surprising considering that Detective Walter

Martin found the three-inch-thick log containing the victim’s blood

and strands of her hair atop a woodpile a short distance from the

victim’s body.        The presence of bicycle tire tracks found at the

crime scene was not surprising when one considers that the location

of the tracks was near the entrance of the apartment.                   Thus, while

this   evidence       was   at    best    of    marginal     exculpatory    value    if

introduced,     the    jury      would    not    have   placed   reliance     on    such

speculative evidence to conclude that there was another person

present at the crime scene.




                                          - 23 -
     In sum, when one considers the cumulative effect of all of the

allegedly undisclosed exculpatory or impeachment evidence and the

role it would have played in the trial, it simply cannot be said

that there is a reasonable probability of a different result during

either phase of Daughtry’s trial.      Cf. Strickler, 527 U.S. at

291-96 (denying relief where, in light of the considerable forensic

and other physical evidence linking petitioner to the crime,

petitioner did not show a reasonable probability of a different

outcome had the suppressed evidence been disclosed).5




     5
      Daughtry also restates his Brady claim as a claim under North
Carolina law. According to Daughtry, the State withheld materially
exculpatory or impeachment evidence from Daughtry’s trial and post-
conviction counsel in violation of North Carolina General Statute
§ 15A-1415(f), which, among other things, requires the “State, to
the extent allowed by law, [to] make available to the capital
defendant’s counsel the complete files of all law enforcement and
prosecutorial agencies involved in the investigation of the crimes
committed or the prosecution of the defendant.” Unfortunately for
Daughtry, a federal court may grant habeas relief only on the
ground that the petitioner is in custody in violation of the
Constitution or laws or treaties of the United States.       See 28
U.S.C. § 2254(a); see also Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (emphasizing that “it is not the province of a federal
habeas court to reexamine state-court determinations on state-law
questions. In conducting habeas review, a federal court is limited
to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States.”). Because Daughtry’s § 15A-
1415(f) claim rests solely upon an interpretation of North Carolina
case law and statutes, it is simply not cognizable on federal
habeas review. See Wright v. Angelone, 151 F.3d 151, 157-58 (4th
Cir. 1998) (refusing to entertain under Virginia law the
petitioner’s claim that the state trial court lacked jurisdiction
over two counts of petitioner’s indictment); Smith v. Moore, 137
F.3d 808, 822 (4th Cir. 1998) (refusing to entertain claim that
jury instruction misstated South Carolina law).

                              - 24 -
                                III

     Daughtry also claims that the competency determinations made

in state court (on October 24, 1996 and July 1, 1997) were

unreasonable under clearly established federal law as determined by

the Supreme Court.   We disagree.

     We may grant a habeas petition with respect to any claim

adjudicated on the merits in state court only if the state court

decision was either contrary to, or an unreasonable application of,

clearly established federal law as determined by the Supreme Court

or the decision was based on an unreasonable application of the

facts.   Robinson v. Polk, 438 F.3d 350, 354-55 (4th Cir. 2006).   “A

decision of a state court is contrary to clearly established

federal law if the state court arrives at a conclusion opposite to

that reached by the Supreme Court on a question of law or if the

state court decides a case differently than the Supreme Court has

on a set of materially indistinguishable facts.”        Id. at 355

(citation, internal quotation marks, and alterations omitted).     “A

state court adjudication is an unreasonable application of federal

law when the state court correctly identifies the governing legal

rule from the Supreme Court’s cases but applies it unreasonably to

the facts of a particular case or applies a precedent in a context

different from the one in which the precedent was decided and one

to which extension of the legal principle of the precedent is not

reasonable or fails to apply the principle of a precedent in a


                               - 25 -
context       where     such   failure    is     unreasonable.”        Id.    at   355

(citations, internal quotation marks, and alterations omitted).

       The Due Process Clause of the Fourteenth Amendment prohibits

states from trying and convicting mentally incompetent defendants.

Pate v. Robinson, 383 U.S. 375, 384-86 (1966).6                    The test for

determining competency is whether “[a defendant] has sufficient

present ability to consult with his lawyer with a reasonable degree

of rational understanding--and whether he has a rational as well as

factual understanding of the proceedings against him.”                       Dusky v.

United States, 362 U.S. 402, 402 (1960). “‘Not every manifestation

of mental illness demonstrates incompetence . . . ; rather, the

evidence must indicate a present inability to assist counsel or

understand the charges.’”             Burket v. Angelone, 208 F.3d 172, 192

(4th       Cir.    2000)   (quoting     United    States   ex   rel.    Foster     v.

DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984)).                       Similarly,

“neither          low   intelligence,    mental     deficiency,   nor        bizarre,

volatile, and irrational behavior can be equated with mental

incompetence.”          Burket, 208 F.3d at 192.7


       6
      The Constitution also prohibits the execution of the insane.
See Ford v. Wainwright, 477 U.S. 399 (1986). Daughtry does not
raise a Ford claim at this time and, therefore, we need not address
whether he is competent to be executed.
       7
      We note that the Supreme Court has not conclusively resolved
the question of whether a person being held under a sentence of
death has a right to be competent to pursue collateral review of a
state conviction in state court. The constitutional requirement of
competence to stand trial certainly does not imply a coordinate
requirement on collateral review, as habeas is a “secondary and

                                         - 26 -
      Whether a defendant is competent is a question of fact.                    See

Mackey v. Dutton, 217 F.3d 399, 412 (6th Cir. 2000) (competency to

stand trial).    We also must accord the state court’s determination

that Daughtry was competent to assist counsel a presumption of

correctness under 28 U.S.C. § 2254(e)(1). See Demosthenes v. Baal,

495   U.S.   731,   735    (1990)    (concluding    that       a    state   court’s

competency    determination         is   entitled   to     a       presumption   of

correctness on federal habeas review).              Thus, “we presume the

[state] court’s factual findings to be sound unless [Daughtry]

rebuts the ‘presumption of correctness by clear and convincing

evidence.’”     Miller-El v. Dretke, 125 S. Ct. 2317, 2325 (2005)

(quoting 28 U.S.C. § 2254(e)(1)).

      In this case, on two occasions, the Johnston County Superior

Court found Daughtry competent to assist his counsel on post-

conviction review.        With regard to the October 24, 1996 competency

determination, on the one hand, there was ample evidence before the

Johnston County Superior Court indicating that Daughtry had the

ability to communicate and assist counsel.           Dr. Rollins noted that


limited” component of the criminal justice process, Barefoot v.
Estelle, 463 U.S. 880, 887 (1983), where many of the defendant’s
rights no longer attach, like the right to counsel.             See
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (holding that
there is no constitutional right to counsel on habeas). However,
for purposes of our discussion, we will assume that clearly
established federal law as determined by the Supreme Court requires
that a capital habeas petitioner be competent on state habeas to
assist his state habeas counsel. This assumption is of no help to
Daughtry, because, for the reasons stated in the opinion,
Daughtry’s competency claim fails on the merits.

                                     - 27 -
Daughtry’s     speech    was    “clear”   and    that   his    thinking     was

“organized.”        He   also    noted    that    Daughtry’s        perception,

concentration, orientation, memory, and intellectual functions were

“intact.”    Dr. Rollins also noted that Daughtry understood “his

position with regard to the law and the nature and object of the

proceedings against him.”         Dr. Rollins also could not rule out

malingering as a cause for Daughtry’s auditory hallucinations. The

“record of contact,” authored by Dr. Baloch (Daughtry’s treating

psychiatrist) less than two weeks prior to the time Daughtry filed

his “Motion to Cancel Appeal,” found that Daughtry: (1) “denied any

symptoms”; (2) was “clinically stable”; (3) “denied auditory and

visual   hallucinations”;       (4)   denied     “suicidal     or     homicidal

ideations”; (5) denied depression; and (5) had a stable mood.

Finally, when questioned by the court at the hearing, Daughtry

expressed his verbal assent to having counsel represent him fully

in post-conviction proceedings, but, when asked if he wanted to

proceed with his “Motion to Cancel Appeal,” Daughtry refused to

answer or in any way respond to the court.

     On the other hand, there was evidence before the Johnston

County Superior Court suggesting that Daughtry was unable to assist

his counsel.      Dr. Rollins diagnosed Daughtry as having major

depression   with   psychotic     features.      Dr.    Rollins     found   that

Daughtry’s alleged auditory hallucinations impaired Daughtry’s

ability to assist counsel.


                                   - 28 -
     In    this       case,   the   Johnston    County     Superior     Court   took

testimony, weighed the evidence, found that Daughtry was willfully

refusing to assist his post-conviction counsel in order to delay

his post-conviction proceeding, and concluded that Daughtry was

competent       and    able   to    assist     his   post-conviction        counsel.

Obviously, the court was in the best position to make credibility

determinations, assess the probative value of the evidence, and

resolve conflicts in the evidence.             The evidence in the record, as

credited    by    the     court,    unquestionably        supports    the    court’s

conclusion that Daughtry was competent and able to assist his post-

conviction counsel. Thus, Daughtry has failed to rebut the court’s

October    24    1996    competency     finding      by   clear   and   convincing

evidence.

     With regard to the July 1, 1997 competency determination,

again, on the one hand, there was ample evidence before the

Johnston County Superior Court indicating that Daughtry had the

ability to communicate and assist counsel.                  At the hearing, Dr.

Bellard testified that Daughtry was able to understand the nature

and the object of the proceedings against him and was aware of his

surroundings, the reason he was in prison, and the reason he was

sentenced to death. Dr. Bellard also found Daughtry’s memory to be

intact and that Daughtry had low to normal intelligence.

     Dr. Bellard also testified as to Daughtry’s ability to consult

with counsel. Although Dr. Bellard testified that alleged auditory


                                       - 29 -
hallucinations were one reason Daughtry wanted to end his appeals,

Daughtry also gave him clear and rational reasons to end his

appeals apart from any voices; for example, Daughtry indicated that

he wanted to end his appeals because: (1) “he didn’t see any sense

in” appealing; (2) “he wanted an end to the waiting”; and (3) the

appeals were “taking a toll on his family.”                  Like Dr. Rollins, Dr.

Bellard was unable to determine whether Daughtry was truthful about

the voices he heard.            The state court asked if a motive for

Daughtry’s malingering could be to forestall the death penalty, to

which Dr. Bellard answered in the affirmative.

      At   the    June    30,   1997   hearing,       the    State    introduced   the

testimony of Sally Gainey, the victim’s mother.                      As a result of a

letter from Daughtry, Gainey visited Daughtry at Central Prison in

February 1997.           During her conversation with Daughtry, Gainey

detected no difference in Daughtry’s demeanor from the Daughtry she

had always known.         Daughtry also told Gainey that he was not going

to help his attorneys with his post-conviction proceeding.

      On the other hand, there was evidence before the Johnston

County Superior Court suggesting that Daughtry was unable to assist

his counsel.       Dr. Bellard testified that Daughtry was unable to

assist his defense in a rational or reasonable manner because of

his ambivalence about going forward with his appeals or ending them

and   being      executed.       According      to     Dr.    Bellard,     Daughtry’s

ambivalence      was     “complicated”   by     his    depression       and   auditory


                                       - 30 -
hallucinations.      Dr. Bellard also testified that Daughtry “hasn’t

demonstrated an ability to be consistent about what is before him

and how to work with attorneys.”          He added that Daughtry “is

unclear about what he wishes to do, and I believe, is unclear about

the role he may or may not play in all this.”       Finally, Dr. Bellard

indicated that he believed that Daughtry was being honest when he

indicated that he was suffering from auditory hallucinations.

     Like the October 24, 1996 competency determination, we cannot

disturb   the   Johnston    County   Superior   Court’s   July   1,   1997

competency determination. There was evidence before the court that

allowed it to find that Daughtry was making a deliberate choice not

to cooperate with his post-conviction counsel.        While the auditory

hallucinations were one explanation for Daughtry’s decision not to

assist his post-conviction counsel, there were other reasons, that

if credited, would support the court’s competency determination.

Unquestionably, the court was at liberty to conclude that the

alleged   auditory    hallucinations   did   not   undermine   Daughtry’s

ability to assist his counsel.         Thus, it cannot be said that

Daughtry has rebutted by clear and convincing evidence the court’s

July 1, 1997 competency determination.




                                 - 31 -
                               IV

     For the reasons stated herein, the judgment of the district

court is affirmed.

                                                        AFFIRMED




                             - 32 -
