                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-7510


DONALD JOHN SCANLON,

                  Petitioner – Appellant,

           v.

SID HARKLEROAD,

                  Respondent – Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:07-cv-00498-TDS-WWD)


Argued:   December 6, 2011             Decided:   February 23, 2012


Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Janet Moore, JANET MOORE, ATTORNEY AT LAW LLC, Wyoming,
Ohio, for Appellant.       Mary Carla Hollis, 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Unpublished opinions are not binding precedent in this circuit.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:

     A   North     Carolina    jury    convicted       Donald     John    Scanlon      of

murdering Claudine Harris, who had employed him as a handyman.

After    exhausting    his     state   remedies,        Scanlon    filed       this    28

U.S.C.    § 2254     action,    raising       eight    claims     of    error.        The

district court ultimately awarded summary judgment to the State

of   North    Carolina    and    dismissed          Scanlon’s     petition.           The

district     court     also      granted       Scanlon      a     certificate          of

appealability (COA) on a single claim: whether his attorneys

rendered ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668 (1984), by failing to review and use

Harris’ medical       records    at    trial.         Cognizant    of    the   Supreme

Court’s recent reminder that a habeas petitioner’s burden for

meeting Strickland is sufficiently high that “even a strong case

for relief does not mean the state court’s contrary conclusion

was unreasonable,” Harrington v. Richter, 131 S.Ct. 770, 786

(2011), we affirm the district court.



                                        I.

     The     North    Carolina     Court       of     Appeals     (the    “Court       of

Appeals”) summarized the trial evidence as follows:

     [Donald Scanlon] worked for Claudine Wilson Harris as
     a handyman from October 1995 through January 1996 [in
     Durham, North Carolina].     [Scanlon] lived at Ms.
     Harris’ residence until she discovered that he had
     been misusing her credit cards and forging checks on

                                          2
     her checking account.       After Ms. Harris evicted
     [Scanlon] from her home and sought to take out
     warrants against him, [Scanlon] threatened to kill
     her.   Ms. Harris told her sister, Barbara Breeden,
     that she feared that [Scanlon] had a key to her home
     and she felt that she should have the locks changed.
     Ms. Harris never changed the locks to her residence;
     however, as a result of her fears for her own safety,
     Ms. Harris’ nephew, Carlos Breeden, and his girlfriend
     came to live with her at the end of January 1996.

     At around 9:00 p.m. on 27 February 1996, Carlos
     Breeden found Ms. Harris’ body in her bed with a
     plastic bag wrapped around her head and tied in a
     knot. Ms. Harris’ sweatshirt was pushed up, revealing
     her underclothes, and her sweat pants and under pants
     were partially pulled down.   Near her bed was a soup
     can punched with holes, described as a pipe for
     smoking controlled substances, and a torn-up letter to
     [Scanlon] expressing her feelings for him.           A
     toxicology report revealed that she had cocaine
     metabolites in her blood.

     On 10 March 1996, authorities arrested [Scanlon] in
     Syracuse, New York (on unrelated charges) and found in
     his possession several of Ms. Harris’ credit cards, as
     well as a blank check from Ms. Harris’ business
     checking account.   The arresting officers also seized
     pieces of paper containing Ms. Harris’ address, date
     of birth, social security number, and her First Union
     checking account number.    Meanwhile, in New Orleans,
     where [Scanlon] admittedly abandoned Ms. Harris’ car a
     few days before, police officers found three keys in
     the car, none of which fit the lock to Ms. Harris’
     home.

State    v.    Scanlon,    626   S.E.2d   770,   775       (N.C.    Ct.   App.    2006)

(Wynn,    J.).     Based    on   the   foregoing,      a    grand    jury   indicted

Scanlon on March 18, 1996, charging him with the first-degree

murder    of     Harris,    felonious     breaking     and     entering      of    her

residence, and felonious larceny and possession of her car and

her credit cards.


                                          3
     At trial, the State introduced forensic evidence indicating

that Scanlon was in Harris’ home near the time of her death:

     A cigarette butt in Harris’ house, not present two
     days before her death, contained saliva that matched
     Scanlon’s saliva.   Scanlon’s head hairs and one pubic
     hair were found on Harris’ bed.    Further, on the day
     of Harris’ death Scanlon pawned a gold ring similar to
     one that Carlos Breeden owned and which went missing
     following Harris’ death.

Scanlon v. Harkleroad, 740 F.Supp.2d 706, 709 (M.D.N.C. 2010).

     The State also put forth evidence that Scanlon told his

arresting agents that he was abducted from his motel room in

Durham the weekend before Harris’ murder and, after being held

for several days, was released, given Harris’ car and credit

cards, and told to leave the area.

     Scanlon’s trial counsel, Brian Aus and Lee Castle, pursued

a two-track defense by contending that Harris’ death was not a

homicide—but    rather     a   suicide   or    an    accidental   death   due   to

cocaine-induced       coronary      blockage        during   attempted    sexual

asphyxiation—and that Scanlon was not in Durham at the time of

Harris’   death.      To      support   the   theory    of   accidental   death,

Scanlon’s expert, Dr. Lawrence Harris, testified that, based on

“the plastic bag, cocaine metabolites, ‘new clots’ blocking the

bypass artery in Ms. Harris’ heart, her disarranged clothing,

and the round bed where her body was discovered,” Harris died

during attempted sexual asphyxiation.                  State v. Scanlon, 626

S.E.2d    at   776.      On    cross-examination,        however,   Dr.   Harris

                                         4
admitted    that    he   never      reviewed      Harris’    medical      records    and

conceded that it was likely someone else put the bedcovers over

her and tied the knot in the plastic bag.

      To counter this defense, the State elicited testimony from

Dr.   Robert     Thompson,      a    forensic      pathologist      who     supervised

Harris’ autopsy.         Dr. Thompson testified that Harris’ cause of

death     was   asphyxiation        and    that    the    manner     of     death    was

homicide.       Consistent with this view, Dr. Thompson testified

that Harris had bruising around her eye that could have been

caused by a fist and marks on her arms that could have been

caused by someone grabbing her.

        Also at trial, Scanlon put forth evidence that Harris was

hospitalized       in    December     1995,       had    severe    coronary     artery

disease, had likely suffered a heart attack in the past, and had

undergone       coronary    bypass        surgery.          The    State,     however,

represented      that    Harris’     surgery      had    helped    her    regain    some

functionality and corrected her heart problems.

      The jury convicted Scanlon of all charges and, following a

penalty phase, he was sentenced to death.                         On May 5, 2000,

Scanlon filed a Motion for Appropriate Relief (MAR) arguing,

inter alia, that his counsel was ineffective under Strickland

for failing to use Harris’ medical records at trial to show that

her heart condition was extremely serious and to establish that

she   had   a   history    of    clinical      depression,        making    suicide    a

                                           5
possible cause of death.                     The MAR court held an evidentiary

hearing, during which Scanlon’s trial attorneys both testified.

In addition, Scanlon presented testimony from multiple expert

witnesses      opining       on        Harris’       medical         records,      including      a

cardiologist,          two            forensic           pathologists,          a      clinical

psychologist,         and    a     psychiatrist.               These    experts      testified,

generally, that Harris was a good candidate for “sudden death”

given her heart condition, particularly if she ingested cocaine.

Regarding her mental health records, Scanlon’s experts testified

that Harris had significant risk factors for suicide and that

her   death    was     consistent         with       a    successful        suicide    attempt.

However,      only     one       expert      would        affirmatively         testify      that

suicide was the cause of death, but even that expert allowed

that he “[did not] have any problem with undetermined” as the

cause of death because “[t]here are features of virtually every

single manner of death in this case.”                          (J.A. 2445).

       Dr.   Thompson        also      testified         at    the    MAR   hearing,      and    he

concluded that although the medical records would have led him

to    consider    suicide         or    undetermined           as     the   cause    of   death,

ultimately the records did not alter his trial testimony that

Harris’ cause of death was asphyxiation and that the manner of

death was homicide.              Dr. Thompson testified that he based this

conclusion       in   part       on    the   scene        of    the    death—including          the

bedcovers     placed        over      Harris     and     the     plastic     bag    around      her

                                                 6
head.       In    addition,        Dr.   Daniel      Gianturco,      Harris’        treating

psychiatrist,        testified       that    he    did     not    believe      Harris       was

suicidal and that he did not see signs of suicidal ideation.

      The    MAR    court     issued     its      ruling     on    February     25,      2004,

concluding that counsel was not constitutionally ineffective in

its representation as to the guilt phase of Scanlon’s trial, but

that counsel was ineffective regarding the sentencing phase. 1

The   State      declined     to    pursue     the    death       penalty      at    the   new

sentencing         hearing,        and    Harris       was        sentenced         to     life

imprisonment without parole.                   Relevant here, Scanlon appealed

the MAR court’s denial of relief as to the guilt phase, and the

Court of Appeals affirmed.               State v. Scanlon, 626 S.E.2d 789-91.

The Court of Appeals recognized that Scanlon’s claim arose under

Strickland, and that Scanlon had the burden of establishing that

counsel’s        performance       was   deficient       and      that   the    deficiency

caused him prejudice.               The Court of Appeals affirmed the MAR

court’s ruling denying Scanlon relief, concluding that “even if




      1
        The MAR court based its determination regarding the
sentencing phase on the State’s use of the aggravating factor
that the murder was “especially heinous, atrocious, or cruel.”
The MAR court concluded that the medical records could have
disputed the State’s position that the murder was cruel and
heinous because Harris suffered “air hunger” before her death.
In the MAR court’s view, the medical records could have shown
that, given Harris’ heart condition, her death would have
occurred quickly. (J.A. 4311-4317).



                                             7
trial counsel’s actions were objectively unreasonable, [Scanlon]

was not prejudiced.”        Id. at 791.

       The     Supreme    Court    of    North     Carolina        denied     Scanlon’s

request for discretionary review and dismissed his appeal, and

this     § 2254      petition     followed.           After    Scanlon      filed     his

petition, both parties filed cross motions for summary judgment.

The petition was referred to a magistrate judge, who recommended

granting the State’s motion and dismissing Scanlon’s petition.

The magistrate judge concluded that trial counsel’s performance

was deficient within the meaning of Strickland but that Scanlon

could not establish prejudice.                 Scanlon timely filed objections

and, relevant here, the district court concluded that the Court

of     Appeals’      decision     was    an     unreasonable         application      of

Strickland as to the deficient-performance prong.                           Scanlon v.

Harkleroad, 740 F.Supp.2d at 728-30.                    The district court also

found,       however,    that    the    Court    of    Appeals’      ruling    on     the

prejudice       prong     was     not    an     unreasonable        application        of

Strickland.       Id. at 730.      In reaching this conclusion, the court

noted “significant evidence of Scanlon’s guilt that would not

have been controverted by the use of the Records at trial,”

including      the    physical    evidence      tending       to   place    Scanlon    in

Harris’ residence around the time of the murder, the evidence of

Scanlon’s prior threats against Harris, and the evidence that



                                           8
Harris had a “potential altercation” at or near the time of her

death.   Id.

     The district court therefore granted the State’s motion for

summary judgment and dismissed Scanlon’s petition.                             The court

granted Scanlon a COA on his Strickland claim.                          See 28 U.S.C.

§ 2253(c)(2).



                                        II

                                        A.

     On appeal, Scanlon agrees with the district court that the

Court of     Appeals    unreasonably        applied       Strickland’s      deficient-

performance prong.        Scanlon argues, however, that the district

court erred in concluding that the Court of Appeals reasonably

applied Strickland’s prejudice prong.                     “We review de novo the

district court’s decision to deny [Scanlon’s] § 2254 petition

based on the record before the [state court], applying the same

standards as did the district court.”                     Golphin v. Branker, 519

F.3d 168, 178 (4th Cir. 2008).                  “Pursuant to the Antiterrorism

and Effective Death Penalty Act of 1996 (‘AEDPA’), the scope of

our review in cases on collateral review from a state court

proceeding     that    adjudicated      a       claim   on      the   merits    is   both

deferential and highly constrained.”                      Id.     That is, under §

2254,    federal      habeas   relief       may     not      be   granted      unless   a

petitioner shows that the earlier state court’s decision “was

                                            9
contrary         to”    clearly       established        federal     law,       §    2254(d)(1);

Williams         v.    Taylor,       529    U.S.    362,      412   (2000) 2;        or   that     it

“involved         an         unreasonable       application          of”        such      law,      §

2254(d)(1);            or     that     it     “was       based      on     an       unreasonable

determination of the facts” in light of the record before the

state court, § 2254(d)(2).

       Recently, the Supreme Court reiterated the scope of federal

habeas review of Strickland claims.                            Harrington, 131 S.Ct. at

786.       The Court began by explaining that a showing of error is

insufficient            under     §    2254,       because       “[f]or     purposes         of    §

2254(d)(1),            ‘an    unreasonable         application       of    federal        law     is

different from an incorrect application of federal law.’”                                         Id.

at 785 (quoting Williams, 529 U.S. at 410).                                “[E]ven a strong

case       for    relief       does    not     mean      the    state      court’s        contrary

conclusion            was    unreasonable.”             Id.    at   786.        As     the   Court




       2
       Scanlon also contends that the Court of Appeals’ decision
is “contrary to” “clearly established federal law” under
2254(d)(1).   That prong of § 2254 applies when the state court
failed to recognize the clearly established federal law or
applied the incorrect clearly established law. See Williams v.
Taylor, 529 U.S. 362, 412-13 (2000) (noting “contrary to” clause
applied “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.”). In
this case, however, the Court of Appeals applied the correct
federal law (Strickland) and the “contrary to” clause is not
implicated.



                                                   10
succinctly stated, “[i]f this standard is difficult to meet,

that is because it was meant to be.”                Id.

       In the Strickland context, a federal habeas court “must

determine what arguments or theories supported or, [if none were

stated], could have supported, the state court’s decision; and

then it must ask whether it is possible fairminded jurists could

disagree that those arguments or theories are inconsistent with

the holding in a prior decision of [the Supreme] Court.”                            Id.

Habeas relief is appropriate only if “there is no possibility

fairminded       jurists    could     disagree       that    the    state       court’s

decision conflicts with [the Supreme] Court’s precedents.”                          Id.

The    Court    reminded    lower    courts   that,       even   without    §    2254’s

deference, the Strickland standard “is a most deferential one.”

Id. at 788.       Moreover, “[w]hen combined with the extra layer of

deference that § 2254 provides, the result is double deference

and    the     question    becomes    whether       ‘there   is    any     reasonable

argument        that   counsel       satisfied       Strickland’s        deferential

standard.’”       Johnson v. Sec’y, DOC, 643 F.3d 907, 910-11 (11th

Cir.    2011)    (quoting   Harrington,       131    S.Ct.    at   788).        “Double

deference is doubly difficult for a petitioner to overcome, and

it will be a rare case in which an ineffective assistance of

counsel claim that was denied on the merits in state court is

found to merit relief in a federal habeas proceeding.”                          Id. at

911.

                                         11
                                               B.

     In this case, the district court properly performed the

role of a federal habeas court.                     It recognized the deferential

Strickland standard and applied that standard correctly and in

“tandem” with § 2254(d) to determine that the Court of Appeals’

application of Strickland was not unreasonable.                         Harrington, 131

S.Ct.    at   788.        In    so    doing,    the       district    court    heeded     the

Harrington Court’s admonition that an “unreasonable application

. . . is different from an incorrect application of federal

law,” id. at 785 (internal quotation marks omitted) (emphasis in

original),     and        “guard[ed]      against          the     danger     of    equating

unreasonableness          under      Strickland          with    unreasonableness       under

§ 2254(d),”     id.       at    788.      Accordingly,            having     reviewed    the

voluminous      record          and     the     parties’           briefs,     we     affirm

substantially        on   the     reasoning         of    the    district    court.       See

Scanlon, 740 F.Supp.2d at 728-30. 3




     3
       Because we affirm the district court’s conclusion that the
Court of Appeals did not unreasonably apply Strickland’s
prejudice prong, we do not address the State’s alternate
argument that the Court of Appeals did not unreasonably apply
the deficient-performance prong.



                                               12
                              III.

     For the foregoing reasons, the district court’s judgment

denying and dismissing Scanlon’s § 2254 petition is

                                                      AFFIRMED.




                               13
