                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-7


JAMES EDWARD THOMAS,

                                             Petitioner - Appellant,

          versus


MARVIN L. 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.   Malcolm J. Howard,
District Judge. (CA-99-503-5-H-HC)


Argued:   March 16, 2006                    Decided:   April 17, 2006


Before WILKINS, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.


Affirmed by unpublished opinion. Chief Judge Wilkins wrote the
opinion, in which Judge Niemeyer and Judge Duncan joined.


ARGUED: Ann Elizabeth Groninger, PATTERSON HARKAVY, L.L.P.,
Raleigh, North Carolina, for Appellant. Jonathan Porter Babb, Sr.,
Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert
E. Zaytoun, ZAYTOUN & MILLER, P.L.L.C., Raleigh, North Carolina,
for Appellant. Roy Cooper, Attorney General of North Carolina,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
WILKINS, Chief Judge:

     James Edward Thomas appeals an order of the district court

denying his petition for habeas corpus relief from his conviction

and death sentence for the murder of Teresa West.1       See 28 U.S.C.A.

§ 2254 (West 1994 & Supp. 2005).         We affirm the denial of relief.



                                    I.

     The facts may be briefly stated.         Thomas moved into the Sir

Walter Tourist Home in Raleigh, North Carolina, in early 1986.

While living there, he befriended Teresa West, the manager of the

home.       In June of that year, Thomas moved to Cary, North Carolina

with his fiancee, Sandy Jordan.      On the evening of June 13, Thomas

borrowed a friend’s car and drove to the tourist home to visit

West, who had told Thomas she had some heroin (Thomas was a heroin

addict). After unsuccessfully seeking to acquire cocaine to inject

along with the heroin, Thomas proceeded to West’s room, where he

injected the heroin.       He also dissolved and injected some pills

West gave him.

     According to Thomas’ trial testimony, West, who was only

partially clothed, confronted him and demanded sex. Thomas refused

on the grounds of fidelity to Jordan and inability due to the

heroin. West attempted to start an argument, at which point Thomas


        1
       Thomas named Marvin Polk, the Warden of Central Prison in
 Raleigh, North Carolina, as Respondent. For ease of reference, we
 refer to Respondent as “the State” throughout this opinion.

                                     2
claims he passed out.    When he awoke, West was dead; Thomas fled

the apartment.     West’s body was found with a telephone receiver

inserted into her vagina.    The forensic expert who performed the

autopsy testified that West was strangled manually and with a pair

of pantyhose and that the insertion of the telephone receiver

probably occurred post-mortem.

     Thomas was charged with, and convicted of, first-degree murder

and first-degree sexual offense. See N.C. Gen. Stat. §§ 14-17, 14-

27.4 (2005).     The murder conviction rested on both premeditation

and the felony murder rule, with the underlying felony being the

first-degree sexual offense.    The jury sentenced Thomas to death.

On direct appeal, the North Carolina Supreme Court affirmed Thomas’

convictions but vacated his sentence and remanded for resentencing

on the basis of McKoy v. North Carolina, 494 U.S. 433, 435 (1990)

(holding that North Carolina jury instructions improperly required

juror unanimity as to mitigating factors).     See State v. Thomas,

407 S.E.2d 141, 146-55 (N.C. 1991).   Thomas was again sentenced to

death, and this sentence was affirmed.     See State v. Thomas, 477

S.E.2d 450 (N.C. 1996), cert. denied, 522 U.S. 824 (1997).

     Two attorneys were subsequently appointed to represent Thomas

on post-conviction review.     On February 4, 1998, these attorneys

filed a two-page motion for appropriate relief (MAR) raising a

claim relating to Thomas’ first sentencing hearing.   The MAR judge

denied the motion on June 9 without requiring a response from the


                                  3
State and later denied a motion to vacate the denial.   Thereafter,

the Office of the Appellate Defender moved to have appointed

counsel replaced on the basis that “they have failed to competently

and conscientiously represent their client.”       J.A. 602.   This

motion was granted, and new counsel were appointed.     New counsel

moved to vacate the order dismissing the MAR and to allow the

filing of a new MAR; this motion was denied.        In August, new

counsel moved to compel discovery pursuant to N.C. Gen. Stat.

§ 15A-1415(f) (2005).2     The court denied the motion on the basis

that Thomas’ MAR had already been denied when discovery under

§ 1415(f) was requested.

     The North Carolina Supreme Court granted certiorari review

“for the limited purpose of remanding ... for reconsideration ...

in light of this Court’s opinion in State v. Bates, 348 N.C. 29,

497 S.E.2d 276 (1998).”      State v. Thomas, 526 S.E.2d 475 (N.C.

1998).    The MAR court reaffirmed its previous order on the basis

that Bates, which involved only the scope of § 1415(f) and the

proper respondent to a discovery motion under the statute, was

inapplicable to the procedural question of whether a request for




      2
       Section 1415(f) provides, in pertinent part, that “[t]he
 State, to the extent allowed by law, shall 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.”

                                  4
discovery could be granted after an MAR had been filed and denied.3

The North Carolina Supreme Court thereafter denied certiorari. See

State v. Thomas, 539 S.E.2d 7 (N.C. 1999).

     Thomas    then    filed    this     federal   habeas   petition.      As    is

relevant here, Thomas claimed that the jury charge with respect to

the felony murder count was unconstitutional and that trial counsel

were constitutionally ineffective.             The district court denied the

former    claim   on   the     merits    and   found   that    the    latter    was

procedurally      defaulted.       The    district     court   then    granted    a

certificate of appealability as to the felony murder claim, and we

expanded the certificate to include the ineffective assistance

claim.



                                         II.

     We first consider Thomas’ challenge to his conviction.                Prior

to trial, Thomas requested an instruction on the felony murder

charge that would have required the jury to find that West was

alive at the time of the sexual offense.                    Thomas argued that

because North Carolina law defined a first-degree sexual offense as

a sexual act committed “against the will of the other person,” N.C.

Gen. Stat. § 14-27.4(a)(2), the offense could only be committed


      3
       Thomas asserts that Bates “held that a defendant who, like
 petitioner, was denied discovery because his MAR was already
 denied when he requested it, was in fact entitled to discovery.”
 Br. of Appellant at 5.    We discern no such holding in Bates,
 however.

                                          5
while the victim was alive and thus had a “will” that could be

overborne.      Otherwise,     Thomas         argued,     the    offense    was   the

misdemeanor act of desecrating a corpse, which could not support a

felony     murder   conviction.         The      trial     court      refused     this

instruction, and instead instructed the jury that “it makes no

difference whether the intent to commit ... a sexual offense was

formulated before the use of force or after it, so long as the

elements of ... sexual offense occur under circumstances and in a

time frame that you find to be a single transaction.”                     J.A. 324.

     On    direct   appeal,    Thomas         argued    that    the   evidence     was

insufficient to support his felony murder conviction because the

evidence established only that the insertion of the telephone

receiver into West’s vagina occurred after her death.                      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, we conclude the

evidence was sufficient to support defendant’s conviction for

first-degree sexual offense.”        Thomas, 407 S.E.2d at 149.

     Before this court, Thomas argues that the instruction given by

the trial court was unconstitutional because it allowed the jury to

convict him even if the sexual offense was a mere afterthought to

the murder, thereby violating the constitutional principle that

“only true involvement in a murder while perpetrating a felony

shall put a defendant in jeopardy of his own life.”                   J.A. 826; see


                                          6
Enmund v. Florida, 458 U.S. 782, 798 (1982) (holding that the

imposition of the death penalty on a felony murder theory violates

the Eighth Amendment when the defendant was a minor participant in

the underlying felony and “did not kill or intend to kill”).4                We

may not grant relief on this claim unless the decision of the North

Carolina Supreme Court affirming Thomas’ felony murder conviction

“was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court.”       28 U.S.C.A. § 2254(d)(1).          A state court decision is

“contrary to” Supreme Court precedent in either of two situations:

(1) when “the state court applies a rule that contradicts the

governing law set forth in [Supreme Court] cases,” or (2) when “the

state       court   confronts   a   set    of   facts   that   are   materially

indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [Supreme Court]

precedent.”         Williams v. Taylor, 529 U.S. 362, 405-06 (2000).         A

state court decision rests on an “unreasonable application” of

clearly established Supreme Court precedent when “the state court

identifies the correct governing legal principle from [the Supreme]

Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.”            Id. at 413.   The Supreme Court has



        4
       It is not clear that Thomas raised this particular claim on
 direct appeal. However, because the State does not assert that
 the claim is defaulted, we will consider it on the merits. See
 Royal v. Taylor, 188 F.3d 239, 247 (4th Cir. 1999).

                                          7
made clear that the phrase “clearly established Federal law”

“refers to the holdings, as opposed to the dicta, of [the Supreme]

Court’s decisions as of the time of the relevant state-court

decision.”   Id. at 412.

     Although Thomas cites numerous decisions of the Supreme Court

concerning the necessary level of culpability for the imposition of

the death penalty, none of these cases held, or even intimated,

that the Constitution prohibits imposition of the death penalty

when, although part of the same transaction, the underlying felony

occurs after the death of the victim.     We therefore affirm the

rejection of this claim by the district court.



                                III.

     We now turn to Thomas’ claim concerning the ineffective

assistance of trial counsel.   In his second MAR, Thomas sought to

raise a claim that trial counsel were constitutionally defective

for failing to present substantial amounts of information about

Thomas’ horrific childhood.    Cf. Wiggins v. Smith, 539 U.S. 510,

524-29, 534-38 (2003) (holding that counsel were constitutionally

deficient, and petitioner was prejudiced, by counsel’s failure to

investigate his background).    The MAR court concluded that this

claim was defaulted because it was not raised in Thomas’ first MAR.

See N.C. Gen. Stat. 15A-1419(a)(1) (2005).




                                 8
     Absent cause and prejudice or a miscarriage of justice, a

federal habeas court may not review constitutional claims when a

state court has declined to consider their merits on the basis of

an adequate and independent state procedural rule.           See Harris v.

Reed, 489 U.S. 255, 262 (1989).           A procedural rule is adequate if

it is regularly or consistently applied by the state court, see

Johnson v. Mississippi, 486 U.S. 578, 587 (1988), to cases that are

procedurally analogous, see McCarver v. Lee, 221 F.3d 583, 589 (4th

Cir. 2000). Adequacy does not require “an undeviating adherence to

[the] rule admitting of no exception” so long as the rule is

consistently applied “in the vast majority of cases.”             Mueller v.

Angelone, 181 F.3d 557, 584 (4th Cir. 1999) (internal quotation

marks omitted).        Furthermore, we necessarily look only to the

period    prior   to   the   time   the    defendant   violated   the   state

procedural rule; decisions applying or declining to apply a state

rule after that time are irrelevant in determining whether the rule

was consistently applied at the critical time.              See Meadows v.

Legursky, 904 F.2d 903, 907 & n.3 (4th Cir. 1990) (en banc).

     Section 1419(a)(1) has repeatedly been held by this court to

be an adequate and independent procedural rule.           See Bacon v. Lee,

225 F.3d 470, 476 (4th Cir. 2000) (citing cases).5          Indeed, we have


      5
       We ultimately concluded in Bacon that there was “some doubt”
 as to whether the North Carolina Supreme Court consistently
 applied § 1419(a)(1) when the MAR court had granted a motion to
 reconsider its denial of a previous MAR. Bacon, 225 F.3d at 477.
 Because Thomas’ MAR was never reopened, Bacon is not controlling.

                                      9
held that § 1419(a)(1) is an adequate state rule in a case

presented in precisely the same procedural posture as Thomas’,

namely, when a claim raised in a second MAR was ruled defaulted on

the basis that it was not raised in a previous MAR even though the

petitioner asserted that the failure to raise the claim earlier

stemmed from counsel’s ineffectiveness.            See Boyd v. French, 147

F.3d 319, 331-32 & n.8 (4th Cir. 1998).

      Thomas acknowledges this, but argues that the North Carolina

courts do not consistently apply § 1419(a)(1) to situations when

counsel is ineffective in a first MAR.                 As support for this

proposition, Thomas cites three cases: State v. Tucker, 545 S.E.2d

742 (N.C. 2000), in which the North Carolina Supreme Court allowed

the   filing   of    a   second    MAR   after   counsel     admitted   that   he

“deliberately sabotaged” his representation of the petitioner;

State v. Pinch, Nos. 80-CRS-16429, 16430, slip op. at 4 (N.C.

Super. Ct. Mar. 30, 2005), in which a second MAR appears to have

been allowed on the basis of decisions of the United States Supreme

Court, see N.C. Gen. Stat. § 15A-1419(c)(2) (2005); and State v.

Walker, Nos. 92-CRS-20762, 70920, slip op. at 4-5 (N.C. Super. Ct.

Nov. 30, 2004), in which the trial court stayed the petitioner’s

execution on the basis that the petitioner had established a

likelihood     of   success   on   certain    claims   and    that   failure   to


 We conclude that the limited remand ordered by the North Carolina
 Supreme Court is not sufficient to bring this case within the
 ambit of Bacon.

                                         10
consider his claims would result in a fundamental miscarriage of

justice, see N.C. Gen. Stat. § 15A-1419(b)(2) (2005).

      Not only were all of these cases decided after Thomas’ second

MAR was defaulted, they also are not procedurally analogous to

Thomas’   situation.          In      Tucker,    counsel     admitted      that     he

deliberately sabotaged his client’s case on post-conviction review.

And, both Pinch and Walker involved claims of a statutory exception

to the general bar of § 1419(a)(1), something that Thomas does not

claim here.     Additionally, Pinch is currently the subject of a

petition for certiorari with the North Carolina Supreme Court.

      Thomas    raises     two     additional     arguments    to    support      his

assertion that his ineffective assistance claim should not be

defaulted under § 1419(a)(1).             Although Thomas failed to raise

these arguments in the district court, we will nevertheless address

them briefly. First, Thomas maintains that a procedural bar should

not be applied when it would be grossly unfair to do so.                          See,

e.g., Lee v. Kemna, 534 U.S. 362, 376, 382-85 (2002) (“There are

...   exceptional     cases      in   which     exorbitant    application      of   a

generally sound rule renders the state ground inadequate to stop

consideration    of    a    federal     question.”).         There    is    nothing

inherently unfair, however, about requiring that all available

grounds for relief be raised in a petitioner’s first MAR.                          See

McCleskey v. Zant, 499 U.S. 467, 493 (1991) (“[T]he doctrines of

procedural default and abuse of the writ are both designed to


                                         11
lessen the injury to a State that results through reexamination of

a state conviction on a ground that the State did not have the

opportunity to address at a prior, appropriate time; and both

doctrines seek to vindicate the State’s interest in the finality of

its criminal judgments.”).

        If there is any unfairness in the application of § 1419(a)(1)

to Thomas’ second MAR, it is that the attorneys who were first

appointed     to   represent    him    on   post-conviction     review    were

deficient.     Thomas raises this as his second contention, claiming

that    the   ineffectiveness   of    his   first   MAR   counsel   should    be

“imputed to the State,” thereby providing cause for the default.

Coleman v. Thompson, 501 U.S. 722, 754 (1991) (internal quotation

marks    omitted).     Attorney      ineffectiveness      constitutes    cause,

however, only when the Sixth Amendment guarantees the right to

counsel, which it does not do in post-conviction proceedings.                See

id. at 752-53; Mackall v. Angelone, 131 F.3d 442, 449 (4th Cir.

1997) (en banc).



                                      IV.

        For the reasons set forth above, we affirm the denial of

habeas relief by the district court.


                                                                     AFFIRMED




                                       12
