                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 10-6077


LAMONT CLAXTON UNDERWOOD,

                  Petitioner - Appellee,

           v.

SID HARKLEROAD,

                  Respondent - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Graham C. Mullen,
Senior District Judge. (5:04-cv-00193-GCM)


Argued:   September 21, 2010               Decided:   January 12, 2011


Before TRAXLER, Chief Judge, HAMILTON, Senior Circuit Judge, and
Mark S. DAVIS, United States District Judge for the Eastern
District of Virginia, sitting by designation.


Reversed by unpublished per curiam opinion.


ARGUED: Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellant.   Milton Gordon
Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel Hill, North
Carolina, for Appellee. ON BRIEF: Roy Cooper, Attorney General
of the State of North Carolina, Raleigh, North Carolina, for
Appellant.


Unpublished opinions are not binding precedent in this circuit.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

     Following        a     jury      trial,        Lamont        Claxton    Underwood

(Underwood) of Salisbury, North Carolina was convicted in the

Superior     Court,        Watauga     County,        North       Carolina     of     the

first-degree murder and first-degree kidnapping of a man who

dated his former fiancée.             Underwood was sentenced to a term of

life imprisonment on the first-degree murder conviction and a

consecutive    sentence        of     forty        years     on    the   first-degree

kidnapping    conviction.            After    unsuccessfully         challenging     his

convictions on direct appeal and in state habeas proceedings,

Underwood filed an application for a writ of habeas corpus in

the United States District Court for the Western District of

North Carolina, pursuant to 28 U.S.C. § 2254. 1                      On December 23,

2009, the district court granted Underwood a conditional writ of

habeas   corpus,   such       that    if     the    state    court    did    not    grant

Underwood a new trial within 180 days, Underwood had to be set

free.    The State noted a timely appeal and moved for a stay of

the district court’s judgment in its entirety pending resolution

of this appeal.           The district court granted the State’s motion

for a stay.


     1
       Underwood named Sidney Harkleroad, Administrator of the
Marion Correctional Institution in Marion, North Carolina, as
Respondent.   For ease of reference, we refer to Respondent as
“the State” throughout this opinion.



                                        - 2 -
       For reasons that follow, we reverse the judgment of the

district court.



                                              I

       On January 30, 1996, a Watauga County, North Carolina grand

jury       indicted   Underwood       for    the       first-degree    kidnapping        and

first-degree murder of Viktor Gunnarsson.                          Underwood pled not

guilty and proceeded to a jury trial, where he was represented

by attorneys Bruce Kaplan (Defense Counsel Kaplan) and Chester

Whittle, Jr. (Defense Counsel Whittle). 2

       The State’s theory of the case was that Underwood, a former

law enforcement officer, was a jealous, jilted lover, who killed

Gunnarsson      because      he     saw   him     as    a   romantic    rival      for   the

affections      of    Kay    Weden    (Weden),         Underwood’s     former      fiancée.

Underwood, Weden, and Gunnarsson all lived in Salisbury, North

Carolina. 3      The State theorized that Underwood had refused to

accept      Weden’s    decision      to     break      up   with   him;     that    he   had

stalked, spied on, and harassed Weden and her teenage son Jason

Weden; that Gunnarsson had begun to date Weden shortly before

his    murder;       and    that,    upon    learning       that    Weden    was    dating

       2
       At times, for ease of reference, when referring to Defense
Counsel Kaplan and Defense Counsel Whittle collectively, we will
refer to them as “Defense Counsel.”
       3
           Salisbury is in Rowan County.



                                            - 3 -
Gunnarsson, Underwood kidnapped Gunnarsson from his apartment,

took him in the trunk of his 1979 Monte Carlo to a secluded area

approximately 109 miles away along the Blue Ridge Parkway in

Watauga County, where Underwood shot and killed Gunnarsson with

a .22 caliber rifle.     In addition, the State theorized that

approximately three days later, Underwood also shot and killed

Weden’s mother, Catherine Miller (Miller), also of Salisbury,

because Miller had not been supportive of Weden’s relationship

with him.   The indictment, however, only pertained to the first-

degree kidnapping and first-degree murder of Gunnarsson.

     The North Carolina Court of Appeals summarized the evidence

from Underwood’s jury trial as follows:

          The State’s evidence at trial tended to show that
     on 7 January 1994, the body of Viktor Gunnarsson
     (“Gunnarsson”) was found near Deep Gap, North Carolina
     by a North Carolina Department of Transportation
     employee. The body was located about 300 feet from a
     ramp to the Blue Ridge Parkway in Watauga County.
     Gunnarsson had been dead for weeks and the cause of
     death, as determined by the Chief Medical Examiner,
     was a gunshot wound to the head.       Two .22 caliber
     bullets were removed from Gunnarsson’s head and the
     contents of his stomach revealed partially digested
     potatoes, suggesting that he died within [four to
     five] hours of eating.    Gunnarsson had not been seen
     since 3 December 1993, when he had dinner with Kay
     Weden (“Weden”), a former girlfriend of defendant. As
     a part of Gunnarsson’s dinner he had eaten potatoes.

          Weden had ended a relationship with defendant in
     December of 1993.      During her relationship with
     defendant, she received several anonymous threatening
     letters.   One such letter stated that a .22 caliber
     bullet had been fired into her house.       A deputy


                              - 4 -
sheriff later found a .22 caliber bullet lodged in the
exterior of her home near her son’s bedroom.

     Defendant was employed in December of 1993 at
Salisbury High School as a Salisbury police officer.
An examination of the typewriters at the school
revealed that the same typewriter ribbon had been used
to type Weden’s address and a letter that had been
sent to her.

     Defendant possessed a .22 caliber pistol and
rifle, and was issued a Colt .38 revolver while
serving as deputy sheriff in Lincoln County. The
inventory records at the Lincoln Police Department
showed that the gun had been turned in but the actual
weapon was never located. Several witnesses testified
that they had seen defendant in possession of a .38
caliber weapon just prior to the December murders.

     On the night of 3 December 1993, Gunnarsson’s car
was parked at the Weden residence. Defendant drove by
Weden’s house and saw Gunnarsson’s car.        Shirley
Scott, a woman in the car with defendant, testified
that they drove by Weden’s house twice that night.
Jason Weden, Weden’s son, testified that he saw
defendant drive by the house around 11:00 p.m.
Defendant called his friend, Rick Hillard, at 11:30
p.m. and gave him a license plate number and asked him
to perform a check on the license plate number.
Defendant received a call shortly thereafter during
which Scott heard Hillard say, “Viktor Gunnarsson.”
The license plate number was for a vehicle registered
to Gunnarsson.      His address was listed in the
Salisbury phone directory.

      In December 1993 or January 1994, defendant took
his 1979 Monte Carlo to a car wash and had it
thoroughly cleaned, including having the trunk carpet
shampooed. When police searched the car on 1 February
1994,   scratches  were   observed   inside  the  trunk
compartment and a mark that resembled a footprint was
seen on the underside of the trunk lid. The trunk mat
was removed from the car.        Mitochondrial DNA and
microscopic sequences were taken from hairs found on
the trunk mat of defendant’s car.

     On   6  December  1993,  defendant  visited  a
restaurant where he knew that Weden would be dining

                        - 5 -
    with her mother, Catherine Miller (“Miller”), and
    friends.   Defendant stated to Weden that Miller had
    ruined their relationship and that he wished something
    would happen to Miller so Weden would know how he
    felt.

         On 9 December 1993, the body of Miller was found
    in her home. She had been shot twice in the head with
    .38 caliber bullets.    The .38 caliber bullets that
    were taken from Miller’s body were consistent with
    having been fired by a Colt .38 Detective Special.

         Troy Hamlin (“Agent Hamlin”) and Dr. Joseph A.
    DiZinno (“Dr. DiZinno”) were two of the witnesses
    qualified by the court as experts.       Agent Hamlin,
    special agent with the North Carolina State Bureau of
    Investigation, testified as an expert in the field of
    hair examination and comparison.    After conducting a
    microscopic examination and comparison of the known
    hair samples of Gunnarsson and the hairs found on
    defendant’s trunk mat, Agent Hamlin testified that the
    hairs were microscopically consistent and could have
    originated from Gunnarsson.

         Dr. DiZinno, an employee of the Federal Bureau of
    Investigation, was qualified as an expert in the field
    of hair examination and mtDNA analysis.     Dr. DiZinno
    has training in microscopic hair examination and has
    performed mtDNA research and analysis.       He is the
    chief of DNA analysis unit number 2 where mtDNA tests
    are conducted. He performed a DNA sequencing from one
    of the hairs located on defendant’s trunk mat and
    compared it to the mtDNA sequence obtained from a
    known blood sample of Gunnarsson.    Dr. DiZinno opined
    that the DNA sequence from the hair and the DNA
    sequence from the blood sample were identical.       He
    concluded that Gunnarsson could not be excluded as a
    source of the hairs from defendant’s trunk mat.

State v. Underwood, 518 S.E.2d 231, 234-36 (N.C. Ct. App. 1999),

cert.    denied   as   improvidently   granted,   535   S.E.2d   33   (N.C.

2000).




                                  - 6 -
     Of relevance to the issues on appeal, early in his opening

statement     for    the   defense,      Defense    Counsel     Whittle    told   the

jury:

          Now, as has been said to y’all while you were
     getting   picked  as   jurors,  this   is   a  totally
     circumstantial case. There aren’t any eyewitnesses to
     any event. But there is an eyewitness who supposedly
     saw someone after Mr. Gunnarsson’s body was found out
     there in Deep Gap.    Mr. LC Underwood was put in a
     line-up and the individual sat there and looked at him
     with six other guys: No, he isn’t the person I saw.

          We have a confession by someone else who said he
     killed Mr. Underwood [sic].   We have someone who saw
     someone outside of Ms. Miller’s house at the time of
     her murder, the Clerk of Court down there in Rowan
     County, and a composite sketch was made.   It was not
     Mr. Underwood.

(J.A.   563).         Next,     in    thirteen     sentences,    Defense    Counsel

Whittle     briefly    recounted       Underwood’s    law    enforcement    career.

At the conclusion of such recounting, Defense Counsel Whittle

told the jury:        “This is all stuff you’ll hear from the witness

stand.”     (J.A. 564).         The following court day, the State filed

motions in limine seeking (among other things) to bar defense

counsel from eliciting testimony about a purported confession by

a   third    party     (Brandon        Shelton)    through    the   investigating

officers.      The State represented that Shelton “got drunk” and

confessed     to      killing        Gunnarsson,    but     later   recanted      the

confession, and argued that defense counsel could only introduce

evidence      of     the      confession     through      Shelton    during       the




                                         - 7 -
presentation of the defense’s case.                     The trial court granted the

State’s motion.

      The State took approximately three weeks to present its

case.        During    the     State’s     case,        the   defense      drew    out    the

substance of the promised line-up and composite drawing evidence

during cross-examination of various witnesses, but was prevented

by the judge’s order from drawing out any evidence regarding the

alleged third-party confession to Gunnarsson’s murder.                                  After

the   State    rested,       the   defense        rested      without     presenting      any

evidence      which,    under      the    North     Carolina       rules    of     criminal

procedure,      entitled       the    defense       to     make    the    final     closing

argument to the jury.                 The order of closing statements went

defense-State-defense.               During   the        defense’s       initial    closing

statement, no mention was made of:                         (1) the “eyewitness who

supposedly saw someone after Mr. Gunnarsson’s body was found out

there   in    Deep     Gap,”    and      failed    to    pick     Underwood       out    of   a

line-up; (2) the “confession by someone else who said he killed

Mr. [Gunnarsson]”; or (3) the composite sketch of a person who

did not resemble Underwood created from a description by the

Clerk of Court for Rowan County of the person he saw “outside of

Ms. Miller’s house at the time of her murder . . . .”                                   (J.A.

563).




                                           - 8 -
       At the beginning of the State’s closing statement, over

defense counsel’s objection, the State highlighted the defense’s

failure to present any evidence regarding these three matters.

       In closing rebuttal statement, Defense Counsel Kaplan and

Defense Counsel Whittle each specifically addressed the line-up

and composite drawing evidence referred to during the defense’s

opening statement by pointing out to the jury that the defense

had    drawn    out     the   substance   of    such    evidence    during     the

defense’s cross-examination of various State witnesses.                      And,

although       Defense    Counsel    never     specifically      addressed    the

confession       issue    during     closing    rebuttal      statement,     each

reminded the jury during such statement that the defense need

not present any evidence in the case, and Defense Counsel Kaplan

explained that the defense decided not to present any evidence

“because the State has not proven its case beyond a reasonable

doubt.”    (J.A. 2767).

       On July 21, 1997, the jury returned a unanimous verdict of

guilty as to the first-degree kidnapping and the first-degree

murder charges.          Underwood was sentenced to life imprisonment

plus   forty     years.       Underwood   filed     a   direct   appeal     making

numerous claims of reversible error.                In a published opinion,

the North Carolina Court of Appeals rejected all such claims,

holding    that       Underwood    “received    a   fair   trial,    free    from

prejudicial error.”           State v. Underwood, 518 S.E.2d 231, 241

                                      - 9 -
(N.C.     Ct.    App.     1999).           The    North    Carolina        Supreme         Court

ultimately       denied       Underwood’s        request       for   certiorari       review.

State v. Underwood, 535 S.E.2d 33 (N.C. 2000).

     On     October           4,   2001,     Underwood          filed     a     Motion       for

Appropriate          Relief    (MAR)    in   state    court,         pursuant        to    North

Carolina        General       Statute      § 15A-1415,         arguing        that    he    was

subjected       to    ineffective       assistance        of    counsel       by   virtue     of

numerous shortcomings of Defense Counsel, including “fail[ing]

to call key witnesses regarding prior statements they had given

and facts that were known about them that would have aided in

[his] defense.”           (J.A. 255).            Underwood complained in his MAR

that,     “During       opening        arguments,     defense           counsel,      Chester

Whittle told the jury we intended to call a person who was an

eyewitness who had observed a person coming out of the wooded

area at the approximate time the State claimed the victim was

killed.     Unfortunately, this critical witness was not called on

Defendant’s behalf.”               (J.A. 257).            Underwood also complained

that Defense Counsel was ineffective for failing to call various

named witnesses, each of whom, according to Underwood, would

have testified in support of his theory that a man named Brandon

Shelton     had        truthfully       confessed         to     Gunnarsson’s         murder.

Notably, although Underwood alleged the content of the testimony

these potential witnesses might have given at his trial had they

been called by the defense, he failed to submit any evidence

                                           - 10 -
whatsoever to the MAR court in support of this claim as required

by North Carolina law.      See N.C. Gen. Stat. § 15A-1420(b)(1) (“A

motion for appropriate relief made after the entry of judgment

must be supported by affidavit or other documentary evidence if

based upon the existence or occurrence of facts which are not

ascertainable from the records and any transcript of the case or

which are not within the knowledge of the judge who hears the

motion.”).

     To prevail on a claim of ineffective assistance of counsel,

a defendant must show both that “counsel’s representation fell

below an objective standard of reasonableness,” Strickland v.

Washington,   466   U.S.   668,   688   (1984),    and   that   there   is   a

“reasonable probability that, but for counsel’s unprofessional

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

id. at 694.   The MAR court addressed and denied as without merit

all of Underwood’s claims of ineffective assistance of counsel

in summary fashion and without a hearing.            Ultimately, the MAR

court denied Underwood’s MAR in toto, and the North Carolina

Court of Appeals denied Underwood’s petition for certiorari.

     Underwood then filed his application for a writ of habeas

corpus, pursuant to 28 U.S.C. § 2254.             Notably, subsection (d)

of § 2254 provides:

     (d) An application for a writ of habeas corpus on
     behalf of a person in custody pursuant to the judgment
     of a State court shall not be granted with respect to

                                  - 11 -
       any claim that was adjudicated on the merits in State
       court proceedings unless the adjudication of the
       claim--

                (1) resulted in a decision that was contrary to,
                or involved an unreasonable application of,
                clearly established Federal law, as determined by
                the Supreme Court of the United States; or

                (2) resulted in a decision that was based on an
                unreasonable determination of the facts in light
                of the evidence presented in the State court
                proceeding.

28 U.S.C. § 2254(d). 4

       Of relevance to the present appeal, Underwood claimed in

his federal habeas petition that he was subjected to ineffective

assistance        of    counsel   solely     by    virtue    of   Defense       Counsel

Whittle having “promised” the jury in opening statement for the

defense to present, but then Defense Counsel never presenting,

exculpatory       evidence      regarding:        (1)   a   line-up      in   which    an

eyewitness did not identify him as the man she saw coming out of

the wooded area near where Gunnarsson’s body was found; (2) a

composite drawing of a man seen outside Miller’s house at the

time       of   her    murder   whom   did   not    resemble      him;    and    (3)   a

third-party confession to Gunnarsson’s murder. 5                  (J.A. 563).


       4
       Although § 2254 refers to a habeas “application,” we use
the word “petition” interchangeably with the word “application.”
       5
       Underwood attached to his supporting brief in favor of his
federal habeas petition statements taken by law enforcement
officers indicating that a man named Brandon Shelton told his
wife, Heather Shelton, and his friend Robbie Smith that he
killed Gunnarsson, because Gunnarsson had had an affair with his
(Continued)
                                       - 12 -
     The State filed a combined answer and motion for summary

judgment.       Because        the   MAR      court   rejected     Underwood’s

ineffective assistance of counsel claims in summary fashion, the

district court was obliged to conduct an independent examination

of the record, but nonetheless apply § 2254(d)(1)’s deferential

standard of review in deciding whether to grant Underwood a writ

of habeas corpus.       Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir.

2000) (en banc).       The district court acknowledged that Underwood

did not present to the MAR court a sworn statement by Shannon

Tedders,    Robbie    Smith,    Brandon    Shelton,     nor   Heather   Shelton

regarding the substance of any potential testimony they could

have offered.        The district court nonetheless held that it did

not need to consider the content of any statements by these

individuals “in order to determine whether defense counsel were

ineffective    in    failing    to   fulfill    their   promise    to   present

exculpatory evidence.”         (J.A. 3023).

     Ultimately,       the     district    court      granted     Underwood   a

conditional writ of habeas corpus, such that if the State did




wife, that Shannon Tedders could not identify Underwood as the
man she saw leaving the woods near her home on the alleged date
of Gunnarsson’s murder, and that Terry Osborne saw a man near
Catherine Miller’s home on the day she was murdered who was not
Underwood.



                                     - 13 -
not retry Underwood in 180 days, Underwood had to be set free. 6

Although acknowledging that the evidence mentioned in opening

statements       may    not   have     been     actually    exculpatory,     and     that

Underwood had failed to present such evidence to the state MAR

court,    the    district       court    held      that    defense     counsels’     mere

“promise to present” such evidence and then failing to do so

amounted     to        constitutionally            deficient      performance      which

prejudiced the defendant.             J.A. 3023.

     The State thereafter noted this timely appeal.



                                              II

     “A    district         court’s    decision      to   grant    habeas   relief    is

reviewed de novo.”            Frazer v. South Carolina, 430 F.3d 696, 703

(4th Cir. 2005).              Thus, we are, as was the district court,

obliged to conduct an independent examination of the record, but

nonetheless apply § 2254(d)’s deferential standard of review in

deciding whether Underwood is entitled to habeas relief.                           Bell,

236 F.3d at 158.            Underwood’s current ineffective assistance of

counsel    claim       is   based     upon     representations       made   during    the

defense’s opening statement to the jury that the jury would hear

certain allegedly exculpating evidence, but then resting without

calling    any    witnesses      in     such    regard     and   not   addressing    the

     6
         The district court stayed this order pending appeal.



                                         - 14 -
omissions      in    its    initial     closing      statement.             On    appeal,      the

State concedes that Underwood fairly presented the substance of

this    claim       in    his   MAR,    and    thus,        we   are    not       faced      with

considering the merits of a procedural default defense.                                      Thus,

the overarching issue in the present appeal is whether the MAR

court’s denial of Underwood’s current ineffective assistance of

counsel claim constitutes a decision that was contrary to, or

involved an unreasonable application of Strickland, 466 U.S. at

668, 28 U.S.C. § 2254(d)(1), or was “based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding,” 28 U.S.C § 2254(d)(2).                                   See Sharpe

v.   Bell,     593       F.3d   372,    382-84       (4th    Cir.      2010)          (analyzing

ineffective          assistance        of     counsel        claim          under       § 2254’s

deferential standard).

       As previously stated, to prevail on a claim of ineffective

assistance of counsel under Strickland, a defendant must show

both    that       “counsel’s    representation         fell      below          an    objective

standard      of    reasonableness,”          id.,   466     U.S.      at    688,      and    that

there    is    a    “reasonable        probability      that,       but      for       counsel’s

unprofessional errors, the result of the proceeding would have

been different,” id. at 694.                  The first requirement is commonly

known in the relevant jurisprudence as Strickland’s deficient

performance prong, while the second is commonly known in the

relevant jurisprudence as Strickland’s prejudice prong.                                      See,

                                            - 15 -
e.g., Wong v. Belmontes, 130 S. Ct. 383, 384 (2009).                                           Having

independently          examined       the     record,       we        hold    the     MAR     court’s

denial of Underwood’s current ineffective assistance of counsel

claim did not constitute a decision that was contrary to, or

involved     an    unreasonable             application          of    Strickland,          nor     was

“based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,” 28 U.S.C

§ 2254(d)(2).

                                                 A

       With respect to the line-up evidence referred to during the

defense’s         opening        statement,           Underwood              cannot      establish

Strickland’s           deficient        performance             prong.          First,        Defense

Counsel Kaplan elicited the substance of this evidence during

his    cross-examination           of    Watauga       County          Deputy       Sheriff       Paula

Townsend, who was the lead investigator in the Watauga County

case    concerning         the        murder     of        Gunnarsson.               During       such

cross-examination,          Deputy       Sheriff       Townsend          either       admitted      or

directly stated that:                 (1) on or about January 11, 1994, she

interviewed        a    person        who    lived         in    the     vicinity        of       where

Gunnarsson’s body was found; (2) as a result of such interview,

an order was obtained to have Underwood be part of a line-up;

(3)    the   line-up       included         Underwood           and    five    other        men   with

similar      physical      characteristics             to        Underwood       and     who      were

identically       dressed        in     slacks       and    a     military       green        colored

                                             - 16 -
jacket; (4) the men in the line-up were asked to wear a military

green colored jacket, because the line-up witness had told her

and other investigators that “the person she saw had a jacket

that same color” and investigators “had seized jackets that same

color from the defendant’s residence,” (J.A. 1571); (5) she was

present during the line-up; (6) the men in the line-up were

asked to look one way and then the other way for the witness’s

viewing; (7) the witness was given all the time she needed to

look at the men in the line-up; and (8) the witness did not

identify      anyone   in    the   line-up.      The   elicitation       of   this

testimony      on   cross-examination      was   consistent       with    Defense

Counsel Whittle’s reference to the eyewitness near Deep Gap who

failed to identify Underwood and one-hundred percent fulfilled

Defense Counsel Whittle’s promise during opening statement that

the jury would “hear” about “all [this] stuff . . . from the

witness stand.”        (J.A. 564).       Second, during closing rebuttal

statement, Defense Counsel Kaplan and Defense Counsel Whittle

each specifically addressed the line-up evidence by pointing out

to the jury that the defense had drawn out the substance of such

evidence on cross-examination.            Third, Defense Counsel Whittle

and Defense Counsel Kaplan each reminded the jury during such

statement that the defense need not present any evidence in the

case,   and    Defense      Counsel   Kaplan   explained   that    the    defense

decided not to present any evidence “because the State has not

                                      - 17 -
proven its case beyond a reasonable doubt.”                            (J.A. 2767).         In

light of all these circumstances, Defense Counsel’s handling of

the   promised       line-up     evidence       did    not    fall     outside     the    wide

range     of     professionally          competent           assistance,         and     thus,

Strickland’s deficient performance prong is not met.                               466 U.S.

at 690.

                                               B

      With     respect      to   the    composite          drawing    evidence     promised

during     the       defense’s       opening         statement,       Underwood         cannot

establish       Strickland’s        deficient         performance       prong.          First,

Defense Counsel Whittle elicited the substance of such evidence

during his cross-examination of North Carolina State Bureau of

Investigation Special Agent Don Gale and Rowan County Deputy

Sheriff    Terry      Anger.        Special        Agent    Gale     assisted     the    Rowan

County    Sheriff’s         Department        with    its    investigation        into    the

murders    of    Miller      and    Gunnarsson.            During     cross-examination,

Special Agent Gale either admitted or directly stated that:                               (1)

a composite drawing was made in connection with the Miller case;

(2) Terry Osborne provided the information for the composite

drawing;       (3)     at     the      time        Terry     Osborne       provided       such

information, he was a high school teacher; (4) by the time of

Underwood’s      trial,      Terry     Osborne       was    the    Clerk    of    Court    for

Rowan County; (5) the composite drawing was determined by the

investigators to be someone who they “were considering a witness

                                          - 18 -
at that time or a potential witness at that time,”; and (6) to

his knowledge, Terry Osborne never identified Underwood as the

person in the composite drawing.                 (J.A. 2107).        Deputy Sheriff

Anger was the lead investigator for the Rowan County Sheriff’s

Department       concerning     the    murders    of    Miller   and    Gunnarsson.

During cross-examination, Deputy Sheriff Anger either admitted

or   stated      that   a     composite    drawing     was    made    to    locate   a

potential witness in connection with Miller’s murder and the

person in the composite was never identified.                    As was the case

with     the     line-up      evidence,    these       elicitations        on    cross-

examination       one-hundred         percent    fulfilled       Defense        Counsel

Whittle’s promise during opening statement that the jury would

“hear” about “all [this] stuff . . . from the witness stand.”

(J.A. 564).       Second, Defense Counsel Kaplan and Defense Counsel

Whittle    each     specifically        addressed       the   composite         drawing

evidence       during   the    defense’s    closing      rebuttal      statement     by

pointing out to the jury that the defense had drawn out the

substance of such evidence on cross-examination.                     Third, Defense

Counsel Whittle and Defense Counsel Kaplan each reminded the

jury during such statement that the defense need not present any

evidence in the case, and Defense Counsel Kaplan explained that

the defense decided not to present any evidence “because the

State has not proven its case beyond a reasonable doubt.”                        (J.A.

2767).     As was the case with the line-up evidence, in light of

                                        - 19 -
all    these      circumstances,         Defense            Counsel’s     handling       of    the

composite drawing evidence did not fall outside the wide range

of professionally competent assistance, and thus, Strickland’s

deficient performance prong is not met.                         466 U.S. at 690.

                                                  C

        Lastly, we consider Underwood’s ineffective assistance of

counsel      claim      with    respect      to       the    evidence   of    a   third-party

confession.          At the outset, we emphasize this claim’s narrow

scope       on   federal       habeas        review,         given   the     state       of    the

evidentiary record before the MAR court.                          Underwood presented no

evidence to the MAR court regarding a third-party confession,

and,    thus,     we     are    precluded         from       considering      the    potential

evidence that Underwood presented on the subject in support of

his federal habeas petition.                      See Bell, 236 F.3d at 171 n.13

(affidavit        not    presented        to      state       habeas      court     cannot      be

considered on federal habeas review); N.C. Gen. State. § 15A-

1420(b)(1)       (“A     motion    for       appropriate         relief    made     after      the

entry       of   judgment      must     be     supported        by   affidavit       or       other

documentary evidence if based upon the existence or occurrence

of facts which are not ascertainable from the records and any

transcript of the case or which are not within the knowledge of

the    judge     who    hears     the    motion.”).             Accordingly,        on   federal

habeas review, we focus solely upon Defense Counsel Whittle’s

act    of    telling     the    jury     that         someone    else   had    confessed        to

                                             - 20 -
killing      Gunnarsson    (although          he    mistakenly      referred   to    the

victim       as   Underwood)      and     then       resting     the    case   without

presenting any such evidence or mentioning it in their closing

statement.

       For    purposes    of     our    analysis,      we    will    assume,   without

deciding, that deficient performance occurred.                          Rather, after

independently reviewing the record, we hold that Strickland’s

prejudice prong is not satisfied, because there is no reasonable

probability       that,    had    defense          counsel   not     brought   up    the

confession to the jury during opening statements, the outcome of

Underwood’s trial would have been different.                        466 U.S. at 694.

In   other    words,     there    is    not    a    reasonable      probability     that,

absent the assumed unprofessional error, “the [jury] would have

had a reasonable doubt respecting [Underwood’s] guilt.”                           Id. at

695.     A review of how the trial unfolded makes this conclusion

inescapable.

       Over the course of approximately three weeks, the State

methodically built its case against Underwood by placing before

the jury abundant motive and physical evidence supporting its

theory that Underwood murdered both Gunnarson and Miller.                           With

respect to motive, the State presented an abundance of evidence

establishing that Underwood was a man who would not take “no”

for an answer when Weden made crystal clear to him that she no

longer desired to continue their relationship.                         In addition to

                                         - 21 -
evidence     establishing            that     Underwood        sent     Weden     letters

threatening        her      physical        safety     during      their        tumultuous

on-again, off-again relationship, the evidence established that

Underwood        harbored     raging        jealousy    against       anyone     whom     he

believed stood in the way of his ability to have a romantic

relationship        with      Weden,       including        Gunnarsson     and     Weden’s

mother, Catherine Miller.

     For     example,         late    at     night     on    the   same     night       that

Gunnarsson had last been seen alive, Underwood, while on his own

date with a different woman, stalked Weden and Gunnarsson in

order   to   learn       of    Gunnarsson’s       identity.           Underwood     indeed

learned of Gunnarsson’s identity that very night via a license

plate check that he had performed on Gunnarsson’s vehicle by a

law enforcement buddy.                And although Underwood had learned of

Gunnarsson’s       identity      on    the    night    of     December     3,    1993,    he

falsely told Rowan County Deputy Sheriff Terry Anger twelve days

later that he had never heard of Gunnarsson.                       The evidence also

showed that Underwood had ready access to Gunnarsson’s address

in Underwood’s own copy of the Salisbury phonebook.

     For     a     second     example        of   Underwood’s         raging     jealousy,

approximately two weeks prior to Gunnarsson’s murder, Underwood

had confronted Weden and her date for the evening, David Sumner,

at a local restaurant.           Underwood put his hands on the table and

started asking Weden why she had been lying to him.                                 Weden

                                            - 22 -
denied lying about anything and told Underwood that he needed to

leave.      At that point, Underwood threatened to kill David Sumner

if he did not sit still.                 Weden again asked Underwood to leave.

At that point, Underwood picked up a glass of tea off of the

table,   dumped      it     in    Weden’s    lap,    and    walked    outside.          Once

outside, Underwood told the male friend who had accompanied him

to the restaurant that he wanted to wait for Weden and her date

to exit the restaurant so that he could “hurt [the date] some

way or beat him up on the ground or pavement out there.”                            (J.A.

1743).      The manager of the restaurant called the police.                        Once

the police officers arrived, they escorted Weden and her date to

Weden’s car.         Despite knowing that he had caused such a scene

that the police had been called, Underwood (with his friend in

the car) surreptitiously followed Weden and her date back to

Weden’s house.        After parking nearby in view of Weden’s house,

Underwood     remained       very    agitated       and    angry    for   approximately

thirty minutes, after which time, Underwood’s friend who was in

the   car    was     able    to     talk    Underwood       into     driving     back    to

Underwood’s residence.

      For     a    third     example        of   Underwood’s        raging      jealousy,

Underwood     told    his        buddy    Rex    Allen     Keller    on   two    separate

occasions that Weden’s mother was “a bitch,” because she had

interfered with his relationship with Weden to the extent that

Miller “was the reason they couldn’t get along.”                          (J.A. 1862).

                                           - 23 -
During the entire summer of 1993, Underwood also successfully

persuaded       Keller     to     make    between     eight       and    ten     anonymous

threatening telephone calls to Weden falsely telling her that

her son owed him money for drugs, simply for the purpose of

harassing her.

     The        physical        evidence      obtained       by      law       enforcement

overwhelmingly         tied     Underwood     to   Gunnarsson’s          murder.         This

evidence showed that Gunnarsson had been shot twice in the head

with .22 caliber bullets and that Miller had been shot twice in

the head with .38 caliber bullets.                    Underwood possessed a .22

caliber rifle, which a ballistics expert testified could have

fired the bullets recovered from Gunnarsson.                         Moreover, he was

issued    a     .38    caliber     Colt     Detective    Special         while    formerly

serving    as    a     deputy    sheriff     for   Lincoln        County.        While    the

inventory records for the Lincoln County Sheriff’s Office showed

that Underwood had turned in the .38 caliber weapon, the actual

weapon could not be located.                 Also, several witnesses testified

that they had seen Underwood in possession of a .38 caliber

weapon just prior to the December 1993 murders of Gunnarsson and

Miller.       The .38 caliber bullets taken from Miller’s body were

consistent       with     having     been     fired     by    a    .38      caliber      Colt

Detective Special.

     An expert in the field of fiber and textile identification

testified       that    his     comparison    of    electrical       tape      found     near

                                          - 24 -
Gunnarsson’s body with electrical tape removed from a water line

behind Underwood’s washing machine at his home revealed the two

pieces were consistent in width, thickness, surface texture, and

composition of the adhesive.                The expert opined that both pieces

of tape could have originated from the same roll.

       In December 1993 or January 1994, around the same time as

the murders, Underwood took his Monte Carlo to a car wash and

had it thoroughly cleaned, including having the carpet in the

trunk    shampooed.       The        timing      and     extent     of   the    requested

cleaning,    especially       shampooing         the     trunk,     strongly    suggested

that     Underwood      was    attempting           to       eliminate     evidence     of

Gunnarsson’s murder.            Even with such thorough cleaning, when

investigators     searched      the     Monte       Carlo      on   February    1,    1994,

“scratches were observed inside the trunk compartment and a mark

that resembled a footprint was seen on the underside of the

trunk    lid.”       Underwood,       518     S.E.2d      at   235.      This     evidence

strongly suggested that a person had been closed in the trunk

against    his   will.        And,    by    far,    the      most   damaging      evidence

against     Underwood    consisted          of    the     following:        (1)      expert

witness testimony establishing that the hairs found in the trunk

of     Underwood’s     Monte     Carlo        had      the     identical    microscopic

characteristics as a known sample of Gunnarsson’s hair and had

the same mitochondrial DNA sequencing as a known blood sample of

Gunnarsson; and (2) expert witness testimony establishing that

                                           - 25 -
although    it     is    possible          for    two     people        to    “have       the    same

microscopic       characteristics                in     their      hair        and       the     same

mitochondrial DNA sequence,” such combination “would be highly

unlikely,” (J.A. 2540).

      Notwithstanding          this        overwhelming           evidence,        gleaned       from

numerous and varied sources, that Underwood stalked, kidnapped,

and murdered Gunnarsson because he was dating Weden, Underwood

now   asserts      that    defense          counsel’s          single        reference         during

opening     arguments      to     a    confession            by    someone         else    was     so

prejudicial       that    there       is    a     reasonable        probability           that    the

omission    of     the    remark       would          have   resulted         in     a    different

verdict in this case.           We are unpersuaded.

      Because      the     State’s           case        against         Underwood         was     so

overwhelming, Defense Counsel had little choice but to attempt

to chip away at it, which they attempted to do, in particular,

by developing and emphasizing the line-up and composite evidence

through the State’s witnesses.                    The reference to the third-party

confession was made in conjunction with similar references to

the   line-up      and     composite             sketch       evidence         during      opening

statements,       and     it    appears           that       defense         counsel’s         likely

intention    at    the    time        was    to       elicit      from    the      investigating

officers, during cross-examination, the fact that Shelton had

confessed    to    various      family           members     and       friends     that     he    had

killed    Gunnarsson.           Full        realization           of     this      strategy       was

                                            - 26 -
thwarted by the State’s subsequent motion in limine, granted by

the trial judge.            Nevertheless, Underwood cannot overcome the

fact that, when all was said and done, the State’s case against

him was iron-clad and overwhelming, and it is clear to us that

there     is   no    reasonable       probability          that,   but    for     Defense

Counsel’s      assumed           unprofessional       error,       the    outcome         of

Underwood’s trial would have been different.                         Strickland,         466

U.S. at 694.

     Accordingly,           we     hold     the     MAR     court’s      rejection       of

Underwood’s         ineffective-assistance-of-counsel                 claim       as     it

pertained to the unfulfilled promise in opening statement for

the defense of a third-party confession was not contrary to or

an unreasonable application of the law clearly established in

Strickland.         See Smith v. Spisak, 130 S. Ct. 676, 685-86 (2010)

(assuming without deciding that habeas petitioner was correct

that Strickland’s deficient performance prong was satisfied, but

holding    Ohio      Supreme       Court’s    rejection       of   his    ineffective-

assistance-of-counsel              claim     was     not     contrary      to     or      an

unreasonable        application       of    the     law    clearly    established        in

Strickland, because Strickland’s prejudice prong not satisfied).

Nor was it “based on an unreasonable determination of the facts

in   light     of     the    evidence        presented       in    the    State        court

proceeding,” 28 U.S.C § 2254(d)(2).



                                           - 27 -
                                      III

     Because    the   MAR   court’s    denial   of    Underwood’s    current

ineffective    assistance   of   counsel    claim    as   outlined   in   this

opinion survives the deferential review that we owe such denial

under 28 U.S.C. § 2254(d), we reverse the district court’s grant

of habeas relief in this case.

                                                                     REVERSED




                                  - 28 -
