UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DARRYL E. HUNT,
Petitioner-Appellant,

v.

MARTIN J. MCDADE, Correctional
                                                                       No. 98-6808
Administrator, Harnett Correctional
Center; ATTORNEY GENERAL OF
NORTH CAROLINA,
Respondents-Appellees.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Frank W. Bullock, Jr., District Judge.
(CA-96-350-6)

Argued: January 24, 2000

Decided: February 25, 2000

Before WILKINSON, Chief Judge, and LUTTIG and MOTZ,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: S. Mark Rabil, HOUGH & RABIL, Winston-Salem,
North Carolina, for Appellant. Clarence Joe DelForge, III, Assistant
Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellees. ON BRIEF: James E.
Ferguson, II, FERGUSON, STEIN, WALLAS, ADKINS,
GRESHAM & SUMTER, P.A., Charlotte, North Carolina, for Appel-
lant. Michael F. Easley, Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

After a jury convicted Darryl Eugene Hunt of first-degree murder
and a state judge sentenced him to life imprisonment, Hunt filed a
petition for federal habeas corpus relief under 28 U.S.C. § 2254. The
district court dismissed the petition. For the reasons stated below, we
affirm.

I.

The Supreme Court of North Carolina has set forth the facts of this
case in detail. See State v. Hunt, 457 S.E.2d 276, 279-84 (N.C. 1994)
(Hunt II). Accordingly, we only summarize them here.

Deborah Sykes left her home around 5:30 a.m. on the morning of
October 10, 1984. She was found dead in a field near her place of
employment at approximately 1:00 p.m. that same day. The medical
evidence indicated that she had suffered multiple stab wounds and
that she had been sexually assaulted both vaginally and anally.

Two different juries found Hunt guilty of murdering Mrs. Sykes.
Hunt was first tried and convicted in 1984 and sentenced to life
imprisonment. The North Carolina Supreme Court overturned the
conviction on direct appeal, however, finding that the trial court had
erroneously permitted a police officer to testify to the substance of

                    2
prior unsworn statements made by Hunt's girlfriend. See State v.
Hunt, 378 S.E.2d 754, 760 (N.C. 1989) (Hunt I). Hunt was retried in
1990, and was again convicted of felony murder and sentenced to life
imprisonment. This second conviction was upheld on direct appeal.
See Hunt II, 457 S.E.2d at 279 (N.C. 1994). While Hunt's appeal
from the second conviction was pending, he filed two motions for
appropriate relief in state superior court requesting a new trial based
on newly discovered DNA evidence and alleged Brady violations. See
Brady v. Maryland, 373 U.S. 83 (1963). The North Carolina Supreme
Court affirmed the superior court's denial of these motions. See Hunt
II, 457 S.E.2d at 299.

During both of Hunt's trials, the state offered no direct evidence
linking Hunt to the kidnaping, robbery, sexual assault, or murder of
Mrs. Sykes. However, the state did offer substantial eyewitness testi-
mony placing Hunt near the crime scene before, during, and after the
murder.1 Much of this testimony also indicated that Hunt was accom-
panied by Sammy Lee Mitchell, who was also indicted for the murder
in 1990. Hunt's girlfriend, Margaret Marie Crawford, further impli-
cated Hunt in the crimes, and the state also called two inmates who
testified about incriminating statements Hunt made while he was in
prison following his first conviction.

Hunt presented an alibi defense during his first trial. He and Mitch-
ell testified that they had spent the night of August 9, 1984, at a
friend's house and did not leave until after 7:00 a.m. the following
morning. See Hunt I, 378 S.E.2d at 755. Their testimony was corrobo-
rated by three other witnesses. Id. During the second trial, the state's
case-in-chief included the introduction of Hunt's first trial testimony.
Hunt chose not to testify in the second trial, but he did call some of
his own witnesses, including one who testified that he saw two men
with Mrs. Sykes on the morning of the murder, and that Hunt was not
one of them.

After exhausting his state remedies, Hunt filed a federal habeas
petition under 28 U.S.C. § 2254 (1996). The district court adopted the
magistrate judge's recommendations to grant the state's motion for
_________________________________________________________________
1 We discuss the testimony of certain witnesses at greater length in Part
III infra.

                    3
summary judgment and to dismiss Hunt's petition. We granted a cer-
tificate of appealability on two issues. First, Hunt contends that he is
actually innocent of murdering Mrs. Sykes or of committing any of
the underlying offenses of kidnaping, robbery, or sexual assault. He
bases his actual innocence claim on post-conviction DNA testing and
requests a new trial in light of this evidence. Second, Hunt argues that
the state failed to disclose exculpatory and impeachment evidence.

The parties dispute whether the amendments to § 2254, effected by
the Antiterrorism and Effective Death Penalty Act of 1996, apply to
Hunt's petition. Because we find the petition meritless even under the
more lenient, pre-amendment standard of review, we assume without
deciding that the Act does not apply for the purpose of this opinion.
See, e.g., Beaver v. Thompson, 93 F.3d 1186, 1190 (4th Cir.), cert.
denied, 519 U.S. 1021 (1996). We address each argument in turn.

II.

Hunt argues that he is factually innocent of felony murder because
post-trial PCR/DNA testing2 of a fluid sample taken from Mrs. Sykes'
body indicates that he did not contribute the sperm found in the sam-
ple. Hunt asserts his innocence not as a procedural gateway to resur-
rect an otherwise defaulted claim, but rather as a freestanding actual
innocence claim.

The procedural barriers to such a claim are familiar. See, e.g.,
Royal v. Taylor, 188 F.3d 239, 243 (4th Cir.), cert. denied, 120 S. Ct.
465 (1999). "Because federal habeas relief exists to correct constitu-
tional defects, not factual errors, `[c]laims of actual innocence based
on newly discovered evidence have never been held to state a ground
for federal habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding.'" Id. (quoting
Herrera v. Collins, 506 U.S. 390, 400 (1993)). Moreover, Hunt was
not convicted of capital murder; he received a sentence of life impris-
onment rather than the death penalty. The Herrera Court's analytical
assumptions recognizing the possibility of a persuasive freestanding
_________________________________________________________________
2 As explained by the state superior court, "PCR (polymearase chain
reaction) is a technique by which small amounts of DNA are replicated
so DNA testing can be performed."

                    4
claim of actual innocence may be limited to capital cases because
those assumptions were made in the context of evaluating the consti-
tutionality of the petitioner's execution. 506 U.S. at 417; see also id.
at 427 (O'Connor, J., concurring); id. at 429 (White, J., concurring in
the judgment).

Even granting Hunt all necessary analytical assumptions to over-
come the procedural bars imposed by Herrera, his claim that the
PCR/DNA test results exonerate him of the murder of Mrs. Sykes
cannot survive Herrera's stringent evidentiary standard. Herrera
requires "a truly persuasive demonstration of`actual innocence,'" id.
at 417, and states that "the threshold showing for . . . an assumed right
[to assert a freestanding actual innocence claim] would necessarily be
extraordinarily high." Id. "To be entitled to relief, . . . petitioner would
at the very least be required to show that based on proffered newly
discovered evidence and the entire record before the jury that con-
victed him, `no rational trier of fact could[find] proof of guilt beyond
a reasonable doubt.'" Id. at 429. (White, J., concurring) (citing
Jackson v. Virginia, 443 U.S. 307, 324 (1979)).

Hunt has made no such showing. If we evaluate the PCR/DNA test
results along with the entirety of the evidence introduced at both tri-
als, we are unable to conclude that no rational jury would have con-
victed Hunt of the murder. The new evidence is simply not
sufficiently exculpatory to warrant a new trial. Indeed, as the magis-
trate judge explained, the DNA results do nothing to discount a num-
ber of other possible scenarios reasonably implicating Hunt in the
sexual assault: Hunt's sperm might have been present on a different,
untested sample; Hunt raped Mrs. Sykes but did not ejaculate; or Hunt
sodomized Mrs. Sykes. Moreover, the DNA results do not exonerate
Hunt from committing the murder, from committing the other under-
lying crimes of kidnaping or robbery, or from aiding and abetting any
of these crimes, including the sexual assault.

In an attempt to deflect attention from these inevitable conclusions,
however, Hunt belabors the fact that the DNA testing failed to match
any of the state's three primary suspects--himself, Mitchell, and
Johnny Gray--to the sperm found in one of the fluid samples takes
from Mrs. Sykes' body. He argues that the DNA results substantially
weaken the state's entire theory of the case, justifying a new trial, and

                     5
he relies on various cases in which a new trial was granted based on
exculpatory DNA evidence. See, e.g., State v. Hammond, 604 A.2d
793 (Conn. 1992); State v. Hicks, 536 N.W.2d 487 (Wis. Ct. App.
1995), aff'd on other grounds, 549 N.W.2d 435 (Wis. 1996);
Commonwealth v. Reese, 663 A.2d 206 (Pa. Super. Ct. 1995).

This argument fails to recognize that in both of Hunt's trials the
state contended that there were multiple assailants involved in the
crimes committed against Mrs. Sykes based on evidence related to the
number and angle of the stab wounds and eyewitness testimony. Most
of the cases Hunt cites involved victims who could attest that only
one perpetrator committed the sexual assault. Therefore, DNA evi-
dence that the defendant in each of those cases was not the one who
contributed the sperm found in semen samples taken from the victim
or her clothing established the requisite probability that a reasonable
jury would not have returned a guilty verdict. The new evidence on
which Hunt relies, when analyzed as part of the entire evidentiary
record presented at trial, does not warrant a similar conclusion, partic-
ularly because the DNA results do nothing to exonerate Hunt of Mrs.
Sykes' murder or of aiding and abetting the murder.

III.

We next address Hunt's claim that the state failed to disclose cer-
tain favorable evidence in violation of Brady v. Maryland, 373 U.S.
83 (1963). See also United States v. Bagley, 473 U.S. 667, 676 (1985)
(explaining that Brady material includes both exculpatory and
impeachment evidence). Brady holds that the favorable evidence must
be material in order for its nondisclosure to violate due process and
result in actual prejudice. 373 U.S. at 87. "[E]vidence is material only
if there is a reasonable probability that, had the evidence been dis-
closed to the defense, the result of the proceeding would have been
different. A `reasonable probability' is a probability sufficient to
undermine confidence in the outcome." Bagley , 473 U.S. at 682; see
also Kyles v. Whitley, 514 U.S. 419, 434 (1995). Within the material-
ity inquiry, a court should examine the undisclosed evidence item by
item, and also consider the cumulative effect of all the suppressed evi-
dence. See id. at 436-37.

Hunt first complains that the state failed to disclose the availability
of alternative DNA testing methods. The state did disclose its labora-

                     6
tory's determination that the fluid samples taken from Mrs. Sykes'
body were too degraded to be tested, but it did not disclose that the
lab technician suggested calling someone in California to inquire
about other testing possibilities. Hunt contends the failure to disclose
the latter information constitutes a misrepresentation that allowed the
state to frame certain testimony in a false light.

The district court properly concluded that Hunt is not entitled to the
benefit of the Brady doctrine as to this information. Hunt had equal
access to the fluid samples, and thus he was under an independent
duty to pursue testing alternatives. See Barnes v. Thompson, 58 F.3d
971, 975 n.4 (4th Cir.) (noting that "Brady requires that the govern-
ment disclose only evidence that is not available to the defense from
other sources, either directly or through diligent investigation"), cert.
denied, 516 U.S. 972 (1995); United States v. Wilson, 901 F.2d 378,
381 (4th Cir. 1990) (same). Moreover, the undisclosed information is
arguably immaterial because the PCR/DNA testing method was not
widely-accepted in 1990 and lacked validation studies and other doc-
umentary support, casting doubt on the admissibility of the testing
results. See, e.g., Murray v. State, 692 So.2d 157, 160 n.5 (1997) (not-
ing concern regarding the acceptability of PCR/DNA testing in the
forensic setting as of 1992).

Hunt also contends that the state failed to disclose a substantial
number of documents that would have further impeached many of the
state witnesses. The difficulty with this argument is that it is not the
amount of Brady material, but the specific substance of the material,
that determines whether actual prejudice results from nondisclosure.
We agree with the district court that the undisclosed impeachment
evidence was cumulative and immaterial; as to most of the Brady
claims, Hunt had access to equivalent or similar evidence during both
trials for effective impeachment of witnesses on cross-examination.

Both the state superior court and the magistrate judge reviewed
each item of suppressed evidence. In addition, although the Supreme
Court did not issue its decision in Kyles v. Whitley until after the
North Carolina court rendered its decision on Hunt's motions for
appropriate relief, the magistrate judge explicitly applied Kyles'
cumulative impact test in reviewing the Brady claims. We see no need
to reconsider each item of undisclosed evidence here. We will, how-

                     7
ever, evaluate some of the suppressed information as it relates to the
three state witnesses who provided the most compelling testimony
implicating Hunt in the murder.

First, Johnny Gray testified that around 6:00 or 6:30 a.m. on
August 10, 1984, he saw Hunt straddling the victim while hitting her
in the chest and torso. Gray also testified that after he backed away
from the scene, he turned around and saw Hunt tucking his shirt in
his pants as he ran in the opposite direction. However, on August 22,
1984, Gray identified another person as Mrs. Sykes' assailant--an
individual who had been incarcerated on the morning of the murder--
and, when Gray viewed a lineup a few days later, he wrote down both
Hunt's number and another number. Hunt used this evidence to
impeach Gray's testimony at trial.

Hunt now contends that the state's failure to disclose a police
report containing an inconsistent statement by Gray that the assail-
ant's hair was not braided like Hunt's on the day of the murder, and
other documents indicating that Gray had identified a different indi-
vidual as the assailant, constitutes a Brady violation. The district court
correctly determined that this material was cumulative to the
impeachment evidence available to Hunt at trial. Most notably, Hunt
possessed another of Gray's statements in which he expressed some
uncertainty as to whether the assailant was black or white.

Another important state witness was Roger Weaver. Weaver had
been working at the front desk of a hotel near the crime scene on the
morning of the murder. Weaver observed Hunt on two separate occa-
sions that morning. First, when he went to move his car between 4:30
and 5:00 a.m., Weaver saw Hunt and another black man standing on
a corner near the hotel. Weaver recognized Hunt as the same person
who had come into the hotel five or six times during the summer and
asked to use the restroom. Weaver testified that a couple of hours
later, at approximately 6:45 or 7:00 a.m., Hunt came into the hotel
and went immediately to the restroom. Weaver eventually called a
security guard because Hunt did not emerge from the restroom within
a reasonable period of time, and Hunt immediately left when the
guard entered. Weaver testified that he observed pinkish droplets in
one of the sink basins and bloody paper towels in the trash.

                     8
On cross-examination during both trials, defense counsel asked
Weaver a number of questions related to his inability to make a posi-
tive identification of Hunt during a photographic lineup. Weaver's
testimony during the first trial reveals discrepancies in his description
of Hunt's skin tone. During the second trial, Weaver admitted he was
uncertain about the photographic identification. Thus, the state's fail-
ure to disclose a document containing an interview with Weaver in
which he was unable to positively identify Hunt as a suspect from a
photographic line-up in 1984 does not constitute a Brady violation
because that information was cumulative.

The testimony of Marie Crawford, Hunt's girlfriend, further impli-
cated him in the murder. At the time of the murder, Crawford was a
fourteen-year-old prostitute. During Hunt's first trial, she denied hav-
ing any knowledge about the murder of Mrs. Sykes. However, she
had made certain unsworn, but signed, statements to the police
regarding both Hunt and Mitchell's involvement in the underlying
crimes and the murder. A police officer testified as to the substance
of these unsworn statements, which served as the sole ground for the
reversal of Hunt's first conviction. See Hunt I , 378 S.E.2d at 759-60
(finding that the state's use of Crawford's prior inconsistent state-
ments was not for the primary purpose of impeaching her testimony,
but rather to impermissibly corroborate the testimony of the police
officer as to the facts averred by the prior statements, and that the pro-
bative value of the statements was substantially outweighed by the
danger of unfair prejudice).

Crawford's testimony during the second trial, however, was largely
consistent with her previous statements. According to Crawford, she
awoke between 8:00 and 8:30 a.m. on the morning of the murder, and
Hunt came to her motel room shortly thereafter. She testified that he
had dirt and grass stains on the knees of his pants and that he washed
what appeared to be blood from his hands. (Her previous statements
did not mention the blood; this is the only way in which they materi-
ally differed from her testimony.) Hunt also seemed nervous and
wanted to find Mitchell. Crawford then testified that while she and
Hunt were watching a television program about the murder several
days later, Hunt told her that he and Mitchell had tried to rob Mrs.
Sykes, but that Mitchell raped Mrs. Sykes and "[s]he got killed." Dur-
ing her testimony at the second trial, Crawford also explained that she

                     9
did not tell the truth at the first trial because she was afraid that
Mitchell would kill her.

Hunt contends that he could have further impeached Crawford's
testimony if he had known that the police had paid her $10.00 after
she made the unsworn statements incriminating him in the murder.
The district court appropriately reasoned that in light of the other evi-
dence Hunt used to attack Crawford's credibility at trial, the informa-
tion as to the $10.00 payment was not material.

At oral argument before us, Hunt's counsel indicated that one of
his strongest Brady claims related to Kevey Coleman's testimony.
Coleman testified during the second trial that, despite not having his
contacts in at the time, he saw a white female with two black men on
the morning of the murder near the crime scene. Hunt maintains that
the state disclosed only four of thirteen reports pertaining to Coleman.
Hunt contends that Coleman's testimony "evolved" over time and
points to September 1986 interview notes in which Coleman stated he
could not make a positive identification of any kind. Hunt also identi-
fies a suppressed document in which Coleman's girlfriend, Paula
Monroe, stated that the police both threatened Coleman and offered
him a bribe.

As with other witnesses, Hunt had ample impeachment evidence as
to Coleman's testimony, including his inability to make a positive
photo identification of Hunt or Mitchell--indeed, Coleman himself
testified to this fact at trial. Hunt also presented to the jury the testi-
mony of Talmadge Campbell regarding the possibility that Coleman
received a bribe in exchange for his testimony. Thus, the undisclosed
evidence was mostly cumulative and would have had only limited
impeachment value at trial.

In sum, Hunt had a substantial amount of impeachment evidence
available to him during both trials, evidence he used extensively in
cross-examining witnesses. The information the state failed to dis-
close to him was cumulative, immaterial, or both. Thus, Hunt cannot
demonstrate that he suffered actual prejudice from its nondisclosure.

                      10
IV.

For the foregoing reasons, the district court's dismissal of Hunt's
habeas petition is

AFFIRMED.

                     11
