                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-1



JOHNNY WAYNE HYDE,

                Petitioner - Appellant,

           v.


GERALD J. BRANKER, Warden, Central Prison,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:06-hc-02032-D)


Argued:   May 13, 2008                       Decided:   June 30, 2008


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jonathan Lee Megerian, MEGERIAN & WELLS, Asheboro, North
Carolina, for Appellant.    Edwin William Welch, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON
BRIEF: Paul M. Green, Durham, North Carolina, for Appellant. Roy
Cooper, North Carolina Attorney General, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Johnny Wayne Hyde, sentenced to death for the first-degree

murder of Leslie Egbert Howard, seeks a writ of habeas corpus to

vacate his conviction and death sentence.       The district court

denied habeas relief; we affirm.



                                  I.

     The Supreme Court of North Carolina found the following facts.

See State v. Hyde, 530 S.E.2d 281, 285-87 (N.C. 2000).

     On the evening of August 1, 1996, Hyde, James Blake, and Joel

Coleman were drinking at a shed near Hyde’s house.        Blake and

Coleman decided to break into Leslie Howard’s mobile home to steal

drugs, and Hyde agreed to help.    They gathered assorted tools and

weapons from Hyde’s shed, walked to the mobile home, pried the door

open, and entered.   After walking down a hallway to the bedroom,

they encountered Howard sitting up in bed.   Howard lunged at Hyde,

and Hyde stabbed Howard several times with a knife.   Howard fell to

his knees, either Blake or Coleman hit him with a pipe in the back

of his head, and Hyde stabbed him several times in the back and in

the side with a drill bit.     Hyde then started to cut Howard’s

throat with a hand saw, but became nauseated by the blood and foul

smell.   Coleman took over.

     Believing that a car was approaching, Hyde, Coleman, and Blake

fled the scene. In order to remove blood stains, Blake set the


                                   2
weapons on fire in a barrel and then placed them in the trash to be

picked up the next day.   When Hyde returned to his residence, his

sister asked what had happened and helped him wash the blood from

his clothes.   Howard’s father discovered his son’s body the next

day; the paramedics determined that stab wounds to the chest and

abdomen, blunt trauma to the head, and massive lacerations to the

neck caused Howard’s death.    When the police questioned Hyde, he

initially denied any involvement, but eventually admitted his

participation in the murder.

     After finding Hyde guilty of first-degree murder, first-degree

burglary, and conspiracy to commit first-degree burglary, a North

Carolina jury recommended a death sentence; and the court imposed

this sentence.    On direct appeal, the Supreme Court of North

Carolina affirmed Hyde’s conviction and sentence, see Hyde, 530

S.E.2d 281, and the United States Supreme Court denied Hyde’s

petition for certiorari, Hyde v. North Carolina, 531 U.S. 1114

(2001).

     Hyde filed a post-conviction motion for appropriate relief

(“MAR”) in state court in Onslow County, North Carolina.     After

conducting an evidentiary hearing on Hyde’s claim of ineffective

assistance of counsel, the MAR court entered an order denying the

motion for relief.   Hyde petitioned the Supreme Court of North

Carolina for review, which it denied.     See State v. Hyde, 623

S.E.2d 779 (N.C. 2005).


                                 3
     Hyde then filed the instant petition for writ of habeas

corpus.      The    district   court    denied   Hyde’s   request     for   an

evidentiary    hearing,   granted      the   state’s   motion   for   summary

judgment on all claims, and dismissed Hyde’s petition for habeas

relief.   See Hyde v. Branker, No. 5:06-HC-2032-D (E.D.N.C. Sept.

25, 2007).    The district court later denied Hyde’s motion to alter

or amend the judgment, and denied Hyde’s motion for a certificate

of appealability.      We granted Hyde a certificate of appealability

as to the seven issues discussed below.

     We review de novo the district court’s grant of summary

judgment, applying the same legal standard as the district court.

Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), we may grant habeas relief only if the state court

rejected Hyde’s constitutional claims in a decision that was

contrary to, or involved an unreasonable application of, Supreme

Court precedent, or that was based on an unreasonable determination

of the facts.      28 U.S.C. § 2254(d) (2000).



                                       II.

     Hyde first claims that the state court erred in denying his

motion to suppress a confession that he made to police officers

during a custodial interrogation.

     A confession made during a custodial interrogation must be

suppressed unless police advise the defendant of his rights under


                                        4
Miranda v. Arizona, 384 U.S. 436 (1966), and he knowingly and

intelligently waives those rights. Additionally, to be admissible,

a confession must be voluntary.           Blackburn v. Alabama, 361 U.S.

199, 205 (1960).

     At trial, Hyde moved to suppress his confession, arguing that

it was involuntary and that he did not knowingly and intelligently

waive his Miranda rights; after holding a hearing, the state trial

court denied the motion.       On direct appeal, the Supreme Court of

North   Carolina   affirmed,    finding     that   Hyde’s    confession   was

voluntary and that he knowingly and intelligently waived his

Miranda rights.    Hyde, 530 S.E.2d at 287-88.         The district court

found the state court’s denial of Hyde’s motion was not based on an

unreasonable   determination     of   the    facts    or    an   unreasonable

application of Supreme Court precedent.              Hyde claims that the

record as a whole does not support the state court’s factual

findings and that the state court’s application of Supreme Court

precedent was unreasonable.

     The state court found that police twice advised Hyde of his

Miranda rights and that Hyde waived them orally and in writing.

Hyde, 530 S.E.2d at 287.    The court further found that Hyde waited

in a locked interview room for approximately one hour before being

interrogated; during this time, officers took him to the bathroom

at his request.     Id.    While waiting in the interview room, an

officer told Hyde that “it would be best if [Hyde] told the truth


                                      5
because the truth would come out anyway and it would take a load

off of him.”   Id.    Police then moved Hyde to a conference room and

advised him of his rights for the second time.           Id.   Hyde again

agreed to speak with police and, during the subsequent two-hour

interview, admitted his role in the murder.        Id.

     Hyde notes that at the state court hearing on his motion to

suppress, he testified that he read and signed the rights waiver

form but that it was not read out loud to him; he also testified

that his interrogators told him that if he cooperated with them

they would tell the prosecutors and “they would take it lighter on

[him].”   As   Hyde    acknowledges,   at   the   same   hearing,   a   law

enforcement witness directly contradicted him and testified that

Hyde’s rights were read aloud to him and that no police officer

made a statement that he would tell the prosecutor to go easier on

Hyde if he confessed.      Another law enforcement officer testified

that he might have told Hyde that “it would take a load off of his

shoulders if he would be honest because the truth would come out,”

but he never promised or threatened Hyde in any way.           Given this

contradictory testimony, Hyde cannot show by clear and convincing

evidence that the state court’s factual findings are incorrect, 28

U.S.C. § 2254(e)(1), nor that the state court’s decision was based

on an unreasonable determination of the facts in light of the

evidence presented, id. § 2254(d)(2).




                                   6
       The    state        court     concluded     that       Hyde    knowingly     and

intelligently       waived     his    rights     and   that    his    confession   was

voluntary.     In so holding, the court explicitly rejected Hyde’s

claim that the police officer’s statement that it would be best if

Hyde told the truth constituted an implicit promise that he would

receive some benefit for confessing.                   Hyde, 530 S.E.2d at 288.

This    was   not     an    unreasonable       application       of   Supreme     Court

precedent.



                                         III.

       Hyde next argues that the Supreme Court of North Carolina

erred in finding that the state trial court did not violate his

constitutional rights when it excused several prospective jurors

during consideration of hardship requests.

       A sentence of death cannot stand if the jury that recommended

it was chosen by excluding potential jurors for cause simply

because they voiced general conscientious or religious scruples

against the death penalty.            Witherspoon v. Illinois, 391 U.S. 510,

522 (1968).         Hyde argues that the trial court excused three

potential jurors because, during the court’s consideration of

hardship requests, they expressed general religious scruples about

serving on a jury.             Two of these jurors also gave health or

personal reasons justifying their inability to serve; one gave only

a religious reason, stating that she felt she “ha[d] no right to


                                           7
judge anyone.”       Hyde acknowledges that all three jurors were

excused before any case was called and before the jury pool was

sworn.    He argues, however, that since the court excused them

immediately before jury selection in his case began, both the court

and the prospective jurors realized that the jurors could be

selected to hear a capital case, and therefore in excusing at least

one juror for general religious concerns, the trial court violated

Witherspoon.     The state court rejected this claim on the merits.

See Hyde, 530 S.E.2d at 291-92.*             Hyde contends that this decision

both violated, and constituted an unreasonable application of,

Witherspoon.

      We disagree.      Witherspoon involved a decision to excuse a

juror for cause based on “general objections to the death penalty

or   expressed   conscientious      or    religious      scruples   against   its

infliction.”      391   U.S.   at   522      (emphasis    added).     Here,   the

potential jurors indicated religious scruples about serving on a




      *
      Hyde argues that the state court did not rule on his
Witherspoon claim because it did not specifically cite and discuss
Witherspoon.    According to Hyde, the district court should
therefore have considered his Witherspoon claim de novo, rather
than under AEDPA’s deferential standard of review applicable to
state court decisions on the merits. See 28 U.S.C. § 2254(d)(1).
Although Hyde is correct that the state court did not cite
Witherspoon, it clearly did decide his claim on the merits. See
Hyde, 530 S.E.2d at 291. As the district court held, a state court
need only decide an issue on the merits, it need not cite
specifically to Supreme Court cases for the AEDPA standard to
apply. See Bell v. Jarvis, 236 F.3d 149, 160 (4th Cir. 2000) (en
banc).

                                         8
jury and passing judgment generally; no Supreme Court precedent

directly addresses this broader question.

     Moreover, Witherspoon dealt with a decision to excuse a juror

for cause during voir dire rather than a hardship request prior to

voir dire.       Although the Supreme Court has made clear that voir

dire is a critical stage of a criminal trial during which the

defendant has a constitutional right to be present, see, e.g.,

Gomez v. United States, 490 U.S. 858, 872-73 (1989), the Court has

not extended this holding to the consideration of hardship requests

made prior to voir dire.               It is true, as Hyde notes, that some

precedent from other circuits treats questioning that occurs prior

to voir dire as analogous to voir dire itself, based on the

substance    of       the    questioning.       See,     e.g.,    United    States    v.

Bordallo, 857 F.2d 519, 523 (9th Cir. 1988).                         But the AEDPA

requires    us    to    look    to   “clearly     established      Federal    law,    as

determined       by    the     Supreme    Court    of    the     United    States,”    §

2254(d)(1); no Supreme Court precedent holds that a court commits

constitutional error in this sort of questioning of potential

jurors prior to voir dire.

     Thus,       we    cannot    say     that   the     state    court    violated    or

unreasonably applied Witherspoon in the present case.




                                            9
                                     IV.

     Hyde maintains that the state appellate court also violated or

unreasonably applied Supreme Court precedent in rejecting his claim

that the trial court impermissibly restricted defense questions

during voir dire.

     A capital defendant is constitutionally entitled to voir dire

sufficient to discern whether a juror has predetermined to impose

the death penalty regardless of the facts and circumstances of

conviction.     See Morgan v. Illinois, 504 U.S. 719, 735-36 (1992).

Hyde argues that the trial court unconstitutionally restricted his

questioning of three potential jurors. Hyde exercised a peremptory

challenge to excuse one of these jurors, but allowed the two other

jurors to be impaneled without having exhausted his remaining

peremptory challenges.

     The Supreme Court of North Carolina rejected this claim. That

court   found   that   even   if   the    trial   court   had   impermissibly

restricted Hyde’s questioning of these three jurors, Hyde could not

demonstrate prejudice because he had not exhausted his peremptory

challenges.     See Hyde, 530 S.E.2d at 292.

     Hyde’s challenge to this ruling must fail.           During voir dire,

Hyde questioned all three jurors as to their views on the death

penalty and whether they would automatically impose it in all

circumstances; while the trial court did sustain objections to some

of Hyde’s questions, it allowed others.           Hyde recognizes that the


                                     10
failure to allow a question during voir dire violates due process

only when it would render the trial “fundamentally unfair.”                  See

Mu’Min v. Virginia, 500 U.S. 415, 425-26 (1991).                Given that Hyde

was allowed to question all three jurors as to their views on the

death    penalty,   we    cannot   say    that    the   state   court   decision

constitutes a violation or an unreasonable application of Supreme

Court precedent.

     Moreover, the state court’s holding that Hyde could not show

prejudice because he did not exhaust his peremptory challenges does

not violate, or constitute an unreasonable application of, Supreme

Court precedent.         Citing Gray v. Mississippi, 481 U.S. 648, 665

(1987), Hyde argues that, in order to demonstrate prejudice, he did

not have to exhaust his peremptory challenges or show that a biased

juror had actually been seated, but only had to show that the

alleged error could possibly have affected composition of the jury

panel as a whole.    But Gray addresses the relevance of unexercised

peremptory challenges in the specific context of the erroneous

Witherspoon exclusion of a prospective juror.             Id. at 664-65.     The

following year, in Ross v. Oklahoma, the Supreme Court explicitly

“decline[d] to extend the rule of Gray beyond its context: the

erroneous ‘Witherspoon exclusion’ of a qualified juror in a capital

case.”    487 U.S. 81, 87 (1988).             Because none of the prospective

jurors in this case were excluded in violation of Witherspoon, Gray

does not control.        Hence, this argument also fails.


                                         11
                                          V.

      Hyde      next    argues   that    the   state   court    violated     clearly

established Supreme Court precedent in rejecting his contention

that insufficient evidence supported the jury finding as to one of

the aggravating circumstances -- that the murder was committed for

the purpose of avoiding arrest.

      An aggravating circumstance may not be submitted to the jury

if   the   evidence,      viewed    in   the   light   most     favorable    to   the

prosecution, is insufficient to prove the aggravating circumstance

beyond a reasonable doubt.           Lewis v. Jeffers, 497 U.S. 764, 781-82

(1990).      One aggravating circumstance submitted to the jury in

Hyde’s case was whether at least one of the purposes motivating the

murder was “avoiding or preventing a lawful arrest.”                       N.C. Gen.

Stat. § 15A-2000(e)(4) (1999). Hyde contends that the evidence was

insufficient to submit this aggravating circumstance to the jury,

and he argues that because his death sentence was imposed on the

basis      of    this     assertedly      insufficient         evidence,     it    is

unconstitutionally arbitrary under Woodson v. North Carolina, 428

U.S. 280 (1976), and Furman v. Georgia, 408 U.S. 238 (1972).

      The state court rejected this claim on the merits.                   See Hyde,

530 S.E.2d at 293-94.            It found that two of Hyde’s statements --

one to police officers and another to his girlfriend, Ginger

Guthrie -- tended to show that Hyde killed Howard because he

believed Howard would report him to the authorities. See Hyde, 530


                                          12
S.E.2d at 294.      Hyde argues that the statements show only a post-

hoc awareness that Howard’s death prevented him from reporting the

crime and that this does not suffice to establish the aggravating

circumstance under North Carolina law.

       Hyde is correct that, under North Carolina law, the evidence

of this aggravating circumstance must relate to the defendant’s

state of mind at the time of the offense; evidence of post-hoc

awareness    that   the   victim’s    death    prevented    the    victim   from

reporting a crime does not suffice.           See, e.g., State v. Williams,

284 S.E.2d 437, 456 (N.C. 1981).         However, Hyde errs in contending

that   his   statements    can   only    be   read   to   show    his   post-hoc

awareness. The state court, not unreasonably, determined that both

statements tended to show Hyde’s intent at the time of the murder.

See Hyde, 530 S.E.2d at 294.         Additionally, evidence in the record

indicates that Hyde knew Howard well, which suggests that Howard

would have been able to identify Hyde had his attackers not killed

him.

       The state court’s determination that this evidence sufficed to

submit determination of the aggravating circumstance to the jury

does not violate clearly established Supreme Court precedent.



                                      VI.

       Hyde additionally contends that the trial court erred by

failing to intervene ex mero motu when the prosecutor made an


                                        13
allegedly improper closing argument that asked the jury to consider

an aggravating factor not recognized under North Carolina law.

        Hyde   maintains      that     the        prosecutor’s       closing   argument

essentially asked the jury to consider as an aggravating factor in

support of the death penalty that the victim was killed in his own

home.      Hyde    notes      that    this    is     not   an    aggravating     factor

established by North Carolina law and argues that allowing the jury

to   sentence     him    to    death    on    the     basis     of    an   unauthorized

aggravating factor rendered his trial so unfair as to deny him due

process.

        The Supreme Court of North Carolina found, and Hyde does not

dispute, that Hyde failed to object to the prosecutor’s closing

argument during trial. For this reason, that court found that Hyde

had failed to preserve his claim and therefore reviewed it only for

plain error.       See Hyde, 530 S.E.2d at 294.                  The district court

found     that    Hyde’s      claim    was        procedurally       barred;   in   the

alternative, it found that the claim failed on the merits.

      Federal habeas courts may not review the merits of a claim

found to be procedurally barred by a state court on adequate and

independent state grounds.            See Coleman v. Thompson, 501 U.S. 722,

731-32 (1991).          The district court found that Hyde’s claim was

procedurally barred because the state court did not consider it on

the merits.       Hyde argues that the state court did consider his

claim on the merits because it reviewed for plain error, applying


                                             14
the due process standard from Darden v. Wainwright, 477 U.S. 168,

181 (1986).      But we have explicitly held that the North Carolina

state court’s review for fundamental unfairness under Darden does

not constitute an adjudication on the merits sufficient to preserve

a claim for federal habeas review.            See Daniels v. Lee, 316 F.3d

477, 487-88 (4th Cir. 2003).

     However,      Hyde    alternatively   argues      that     here       the   state

procedural ground cannot be considered independent because the

state court used the due process standard from Darden.                     This is a

much more difficult question.        See Ake v. Oklahoma, 470 U.S. 68, 75

(1985) (“[W]hen resolution of the state procedural law question

depends on a federal constitutional ruling, the state-law prong of

the court’s holding is not independent of federal law, and [federal

habeas] jurisdiction is not precluded.”)             We need not reach this

question in the present case, however, because Hyde’s claim fails

on the merits.

     To    prove    constitutional    error    based      on   the    prosecutor’s

closing argument, Hyde must show that the prosecutor’s comments “so

infected   the     trial   with   unfairness   as    to    make      the   resulting

conviction a denial of due process.”                Darden, 477 U.S. at 181

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).                     In

this case, the prosecutor did repeatedly emphasize that Hyde killed

Howard in his home and did explicitly state that Hyde deserved the

death penalty based on this “factor.”          However, as the state court


                                      15
noted, one of the aggravating factors that was submitted to the

jury was that the murder was committed in the course of a burglary,

and an element of burglary under North Carolina law is that the

dwelling be occupied at the time of the intrusion.                     Hyde, 530

S.E.2d at 294-95.        Therefore, the closing argument did not amount

to submission of an unauthorized aggravating factor to the jury,

and so the state court did not unreasonably apply Darden in finding

that Hyde’s trial was not fundamentally unfair.



                                         VII.

       Hyde next argues that the jury instructions allowed the jury

to accord no weight at all to statutory mitigating circumstances

and    that,   as   a    result,   his      sentence    was   unconstitutionally

arbitrary under Furman v. Georgia, 408 U.S. 238 (1972), and its

progeny.

       In a capital case, a jury or court imposing sentence may “not

be precluded from considering, as a mitigating factor, any aspect

of a defendant’s character or record and any of the circumstances

of the offense that the defendant proffers as a basis for a

sentence less than death.”             Lockett v. Ohio, 438 U.S. 586, 604

(1978) (emphasis in original).           Moreover, the sentencing authority

“may    determine       the   weight   to      be   given   relevant   mitigating

evidence.”     Eddings v. Oklahoma, 455 U.S. 104, 114 (1982).               “But




                                          16
[it] may not give [this evidence] no weight by excluding such

evidence from [its] consideration.”                 Id.

      A North Carolina statute lists a number of mitigating factors

that a jury must consider and give some weight to, if established

by a preponderance of the evidence.                   See State v. Jaynes, 464

S.E.2d 448, 470 (N.C. 1995).              A jury may also consider non-

statutory factors, but may choose to find that non-statutory

factors   have      no   mitigating    value        even   if    established       by   a

preponderance of evidence.             See, e.g., State v. Fullwood, 373

S.E.2d 518, 533 (N.C. 1988), vacated on other grounds, 494 U.S.

1022 (1990).

      Hyde argues that the jury instructions allowed the jury to

find that statutory mitigating factors existed but carried no

mitigating value, in violation of Eddings as well as state law.

The   state   trial      court   did   not     accept      Hyde’s      proposed    jury

instructions,       which    explicitly       instructed         the   jury   on       the

difference     between       statutory        and     non-statutory       mitigating

circumstances and then directed the jury to assign some weight to

any   statutory          mitigating    circumstance             established       by     a

preponderance of the evidence. But the court did instruct the jury

to find every statutory factor established by a preponderance of

evidence,     and   to    find   any   additional,         non-statutory      factors

established by a preponderance of evidence, if the jury found the

facts to possess mitigating value.              The court then instructed the


                                         17
jury to weigh all existing mitigating factors against the existing

aggravating factors in determining the sentence.

       These jury instructions do not constitute an unreasonable

application of Eddings and Lockett. As Hyde acknowledges, the jury

instructions       do    not     preclude   the      jury      from   considering    any

mitigating factors -- indeed, the court explicitly instructed the

jury to consider not only statutory mitigating circumstances but

also    “any     other    circumstance      .    .   .    which   you   deem   to    have

mitigating value.” A challenged instruction will be held erroneous

only if “there is a reasonable likelihood that the jury has applied

the challenged instruction in a way that prevents the consideration

of constitutionally relevant evidence.”                    See Boyde v. California,

494 U.S. 370, 380 (1990).              In view of the instructions in this

case, we do not believe it reasonably likely that the jury thought

it could refuse to consider any mitigating evidence.



                                          VIII.

       Finally,         Hyde     argues     that         his    trial    counsel     was

constitutionally ineffective in failing to present a voluntary

intoxication defense at the guilt phase of the trial and in failing

to     prepare    expert        witnesses    regarding         intoxication    at    the

sentencing phase of the trial.

       To   establish          constitutionally      ineffective        assistance    of

counsel, a petitioner must show that counsel’s representation fell


                                            18
below an objective standard of reasonableness and that there is a

reasonable probability that, but for the ineffective assistance,

the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 694 (1984).                  Hyde first raised his

ineffective assistance claims post-conviction in a motion for

appropriate relief in state court; after holding an evidentiary

hearing, the state post-conviction court denied his claims on the

merits.

       Hyde   does   not    argue   that   the    facts    found   by    the    post-

conviction     court    are   unreasonable       in   light   of   the    evidence.

Rather, Hyde picks and chooses from these facts to support his

ineffective assistance claim.          When we view the facts that Hyde

correctly recites with others that he omits, we cannot conclude

that the state post-conviction court unreasonably applied Supreme

Court precedent in rejecting Hyde’s ineffective assistance motion.

       Hyde acknowledges that the evidence as to his intoxication was

conflicting and he acknowledges that he told his counsel repeatedly

that he had only had two beers on the night in question.                      However,

Hyde    argues   that      testimony   from      three    witnesses      --    Hyde’s

girlfriend, Ginger Guthrie; Hyde’s co-defendant, Coleman; and the

girlfriend of Hyde’s co-perpetrator, Dana Knaul -- indicated that

he had more than that to drink and had also ingested Xanax and/or

marijuana.     Hyde argues that under Rompilla v. Beard, 545 U.S. 374

(2005), his trial counsel could not simply rely on his statements


                                       19
regarding his level of intoxication and were required to make

further inquiries regarding his possible intoxication.

      The facts found by the state court reveal that the same

primary concern underlay counsel’s strategic decisions not to

present a voluntary intoxication defense or advise the expert

witnesses of the circumstances of the crime.           Hyde admitted to his

trial counsel that he, Blake, and Coleman had gone to the victim’s

trailer not once but twice the night of the murder, and that they

made the second trip with the express purpose of killing Howard in

order to prevent him from reporting their attack.                 Trial counsel

believed (apparently correctly) that the prosecution did not know

of   the   second   trip   and   sought   at   all   costs   to    prevent   the

prosecutor from learning this information, because it would only

strengthen the state’s case for the death penalty. Defense counsel

decided not to advise the expert witnesses as to the circumstances

of the crime because counsel knew that on cross-examination, the

experts would have to divulge this information.

      Trial counsel also testified before the state post-conviction

court that they were aware of the statements by Knaul and Coleman

that Hyde had more than just two beers on the night of the murder.

However, Coleman’s statement did not indicate the amount or type of

drugs Hyde consumed, so counsel thought it would not be very

helpful. Knaul’s statement was more specific; however, counsel was

aware that Knaul also knew that Hyde and the others had made the


                                     20
second trip for the purpose of killing the victim, and they wanted

to avoid having her testify at trial because they did not want that

information revealed. Trial counsel tried to contact Guthrie, then

a minor, but her father would not allow her to speak with them

before trial, so they had no idea what she would say if she

testified.

     Trial counsel further testified that they seriously considered

presenting a voluntary intoxication defense, but rejected that

option for several reasons.   In addition to the problems with all

of the potential testimony regarding Hyde’s level of intoxication

discussed above, counsel was aware that Hyde had presented a

detailed statement to officers concerning the events on the night

of the crime, and Hyde’s ability to give such a detailed statement

made it difficult to argue that Hyde had been too intoxicated to

form the requisite intent.      Moreover, both defense attorneys

testified that they had had extensive experience trying capital

cases before Onslow County juries and had found that such juries

generally rejected voluntary intoxication defenses. Hyde’s counsel

essentially made the strategic choice to try to preserve their

credibility with the jury by not asserting a defense they thought

would fail, in the hopes of persuading the jury at sentencing to

spare Hyde’s life.

     Based on the facts found by the MAR court, which Hyde does not

contest, it was not an unreasonable application of Supreme Court


                                21
precedent to find Hyde’s counsel not constitutionally ineffective.

See Florida v. Nixon, 543 U.S. 175 (2004) (finding trial counsel

was not per se ineffective for conceding guilt in capital case, and

approving of strategic decision to maintain credibility with the

jury for sentencing).



                               IX.

     For all of the reasons set forth above, the judgment of the

district court is

                                                         AFFIRMED.




                                22
