                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-19



JERRY DALE HILL,

                                              Petitioner - Appellant,

           versus


MARVIN L. POLK, Warden,        Central    Prison,
Raleigh, North Carolina,

                                               Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:02-hc-00041-H)


Argued:   March 14, 2007                     Decided:   April 20, 2007


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Teresa Lynn Norris, BLUME, WEYBLE & NORRIS, L.L.C.,
Columbia, South Carolina, for Appellant.      Jill Ledford Cheek,
Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Cynthia
Katkish, Washington, D.C., for Appellant.    Roy Cooper, Attorney
General, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Jerry Dale Hill (“Appellant”) appeals the district court’s

denial of his petition filed under 28 U.S.C. § 2254 for relief from

his conviction in North Carolina state court for first-degree

murder and his resulting sentence of death.       For the reasons that

follow, we affirm.


                                   I.

     In   February   1994,    sixteen-year-old   Angie   Porter   Godwin

(“Godwin”) came to Harnett County, North Carolina to visit her

father.   Appellant was acquainted with Godwin’s brother, who lived

nearby.   On February 18, Appellant approached Godwin in a local

store and asked her for a date.     Godwin rejected his advances and,

in Appellant’s view, insulted him in front of several other people.

     Early the next morning, Appellant entered Godwin’s father’s

house armed with a gun.      As he moved through the house, Appellant

startled Godwin’s dog.       After she tried to quiet her dog, Godwin

stepped from her bedroom into the hallway. Appellant then shot her

twice and dragged her into the woods beside her father’s house.

Appellant raped and sexually assaulted Godwin before shooting her

two more times.   In an attempt to dispose of evidence of his crime,

Appellant poured gasoline over Godwin’s body and throughout her

father’s house, and set both on fire.      He then went home, changed

clothes, and disposed of the gun.



                                    2
      On the afternoon of the same day, Godwin’s brother-in-law

drove past Godwin’s father’s house and saw smoke issuing from the

roof.   He stopped and, after seeing blood on the front steps,

called the fire department and police.                Godwin’s body was found

shortly thereafter in the woods about 200 yards from the house.

She was nude and covered with leaves and pine straw.

      When interviewed by police officers later that day, Appellant

denied any involvement in the crime.               The following day, however,

he   admitted   his   role   in   the       rape    and   murder.     Subsequent

investigation yielded the gun Appellant used, and semen matching

Appellant’s DNA was discovered in Godwin’s vagina and rectum.

      Following a jury trial in state court, Appellant was convicted

of first-degree murder, first-degree rape, second-degree arson,

felonious breaking or entering, and first-degree sexual offense.

The state presented no new evidence during the sentencing phase of

Appellant’s trial.      The defense, on the other hand, presented

extensive   mitigation       evidence        focusing      on   the   difficult

circumstances of Appellant’s upbringing.              Testimony was presented

highlighting the extent to which Appellant had been neglected and

abused by his parents, raised in extreme poverty, often homeless,

and abandoned for long periods of time.               Appellant’s father told

him that his mother was a prostitute to undermine his relationship

with her.   Frequently unbathed and “basically unsocialized,” J.A.

35, Appellant was often tormented by his peers.


                                        3
     The defense also presented evidence from Claudia Coleman,

Ph.D., an expert in clinical and forensic psychology who has

testified in numerous capital trials.                 In preparation for trial,

Dr. Coleman reviewed Appellant’s records, interviewed him, and

administered psychological tests.                   Her testimony at sentencing

focused    on   Appellant’s     troubled       educational      and   psychological

history. Dr. Coleman concluded that Appellant suffered significant

emotional and social alienation, and she testified at length

regarding the origin and implications of these personality traits.

Dr. Coleman, however, was not asked for and did not offer a

specific diagnosis of Appellant’s psychological problems.

     At the close of evidence in the sentencing hearing, the trial

court     submitted    four     aggravating          and    forty-one    mitigating

circumstances to the jury.           The trial court denied Appellant’s

request    to   instruct      the   jury       on    two    additional   mitigating

circumstances: (1) whether Appellant was under the influence of

mental or emotional disturbance at the time of his crimes, N.C.

Gen. Stat. § 15A-2000(f)(2), and (2) whether his capacity to

appreciate the criminality of his actions was impaired at the time

of his crimes.        Id. § 15A-2000(f)(6).                The jury recommended a

sentence of death after finding all four aggravating, but only five

of the forty-one mitigating, circumstances.                      The trial court




                                           4
accepted the recommendation and sentenced Appellant to death for

Godwin’s murder.1

       After exhausting his direct appeals, Appellant filed a motion

for appropriate relief (“MAR”) in Superior Court (“state MAR

court”).      In his MAR, Appellant raised numerous claims, including

several, which are at issue in this appeal, that his counsel at

trial      and   sentencing   (“trial   counsel”)   was    constitutionally

ineffective.       The state MAR court, however, denied relief.          In

ruling on the claims at issue here, the state MAR court found that

each failed on the merits and, alternatively, that all but one was

procedurally defaulted under N.C. Gen. Stat. § 15A-1420(b)(1).2

Appellant petitioned for, but was denied, a writ of certiorari from

the North Carolina Supreme Court for review of the denial of his

MAR.       State v. Hill, 354 N.C. 577 (2001).            Appellant filed a

petition for a writ of habeas corpus in the federal district court

for the Eastern District of North Carolina.           The district court




       1
      The trial court also sentenced Appellant to two consecutive
life sentences on the rape and sexual offense convictions, and
consecutive sentences totaling fifteen years’ imprisonment on the
arson and breaking or entering convictions. Appellant does not
challenge those convictions and sentences on appeal.
       2
      Because the state MAR court adjudicated each of Appellant’s
claims at issue in this appeal on the merits, see 28 U.S.C. §
2254(d) (setting forth adjudication on the merits as a prerequisite
to post-conviction relief for “person in custody pursuant to the
judgment of a State court”), and we address each substantively
herein, we need not reach the question of whether any was
procedurally defaulted.

                                        5
denied the petition and granted summary judgment to the state on

each of Appellant’s claims.        Appellant timely appealed.


                                     II.

     Appellant argues that he is entitled to relief because the

state MAR court both unreasonably applied clearly established

federal law and unreasonably construed the factual record in

rejecting   claims   that   his    trial   counsel   was   constitutionally

ineffective at sentencing.        We review Appellant’s habeas claims de

novo.   Buckner v. Polk, 453 F.3d 195, 198 (4th Cir. 2006).

However, because Appellant is “in custody pursuant to the judgment

of a State court” and the state MAR court adjudicated his claims on

the merits, our review is constrained by § 2254(d).                Under §

2254(d), Appellant is entitled to relief only if the state MAR

court’s adjudication of his claims either:

     (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.

§ 2254(d)(1)-(2).

     Under § 2254(d)(1), a decision

     is “contrary to” clearly established federal law if it
     either applies a legal rule that contradicts prior
     Supreme Court holdings or reaches a conclusion different
     from that of the Supreme Court on a set of materially
     indistinguishable facts. A decision is an “unreasonable
     application” of clearly established federal law if it


                                      6
     “unreasonably applies” a Supreme Court precedent to the
     facts of the petitioner's claim.

Buckner,    453   F.3d     at   198     (internal    citations    and   quotations

omitted).     For purposes of § 2254(d)(2), a state MAR court’s

factual findings are to be presumed correct unless rebutted by

clear and convincing evidence.               Lenz v. Washington, 444 F.3d 295,

300-01 (4th Cir. 2006); see § 2254(e)(1).

     Ultimately, our review must focus, within the constraints of

§ 2254, on whether the state MAR court correctly concluded that

Appellant    failed      to     state    valid    Sixth    Amendment    claims    of

ineffective assistance of counsel.               To substantiate these claims,

Appellant must demonstrate that (1) trial counsel’s performance was

deficient    in   that     it    fell    “below     an    objective    standard   of

reasonableness”       in      light     of   prevailing     professional    norms,

Strickland v. Washington, 466 U.S. 668, 688 (1984); and (2) such

deficiency prejudiced his defense in 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.

“Unless [Appellant] makes both showings, it cannot be said that

[his] . . . death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.” Id. at 687.

In his § 2254 petition, as in his MAR, Appellant contends that

trial counsel was ineffective (A) by failing to investigate and

present mitigation evidence regarding physical and sexual abuse

that he suffered as a child, and (B) by failing adequately to

                                             7
prepare and examine Dr. Coleman on both a diagnosis for Appellant’s

psychological   problems      and   the    two   mitigating   circumstances

rejected by the district court.        We consider each claim in turn.

                                      A.

     Appellant first requests relief on grounds that trial counsel

failed to investigate and present mitigation evidence that he was

physically and sexually abused as a child.          He bases this claim on

affidavits filed with his MAR that allege the occurrence of such

abuse.   The    state   MAR   court   denied     relief   after   finding   no

deficiency in trial counsel’s investigation and presentation of

evidence regarding Appellant’s upbringing, and no prejudice based

on the jury’s assessment of the mitigation evidence presented.              We

likewise deny relief.

     Even if we assume that there was sufficient evidence of the

alleged abuse to warrant an investigation before sentencing,3 we


     3
      We note that Appellant has offered evidence of the alleged
abuse that is largely indirect or speculative.      For example, a
social worker who worked with Appellant when he was a teenager
stated that she “had heard that [Appellant] was sexually abused”
and “[t]he discipline [Appellant] suffered [at his father’s hands]
was more violent than it needed to be.” J.A. 194 (Affidavit of
Sharon Leigh McDonald Bettini). In Dr. Coleman’s affidavit, she
stated that “Post-conviction counsel has informed me that they have
found evidence that [Appellant] was the victim of physical abuse”
and “likely suffered from sexual abuse during his formative years.”
J.A. 201. Further, Jennifer Miller, an investigator assigned by
the state MAR court to assist in the post-conviction proceedings,
stated that she “learned that [Appellant] suffered severe physical
abuse” and “found evidence of [his] being sexually abused.” J.A.
190. However, Appellant did offer an affidavit from his brother,
David Hill, that contained some direct evidence that Appellant was
physically abused by his step-father.

                                      8
cannot conclude that trial counsel violated the Sixth Amendment by

failing to do so.           With respect to the deficiency prong of

Strickland,    trial   counsel’s   investigation     and    presentation    of

Appellant’s mitigation case was objectively reasonable. In capital

cases, “counsel has a duty to make reasonable investigations or to

make a reasonable decision” not to investigate.             Strickland, 466

U.S. at 691.    We “apply[] a heavy measure of deference to counsel’s

judgments,” id., and begin with a presumption that “conduct falls

within the wide range of reasonable professional assistance.”              Id.

at 689; see also Byram v. Ozmint, 339 F.3d 203, 209 (4th Cir.

2003).

      Here,    trial   counsel   conducted    a    thorough   and    detailed

investigation that involved the production of numerous witnesses

and amassed significant evidence regarding Appellant’s upbringing.

At   sentencing,    trial    counsel   presented    the    results   of   this

investigation through extensive testimony recounting the horrific

circumstances of Appellant’s youth.          Indeed, after examining Dr.

Coleman at length about the psychological problems caused by

Appellant’s experiences, trial counsel elicited testimony that his

was one of the worst cases of abuse and neglect that she had seen

in her professional career.        Trial counsel was under no duty to

“uncover every scrap of evidence” from Appellant’s past. Tucker v.

Ozmint, 350 F.3d 433, 442 (4th Cir. 2003) (internal quotations

omitted).     So long as their actions and decisions were reasonable,


                                       9
trial counsel complied with the Sixth Amendment guarantee of

effective counsel.     See Strickland, 466 U.S. at 691.              Given the

overall breadth and detail of trial counsel’s investigation and

presentation of Appellant’s background, we cannot say that their

actions fell “below an objective standard of reasonableness,” 466

U.S. at 688, and, thus, were deficient for purposes of Strickland.

     Nor do we find that Appellant has satisfied the prejudice

prong   of   Strickland.       The   jury’s   assessment      of   Appellant’s

mitigation case militates against the notion that evidence of the

alleged    abuse   would   have   produced    a   different    outcome.     To

recommend a sentence of death in North Carolina, a jury “must

unanimously    find    that     mitigating    factors   do     not    outweigh

aggravating factors.”         Buckner, 453 F.3d at 203.        Therefore, to

establish prejudice under Strickland, Appellant would have to

“demonstrate a reasonable probability that at least one juror would

have found that his new mitigating evidence, combined with the

existing     mitigating       evidence,    outweighed    the       aggravating

circumstances surrounding [Godwin’s] death.”            Id.    The state MAR

court found that Appellant could not meet this burden based on the

jury’s finding that the aggravating circumstances of his crime

outweighed the little value the jury discerned in his mitigation

evidence. In other words, the state MAR court found no probability

that evidence of additional abuse would have swayed the jury’s

recommendation.     We agree.


                                      10
       After hearing extensive testimony about Appellant’s upbringing

from his former stepmother, his brother, a social worker, and Dr.

Coleman, the jury found no value in thirty-six of the forty-one

mitigating circumstances it considered.                  On the other hand, the

jury found value in each of the four aggravating circumstances

presented.         Appellant has offered no argument, case law, or facts

to suggest that evidence of the alleged abuse would have carried

weight sufficient to alter the jury’s balance of these factors.

Therefore, we cannot say that there is any meaningful probability,

much       less   a    reasonable     one,   that   an   investigation      into    and

presentation of evidence of such abuse would have had any impact on

the proceedings below.               Because Appellant can establish no such

probability,           the   state   MAR   court    properly    concluded    that    no

prejudice was present for purposes of Strickland.

       Ultimately, Appellant has not demonstrated that trial counsel

was ineffective in investigating or presenting his mitigation case.

Therefore, we find no basis to conclude that the state MAR court’s

rejection         of   this   claim    was   contrary    to    or   an   unreasonable

application of clearly established federal law and deny relief.4


       4
      We have reviewed and likewise find without merit Appellant’s
claim that trial counsel was ineffective in failing to investigate
and present evidence that he used drugs as an adolescent. Trial
counsel presented such evidence during Dr. Coleman’s testimony, and
the jury rejected its mitigating value. Appellant has failed to
offer any argument or case law to demonstrate that the state MAR
court’s finding of no Sixth Amendment violation in this regard was
contrary to or an unreasonable application of clearly established
federal law.

                                             11
                                             B.

      Appellant next requests relief on grounds that trial counsel

failed to elicit from Dr. Coleman either a diagnosis of his

psychological condition or corresponding testimony supporting the

two   mitigating      circumstances          rejected      by   the    district    court.

Appellant     bases     this     claim    on      Dr.    Coleman’s     post-conviction

affidavit wherein she states that, if she had been asked at

sentencing, she would have testified that Appellant suffered from

a severe personality disorder that supported both of the rejected

mitigating circumstances.

      The state MAR court denied relief on two grounds relevant

here.    First,       it    found     that     Dr.      Coleman’s     affidavit   lacked

credibility because she had ample opportunity at sentencing to

offer   the   testimony         contained      therein,     but     failed   to   do   so.

Second, the state MAR court found that Appellant demonstrated no

deficiency in trial counsel’s examination of Dr. Coleman and could

not show that the testimony in her post-conviction affidavit would

have altered the jury’s recommendation.                     Appellant contends that

these findings constitute an unreasonable determination of fact and

are   contrary     to      or    an    unreasonable        application       of   clearly

established federal law.              We consider each argument in turn.

                                             i.

      Appellant first contends that the state MAR court unreasonably

determined that the assertions in Dr. Coleman’s post-conviction


                                             12
affidavit lacked credibility.          This finding, however, is entirely

consistent with the record and Appellant has not offered clear and

convincing evidence to rebut the statutory presumption of its

correctness, see § 2254(e)(1).

      Dr. Coleman is an experienced professional psychologist who

has appeared as an expert witness in numerous criminal matters.

She     was   retained   in    this    matter   specifically     to    evaluate

Appellant’s psychological health, assess his current mental status,

and identify any psychological problems he might have.                To fulfill

these    duties,   she   conducted     an    extensive   investigation     into

Appellant’s background, administered numerous diagnostic tests, and

interviewed Appellant on four occasions.

      At trial, Dr. Coleman provided extensive testimony about

Appellant’s background, the psychological tests she performed, her

interviews with Appellant, and his psychological problems.                  Her

testimony     unfolded   largely      through   open-ended     questions   that

elicited narrative responses and provided few constraints on her

ability to offer conclusions formed during her investigation.

      Trial    counsel’s      examination    provided    Dr.   Coleman     broad

opportunity to offer the opinions contained in her post-conviction

affidavit.      The fact that she failed to offer such testimony is

inconsistent with her post-conviction assertion that she would have

done so if only asked by trial counsel.            Appellant, on the other

hand, has failed to offer evidence that clearly and convincingly


                                        13
demonstrates that a witness as experienced as Dr. Coleman would

withhold such critical testimony unless specifically and directly

asked by trial counsel. Therefore, we find nothing unreasonable in

the state MAR court’s adverse credibility determination regarding

Dr. Coleman’s post-conviction affidavit.

                                     ii.

     Appellant next contends that the state MAR court’s finding

that trial counsel’s examination of Dr. Coleman did not violate the

Sixth Amendment was contrary to or an unreasonable application of

Strickland.

     With respect to the deficiency prong of Strickland, Appellant

argues that the state MAR court erred by focusing on Dr. Coleman’s

failure to offer testimony, rather than trial counsel’s failure to

elicit it.    We disagree.    Although the state MAR court focused on

Dr. Coleman when assessing the credibility of her post-conviction

affidavit, it analyzed the effectiveness of her examination by

focusing     on   trial   counsel.        Indeed,   the   state   MAR   court

specifically held that Appellant had “failed to show that the

manner by which his trial counsel elicited evidence from [Dr.

Coleman] . . . was deficient or constituted ineffective assistance

of counsel.”      J.A. 283.   This analysis properly focused on trial

counsel, rather than Dr. Coleman.

     Further, the record supports the state MAR court’s conclusion

that trial counsel was not deficient.           Trial counsel conducted a


                                     14
lengthy and searching examination of Dr. Coleman that thoroughly

conveyed     to    the    jury     the   existence,       origins,    and   effects    of

Appellant’s psychological problems. Although her testimony stopped

short   of   offering         a   discrete      diagnosis,    Dr.    Coleman    evinced

sufficient preparation to, and, in fact, did convey the substantive

import and relevance of Appellant’s mental health issues.                             We,

therefore,     find      no   basis      to    conclude    that   the   trial   court’s

determination as to the deficiency prong was an unreasonable

application of Strickland.

     With respect to the prejudice prong, Appellant asserts that

the state MAR court assigned unreasonable value to the jury’s

acceptance of the aggravating circumstances.                      Again, we disagree.

In its order, the state MAR court merely found that, given that the

jury balanced the sentencing factors in significant favor of the

aggravating circumstances, there was no reasonable probability that

additional        testimony       from   Dr.    Coleman    would     have   produced    a

different outcome. This conclusion did not, as Appellant suggests,

assign undue weight to the jury’s acceptance of the aggravating

circumstances.           Indeed, the conclusion is well-supported by the

record given the jury’s near-absolute rejection of Appellant’s

mitigation evidence. Because Appellant cannot demonstrate that the

additional testimony from Dr. Coleman would have altered the jury’s

balance of the sentencing factors, the state MAR court correctly




                                               15
concluded that he could not establish prejudice for purposes of

Strickland.

     Ultimately, Appellant has not demonstrated that the state MAR

court’s rejection of his claim either resulted from an unreasonable

determination    of   facts   or   was    contrary   to   or   involved   an

unreasonable    application   of   clearly    established      federal   law.

Therefore, Appellant is not entitled to relief.


                                   III.

     For the foregoing reasons, we conclude that Appellant’s claims

are without merit and we affirm the opinion of the district court.



                                                                   AFFIRMED




                                    16
