*1 defendant, findings, supports á of the record determination inures to the benefit Government, grant time society. nor that the of additional satisfied the the courts assembly- justice. Accordingly, speedy ... denote of the time was word does not ends efficiency in justice, processing properly speedy cal- line but excluded from trial commensurate with due of cases is culation. We therefore affirm.4 process.”). AFFIRMED.
Turning application of 3161(h)(8) case,
§ in this we note that there
is no evidence in the record that the district justice” finding of
court ever made the “ends 3161(h)(8).3 by § This
required fact does dismissal,
necessarily however. See mandate
Keith, Rather, we at 239-40. if we conclude “after careful review
affirm entirety, BOYD, record in its the rea Jr., [that] of the Arthur Martin underlying granting Petitioner-Appellant, the ... of the con sons tinuance, agreed defendant, set basis forth a sufficient factual which would FRENCH, Warden, B. Pris- James Central justice finding support an ends of under Carolina; on, Raleigh, Michael F. North rule Act.” Id. at 240. This strikes a balance Easley, Attorney of General North Car- public “the of the between interests olina, Respondents-Appellees. in a trial” man speedy and “the defendant Congress part of of that courts assume date 97-23. No. responsibility strictly complying Appeals, United States Court Here, Aguirre requested the Act.” Id. addi Fourth Circuit. preparation filing tional time original dead pretrial motions because Argued March filing line for the of such motions arrived 19, 1998. Decided June discovery. Having completion before record, we reviewed entire are satisfied sup factual basis exists to sufficient finding justice were
port a that the ends by granting additional time for the
served filing pretrial motions.
preparation and 3161(h)(8)(B)(iv). § There
See 18 U.S.C.A. excludable,
fore, time this is and Jarrell’s
right speedy to a trial was violated. See
Keith,
III. sum, we that additional time conclude filing pre- preparation for the
allowed speedy motions excluded from the
trial is pursuant granted calculation if
trial 3161(h)(8). And, § although the
U.S.C.A. appropriate court make the
district finding surprising argues the district erred The absence such a 4. Jarrell also court jury concerning refusing to instruct light that the district court found fact meaning of the term "reasonable doubt.” How automatically under time excludable ever, consistently directed district has 3161(h)(1). See, e.g., term. United courts not define that Reives, 1994). Cir. States F.3d
321 *3 Glover, James Richard Glover
ARGUED: Petersen, P.A., Hill, North Chapel Car- & Maher, Rudolph attempted reconcile with olina; persistently Kieran & Thomas July 30, Hill, Carolina, Ultimately, Friday, Maher, P.A., Hartman. Chapel for North murder, McNeill, eight days before the Barry Special Appellant. Steven attempted in the General, to visit Hartman front Attorney North Carolina Deputy residence, but Hart- Justice, yard parents’ of her Raleigh, Car- North Department of father, Phillips, man’s Lawrence instructed olina, Appellees. ON BRIEF: Michael stay get property off “to off of Easley, Attorney [his] F. General of North Car- olina, Justice, of it.” S.J.A. 102. then threatened Department North Carolina Carolina, you saying, “I’ll see like a German Raleigh, Hartman Appellees. North submarine, you expecting it.” when MURNAGHAN, ERVIN, and Before (internal quotation omit- marks S.J.A. *4 WILKINS, Judges. Circuit ted). And, Boyd Phillips, told “I’ll also meet (internal day.” in you heaven or hell one Id. published opinion. Judge by Affirmed omitted). Following quotation marks this Judge opinion, in which WILKINS wrote encounter, Phillips sought a warrant joined. Judge MURNAGHAN ERVIN Boyd’s trespassing, and the war- arrest for concurring opinion. wrote a Boyd Monday, August was on on served rant 2. OPINION morning Saturday, August of On WILKINS, Judge: Circuit use, following night drinking drug of and Boyd called Hartman at and talked 8:00 a.m. Appellant Boyd, Martin filed Arthur Jr. approximately During to her for two hours. petition corpus this relief1 from for habeas conversation, Boyd that Hart- this learned capital his North conviction and Carolina planned go Mayberry man to to the Mall in former death sentence for the murder of his Airy, shop North Carolina to Mount and Phillips girlfriend, 32-year-old Mae Wanda Boyd a church-sponsored attend car wash. (West § Hartman. 28 U.S.C.Ai See began drinking went and then to a bar and 1994).2 peti- denied district n drugs approximately using again. At 12:00 tion, holding inter alia that the state trial noon, when the bartender to declined serve failing court committed harmless error in to alcohol, any Boyd him more hailed a taxi to Boyd present mitigating expert permit him to take the mall. sentencing. Finding no at revers- any argu- error in of numerous ible mall, Upon arriving Boyd at the entered a ments, we affirm. store that knives and the sales- sold asked
man for a
knife.
of
lock-blade
The owner
I.
knife is
“[a]
store testified
lock-blade
opened
knife that
it’s
it
locked
once
Boyd
Hartman in
met
November 1978
open position.
against
It cannot come back
employed by
while the
two were
same
any way.
your
fingers
you
hands
or cut
Boyd
company.
days
Within
moved with
Boyd purchased
It’s locked in.”
S.J.A.
Hartman,
together
the two
and
resided
and
knife
left the store.
approximately
years.
three and one-half
In
mother,
April
Boyd
Hartman decided to move into
then saw
and her
Hartman
them,
daughter.
parents’
approached
her
residence with her
and asked Hartman if she
Boyd
go
Boyd
was
of
him.
Hart-
supportive
this decision and would
outside with
and
French,
(AEDPA)
Penalty
B.
of
James
Warden
Cen-
ism
Effective Death
Act
of
named
Prison,
incarcerated,
104-132,
tral
where
then
Pub.L. No.
110 Stat.
Easley, Attorney
and Michael F.
General of
§
to 28 U.S.C.A.
2254 effected
amendments
Carolina,
Respondents
North
as
in this action.
govern
§ 104 of the AEDPA do not
our resolution
reference,
Respondents
For ease
we refer to
-
appeal.
Murphy,
this
Lindh v.
throughout
opinion.
"the State”
—,
-,
138 L.Ed.2d
The State does not maintain that it
Boyd’s petition
2. Because
for a writ
requirements
opt-in
has satisfied the
corpus
February
.prior
on
filed
provisions
apply.
AEDPA
such
those
April
the Antiterror-
1996 enactment of
right
lung,
mall
tured Hartman’s
three
together on a
outside the
man sat
crab
wash,
ongoing
proximity
pierced
lung,
to the
car
her left
one that entered her
close
again
discussing
possibility
stomach,
apparently
penetrated
and one
her ster-
period
time
After some
Additionally,
reconciliation.
num.
several
defensive
passed,
approximately
p.m?,
2:00
Hart-
had
arm
wounds to Hartman’s hands
left
approached
mother
them
indicated
man’s
present. Loss of blood from these
were
up,
to leave. Hartman stood
that it was time
shock,
hypovolemic
led to
wounds
Boyd attempted
prevent
her from
but
exsanguination
being
Hartman died of
.while
repeatedly
stay
leaving, asking her
with
transported
hospital.
to a
respond-
minutes. Hartman
him a few more
first-degree mur-
charged
she had lived
hell for
ed to
“that
light
of the numerous
der.
witnesses
months,
her
going
if he was
kill
three
murder,
dispute
that he had
just
get
kill
it over
go
her
ahead
However, Boyd
inflicted
fatal wounds.
with.” S.J.A. 36.
presented the
of two friends with
just
the' knife he had
brandished
drinking
morning
he had been
whom
purchased,
offered Hartman assurances
but
murder and of
the bartender who
Despite
her no
these
that he meant
harm.
support
argu-
him
declined
serve
assurances, Boyd began to stab Hartman.
that he was intoxicated at the time of
ment
*5
attacked,
Boyd
Hartman screamed for
As
Boyd
murder.
The
convicted
intervene,
attempted
her
help and
mother
first-degree
in
Gen.
violation N.C.
murder
pull Boyd away from
trying to
.Hartman.
§ 14-17
Stat.
however,
76-year-old
Boyd,
threw the
wom-
onslaught
ground
Boyd'
concerning
and resumed his
sentencing,
an to the
At
testified
Forcing
Hartman,
Hartman to the
on Hartman.
relationship with
their break-
his
holding
ground on
her
her stomach and
attempts
Boyd
at
up, and his
reconciliation.
hair,
repeatedly.
Boyd stabbed her
her
Hartman, saying,
professed his love for
also
attack,
Throughout
numerous witnesses
thing
ever
was
beautiful
that’s
“[It
m]ost
n
it,
powerless
stop
including
looked
thing
It’s the best
that
happened
me.
shrieking eight-year-old daughter.
Hartman’s
her,
happened my
in
I loved
more
ever
life.
times, Boyd
stabbing Hartman 37
After
any-
anybody,
guess,
I
could ever love
than
calmly
away.
apprehended
He was
walked
Boyd
body.” J.A.
related that when
583.
parked
quieldy as he hid
two
vehi-
between
relationship,
began
their
he
Hartman ended
cles;
weapon was recovered from
the murder
he
health
because
seek mental
assistance
nearby
a
had thrown it under
.where
having
killing people,
includ-
thoughts
was
automobile.
himself and Hartman.
recounted
daily attempts
almost
to reunite with
his
Emergency
personnel
medical
were sum-
Further, Boyd explained the diffi-
Hartman.
approxi-
at
and arrived on the scene
moned
experiencing
sleeping and
he was
culties
mately
p.m.
2:20
These technicians charac-
heavy
illegal drugs.
use of alcohol and
requiring
condition as
terized Hartman’s
ex-
support
treatment
and
advanced life
concerning
various
also testified
plained
they
transport
were unable to
experienced
a
he had
emotional losses
they
Hartman until
could control her bleed-
family
Boyd’s
their
father deserted
child.
difficulty
They
ing.
described the extreme
very young,
grandfa-
and
when
having breathing and the se-
Hartman was
close,
ther,
very
died
he was
whom
experiencing, recounting
pain
vere
she was
years
five
old.
moth-
when
her
Hartman moaned and “rak[ed
how
of his father and
corroborated
losses
er
forth in the .dirt” where
hands] back and
grandfather.
examining-
The
lying.
165.
she was
S.J.A.
a
Humphrey,
Dr.
then called
Jack
pathologist
Hart-
later identified wounds to
criminology
University of
at the
throat, chest,
professor
thigh,
left
back.
man’s
objected, and
The
Among
punc-
two
Carolina.3
State
these were
wounds that
North
criminology
sociology
Humphrey
with a concentration
Dr.
earned a Ph.D.
wife,
them,
girl-
very
outside the
someone
close to
Humphrey was examined
Dr.
friend,
jury.
Humphrey
relationship,
testi-
at
of the
some close
presence
study
over
performed
had
a
they
he
with this
point
fied about
are threatened
conjunction
with the
two-year period
they
very common-
depressed,
loss
become
Department of Corrections.
North Carolina
ly
depression
is in a sense
depressed,
First,
re-
study had two elements.
Now,
The
yourself.
anger turned toward
records,
compared
social
prison
searchers
people
toward them-
point
react either
histories,
psychiatric
of North
histories
outwardly
totally
they
react
selves
will
prisoners
of homicide with
Carolina
convicted
inwardly at
time. Those
the same
offenses. He
those convicted
property
something
people
destroy
who
someone
homi-
prisoners
convicted of
concluded
stranger,
point
destroy
will
at that
their
had suffered over the course of
cide
indiscriminately
They
will not
kill.
don’t
nonviolent
lives more stressful events than
They
public.
constitute
threat
study
aspect
offenders.
second
they fear
a threat
that which
constitute
whether there was a difference
dealt with
most,
losing
person
closest
them.
strangers
who had killed
between individuals
person
unfortunately
it is that
that is
And
family mem-
individuals who had killed
way.
having
in harm’s
And
extended that
Humphrey
close
them.
'Dr.
bers or those
they
aggression
people
toward
are in
other
victims
individuals whose
concluded
They
aggressing
fact
toward themselves.
experi-
to them
to have
were close
tended
losing
destroying
fear
that which
than those
enced more loss
their lives
who
the most.
strangers:
killed
dire,
Following
ar-
voir
the State
J.A.
Now,
thing
has
one
here is a loss
been
gued
Humphrey’s
should
precipitate
found to be associated with or
admitted,
study
asserting
not be
that the
and over.
or lead to suicide over and over
not “scientific”
that the
told
*6
life,
in
more
The more loss
the
someone’s
jury “[njothing.”
715. The
the
J.A.
trial
likely they are to become self-destructive.
objection.
The
sen-
court sustained
killing family
it
a
member
And
seems
death,
aggrava-
finding
tenced
to
two
killing
act of self-
a close friend is an
especially
ting factors —that the murder was
all,
are,
killing
They
destruction
after
heinous, atrocious,
or cruel and that
them,
something
very close
part
that is
previously
felony
had been
a
convicted of
them, very
self.
important
to
to their
violence.
in
act
They
destroying
are
them. So
Supreme
The North
af-
Carolina
Court
they
in fact
killing
person
another
sentence,
Boyd’s
firmed
hold-
conviction and
[themselves,
destroying part
commit-
ing
Humphrey’s
Dr.
exclusion of
ting] a
act.
self-destructive
testimony was not error because the testimo-
Dr. Humphrey
J.A. 684-85.
then described
ny
mitigating.
Boyd,
v.
See State
refer-
types
of losses to which he was
(1984).
408,
189,
N.C.
319
311
S.E.2d
ring
example
parent
of a
the loss
—for
Supreme
The
States
denied
United
Court
Further,
sibling.
Humphrey
Dr.
testified
15,
April
certiorari on
1985. See
learned of
that he had interviewed
and
Carolina,
1030,
471
105
North
U.S.
S.Ct.
Hum-
experienced.
the losses
Dr.
2052,
325 (5) right process; due and Supreme subsequently Amendment to Court North Carolina erred concluding denied certiorari. the district court Boyd’s argument relating to use of 1989, Boyd § 2254 February filed a plea his state nolo contendere as a basis for a petition in the district court. This petition prior procedurally conviction was defaulted. abeyance pending by a held in decision arguments these We address in turn. McKoy Supreme v. North Car- Court olina, 1227, 433, 108 (1990), during Boyd’s unsuc- II. attempt postconviction relief cessful obtain Boyd first asserts that state McKoy in state court. In October under deprived rights court him of trial his under magistrate judge a recommended Eighth and Fourteenth Amendments summary granting the State’s motion for witness, permit expert refusing
judgment
to all claims.
district court
as
Humphrey,
present mitigating
judge’s
adopted
magistrate
recommenda-
“
during sentencing.
Eighth
‘[T]he
Boyd’s application
for a cer-
tion
denied
require
Amendments
Fourteenth
appeal.
probable
tificate of
cause
precluded
... not
sentencer
be
consid
court of the
now seeks review this
ering,
factor,
aspect
mitigating
any
a
of a
as
denying
court
of the district
decision
character or
defendant’s
record
any
petition
corpus
relief.4 He raises
offense,
of the
circumstances
(1)
allegations of error:
that the sentenc-
five
proffers
a
defendant
as
basis for
sentence
Eighth
him of his
ing
deprived
Oklahoma,
Eddings
less than death.’”
rights
present
Fourteenth Amendment
104, 110,
869, 71
455 U.S.
by refusing
permit
mitigating evidence
(1982) (second
(quot
in original)
alteration
(2)
testify;
Humphrey to
a reasonable
Ohio,
Lockett
likelihood exists that the instructions
(1978)
(plurality
S.Ct.
Amendment Second, if profile even state-law rules of Dr. mitigating of these individuals. evidence hearsay) it. would exclude (e.g., Humphrey opined evidence that individuals who have 97, Georgia, 442 99 depressed See Green significant suffered losses become (1979) (per 738 cu 60 point they act in a self-destructive to the that riam). Similarly, this court has observed manner, include destruction which very has sen Supreme Court been that “the losing. they that which most fear impediment to consideration any sitive to that a The district concluded mitigating evidence in a death any type portion Humphrey’s testimony was not “subject only of Dr. hearing” and sentencing evidentiary requirement reasoning: mitigating, of rele to the loose vance, right have a capital defendants Humphrey’s opinion testimony Dr. character any choose on offer evidence Boyd, a result of in his Petitioner losses offense.” circumstances record or life, likely man profile fit of a more Garrison, 724 1437 F.2d Hutchins v. kill a stranger kill a than to is friend (4th Cir.1983) (internal quotation marks alone, simply it mitigating. Standing Moore, omitted); F.3d see Howard question danger- is neutral on the future Cir.1997) (en banc) (recognizing ousness, entirely it also is without Eighth requires Amendment implication inference that could affect a proffered mitigating all relevant circum jury forming response a reasoned moral presented to the senteneer stances be to the of whether be question should determining im whether to consideration given penalty. the death sentence), petition pose cert. a death omitted). (internal quotation J.A. marks U.S.L.W.-(U.S. 1998) May filed, 66 portion Humphrey’s From of Dr. testi- this (No. 97-9263); McKoy, also 494 U.S. at see mony, juror Boyd argues, a reasonable could (explaining that “[r]ele- pose conclude that he would not a future mitigating vant which danger because unlike some other first-de- prove or logically disprove some tends murderers, likely gree kill at he was fact or circumstance which factfinder could mitigating random circumstances reasonably deem to value” and those under (internal omitted)). might quotation dangerous unlikely marks he be be would question evidentiary ruling Skipper, of whether prison. reoccur in Cf. testimony prevented excluding (explaining S.Ct. 1669 “evidence considering mitigating mixed evidence is a pose danger if defendant would question (but fact that re incarcerated) of law and this court spared must be considered Howard, views F.3d at de novo. mitigating”). Additionally, potentially he as- portion Humphrey’s serts that testimony provided the basis for a conclusion court, by the As discussed district category fit within offenders proffered testimony Humphrey’s addressed *8 who act in a manner in tak- self-destructive potentially mitigating two factors. distinct ing Al- the life of someone close them. First, that, Humphrey explained based though questions concerning we have serious research, on individuals North Carolina portion Humphrey’s prof- whether of Dr. this who a homicide of someone had committed accurately may subjected fered be character- close had been to more to them mitigating,5 agree in the form and ized as we with the conclu- stressful life events of losses dence, asserts, and, mitigating that this is not 5. The State contends could not the State mitigating aggravating be dangerousness evidence of lack of future contrary, because the is it demon- Humphrey because Dr. never tes- dangerous Boyd precisely the strates that is killer not that tified that was homicidal or he attempted State of those close to him the Rather, again. kill the State main- would not portray him as. portion Humphrey's of Dr. tains that this testi- argument We this because need not address support mony at most could conclusion agree the even if we were to with State that this only dangerous to those who "estab- portion Humphrey’s testimony family-type of Dr. relationship or lished an intimate —that Boyd's personal typifies profile Appellees history loss the Brief of at 24. The evi- with him.”
327
States,
750, 776,
1239,
portion
court that the
328
66 S.Ct.
90
sion of the district
U.S.
(1946)),
testimony concerning the
Humphrey’s
1557
or at a minimum
L.Ed.
enter-
effect,
of those
have
grave
self-destructive motivation
who
that it had such
tains
doubt
an
McAninch,
great
mitigating
432, 437,
suffered
loss
because
v.
513 U.S.
see O’Neal
(1995) (hold-
arguéd
992,
that he
out of
Boyd could have
acted
130
947
115 S.Ct.
L.Ed.2d
impulse rather
the
'a
than
ing
evenly
self-destructive
that when “the
is so
bal-
record
impulse
by the
selfish
advanced
State.
judge
grave
anced that
conscientious
error,”
doubt as
the harmlessness of an
trial
While we conclude
the
judge
resolve that doubt
favor of
must
constitutional error in ex
court committed
petitioner).6
habeas
evidence,
mitigating
cluding relevant
whether
question remains
error was
standard,
applying
a federal
harmless.
It is now well established that not
not
habeas- court does
ask whether the evi
all errors
constitutional dimension warrant
sufficient,
guilt
dence of
whether
court to overturn a state conviction
a federal
jury would
reached the same conclusion
Chapman
California,
v.
or sentence. See
occurred,
if the error had not
or whether the
18, 23-24,
824,
87
17 L.Ed.2d
386 U.S.
S.Ct.
jury reached the correct result
on the
based
Smith,
(1967);
1134,
v.
89 F.3d
705
Sherman
Pruett,
presented.
See Satcher v.
(en
(4th Cir.1996)
banc),
1137
cert. de
(4th
-
Cir.),
561,
126 F.3d
567-68
de
cert.
-,
nied,
765,
117
136
U.S.
S.Ct.
;—
nied,
-,
595,
118 S.Ct.
139
U.S.
Dixon,
(1997);
712
v.
14 F.3d
L.Ed.2d
Smith
(1997). Rather,
the court re
Cir.1994) (en banc).
956,
Al
de
views the record
novo to determine
play
though
impor
federal habeas courts
an
“substantially sway[ed]
or
error
protecting
role in
the constitutional
tant
substantially
response”
influenee[d]
defendants,
rights of
criminal
that role
state
i.e.,
jury
question put
in the
secondary to
and
that of
is circumscribed
it —
context,
guilty
guilt
whether the defendant is
Abrahamson, 507
courts. See Brecht v.
state
context,
penalty
619, 633,
guilty
123
U.S.
the defendant should receive
for whether
principal
353
Once
avenue
Cooper
Taylor,
penalty.
criminal
death
review of
state
conviction
(4th Cir.1996) (en banc),
complet
370
cert. de
review —has been
sentence —direct
—
-,
nied,
ed,
presumption
finality
legality
“‘a
U.S.
O’Neal,
(1997);
at
and sentence.’” L.Ed.2d
see
attaches
the conviction
Estelle,
making
(explaining that in
(quoting
329 penalty prosecutor’s comments were invited appropriateness of the death whether and the reading a North “did more than Boyd, including response to defense and no Supreme suggesting substantially right case the respond Court order to Carolina (internal omitted)). mercy death appropriate quotation was not scale” marks cases, referring later-repudiated to a Additionally, judge trial instructed the state (cid:127) mandatory punishment. system capital jurors the facts the were decide presented. the Ben- on evidence based Cf. closing ar determining In whether a nett, (concluding prosecu- F.3d at 92 1346-47 prosecutor process, gument by a violates due improper argument deny did due tor’s proceed must look “whether the this court process part trial because court instructed fundamentally un issue was at rendered lawyers say the is jury: “What not evidence. by improper argument.” Bennett v. fair the heard the You You evidence. decide what (4th Cir.) (in 1336, Angelone, 92 F.3d 1345 (internal quotation is.” marks the evidence omitted), quotation cert. de ternal marks determine, omitted)). leads us Our review — -, 503, nied, 117 S.Ct. 136 U.S. prosecutor’s closing argument did the (1996). determination re L.Ed.2d 395 This deprive fair trial. of a quires to “the nature of the to look comments, quantum the nature and V. jury, arguments before the counsel, judge’s charge, opposing Boyd further that his asserts or re the errors were isolated whether prosecution’s conviction resulted from (internal peated.” quotation Id. at 1345-46 knowing testimony. A perjured use of con omitted). marks acquired through knowing use of viction prosecution perjured testimony by the vio argu Undoubtedly, all of the- Illinois, process. Napue v. 360 lates due See im Boyd complains were ments of which 1173, 3 1217 79 L.Ed.2d U.S. S.Ct. from prosecutor A should refrain proper. regardless is This true of whether personal during argu stating opinions testimony it prosecution solicited knew the law. misleading ment about such simply false or allowed be 1449, 1459-60 Kemp, v. 762 F.2d See Drake pass Giglio uncorrected. v. United Cir.1985) (en banc). (11th Furthermore, re States, 153, 763, 150, 92 31 405 U.S. S.Ct. “universally ligiously arguments based 269, (1972); Napue, Bennett, 92 F.3d at condemned.” And, or mis 79 false knowingly factors, however, remaining weigh The leading testimony by a law enforcement offi prosecutor’s of a conclusion favor imputed prosecution. to the See We cer fair deprive of a argument (2d Thomas, 713, n. 1 671 F.2d dra The evidence that committed trial. Delaware, Cir.1982); 259 F.2d Curran Further, overwhelming. the offense Kansas, (3d Cir.1958) Pyle (citing 712-13 heinous, unquestionably was atro murder L.Ed. cruel, cious, stip had entered Paderick, (1942)); 541 F.2d Boone v. felony prior he cf. ulation that had committed (4th Cir.1976) (recognizing that with addition, although the im of violence. police is holding exculpatory by intermittently remarks proper occurred prosecution). Koch v. imputed to But see argument, throughout prosecution’s Cir.1990) Puckett, 524, 530-31 invited the biblical references were some of (rejecting claim that sher petitioner’s concerning Boyd’s testimony his salvation investigators falsely at trial testified iff and awaiting trial and experience prison while in petitioner had failed on the basis that having murder as Boyd’s explanation prosecutor knew show being beguiled by Satan. resulted explained: perjurious). As court has Young, 12- States v. United Cf. (ex (1985) part prosecution, police are also they, if taint the trial is ho less determining prose and the plaining that Attorney, were prejudicial than the State’s improper argument rather cutor’s defendant, police If allow guilty of nondisclosure. reviewing court must consider
330 hearing, Boyd’s attorney produce At the MAR Attorney to state
the State’s colloquy with following had the Detective pointing guilt informing without him of Armstrong: possession in their other inference, Q____ day officers are [Tjhinking contradicts this state back on only you Boyd, you opinion, have an practicing deception not on the State’s saw Mr. do yourself, on the limited on that date based Attorney on the court the defen- but you time him as whether had to observe dant. subject impairing not to some he was Warden, Penitentiary, Md. 331 Barbee v. time? substance at that Cir.1964) (footnote (4th 842, F.2d 846 omit time, yes. A.' I at the felt like he was ted). knowing perjured use of testimo Q. you so?] think [made What process ny “ a due when constitutes violation Well, A. him sober. And I I had seen any reasonable that the ‘there is likelihood many had seen him drunk on occasions testimony judg false have could affected years. over jury.’” Kyles Whitley, v. 514 ment of the Q. you about him What observation did 1555, n. 131 S.Ct. you to day make that that caused think he (1995) (quoting United States subject impairing was to some substance? Agurs, just I effected A. felt like he was [sic] (1976)); see United States L.Ed.2d under influ- degree, some that he was Cir.1997), Ellis, 915 n. 5 right good ence. I distance from was — denied, U.S.-, 738, 139 cert. same him. But I’ve been at this distance (1998); 674, 675 United States past from him in the when he drink- was (4th Cir.1994). Kelly, 35 F.3d way ing. just way, the And he called was, trial, my that he During Boyd’s each of name and said what had the State’s for, being we him under the influ- arrested regarding Boyd’s who testified witnesses ence. immediately just either before or condition Q. you To think Boyd
after indicated was not what extent do that he the murder impaired? you was Do have a word example, taxi driver intoxicated. For you can impair- the extent of his describe who the mall drove stated that ment with? appear did The two not be intoxicated. A. It Boyd purchased appreciably. would be
salesmen in the store where immediately the knife before the murder tes- Q. Appreciably you noticeably means to appear tified that did to have been or clearly? drinking anything. or under influence A. To me. It have been noticea- family and a
Hartman’s father
friend both
ble
someone else that didn’t
him.
know
Boyd just
prior
saw
to the
been,
testified that
But to me he had
he was
under
not appear
something.
murder and that he did
to be
influence of
evidence,
Following
intoxicated.
during
J.A. 883-84. When confronted
cross-
presented
State
of officers who
by
examination
the State with
inconsis-
Boyd just after the
Offi-
observed
murder.
tency
testimony,
Armstrong
Detective
gave
opinion
cer
was
Sumner
admitted that he had not remembered his
Agent Perry
the influence.
stated
under
prior testimony.
by
When asked
the State
opinion
to be
appear
truth when he
he told the
testified
intoxicated,
at trial
Armstrong,
was not
drunk or intoxicated. Detective
Detec-
officer,
Armstrong
affirmatively.
tive
answered
investigating
the chief
was asked
And,
Armstrong agreed
Detective
with the
counsel,
upon your
“[Biased
defense
observa-
State that
his trial
closer to
tion
out there
occa-
of the defendant
on the
murder,
a law
and he was
enforcement
described,
you
your
sion
opinion
officer at the time.
he drunk or intoxicated?” J.A. 410. Detec-
tive Armstrong responded,
appear
“He didn’t
proceeding,
At the
MAR
state
Officer Per-
be, no,
ry
asked,
me to
sir.” Id.
“From the
observations
*12
[Boyd]
argument concerning
of his
of
you
of
that after-
review
the use
were able make
he
you
opinion as to whether
plea
prior
noon do
have an
his nolo contendere
establish a
of or intoxicated
under the influence
was
felony
Boyd pro-
violent
was barred because
any
drug
of
or alcohol?” JA.
from
kind
eedurally
claim.
defaulted the
Absent cause
responded:
He
miscarriage
justice,
prejudice or
a
a
of
my
the
opinion
he was not under
habeas
not
consti
federal
court
review
appear
influence. He
either
did
have
tutional claims when a state court has de
drinking maybe have taken some
been
on
of
clined to consider their merits
the basis
glassy-eyed.
He
drugs.
was somewhat
adequate
independent
procedur
an
state
swaying or
walking, he was not
But he was
Reed,
al rule. See Harris v.
489 U.S.
He, my opinion, was not
staggering.
(1989).
109 S.Ct.
reasoned concurring: Boyd acknowledges court state majority I result has concur independent pro an state expressly relied on but, II, respect to Part I find reached ground to consider the cedural to refuse only para- necessary and sufficient the initial claim, argues but that the state merits of this Dr. Hum- graph and the conclusion that procedural “adequate” because it rule is erroneously ex- phrey’s testimony was not consistently applied.8 regularly is mitigating: since it cluded however, held, consistently This has court questions concerning have serious [W]e adequate indepen § 15A-1419 is Humphrey’s portion of Dr. ground foreclosing dent state-law decision proffered testimony accurately may be federal habeas review. See Williams mitigating characterized ... we con- (4th French, Cir.1998); 146 F.3d 208-09 the refusal of the state trial clude Styles, 39 F.3d 87-88 Cir. Ashe permit Boyd present the miti- court 1994) (explaining peti that a federal habeas witness, expert gating testimony of his tion should have been denied on basis of Humphrey, did not have substantial or procedural default because the state court injurious effect on the verdict. 15A-1419(a) pursuant § denied relief adequate independent “an state Humphrey proffered of Dr. decision”); ground law see also O’Dell v. “prisoners was that convicted of homicide (4th Cir.1996) Netherland, 1214, 1241 F.3d course their had suffered over the lives (en banc) (holding unambiguous proce more stressful than offend- events nonviolent dural derived from state statutes or rules ers” and that “individuals whose victims were “firmly necessarily court rules are estab experienced them close to tended (internal omitted)), quotation lished” marks in their than who more loss lives those — -, aff'd, strangers.” proffered if killed Even Smith, (1997); L.Ed.2d 351 at 965- mitigating, it was harmless (concluding 72 & n. 15A-1419 is an to exclude error it. adequate independent ground state-law decision).
VII. sum, conclude that the refusal of the we permit present
state trial expert mitigating testimony wit-
ness, Humphrey, have a substan- injurious
tial or effect on the verdict. Simi- argument Angelone, asserts that exists lacks also “cause” to excuse merit. Mackall (4th Cir.1997) (en banc), represented attorney the default because the who F.3d - denied, -, during constitutionally him first MAR was cert. failing ineffective to raise this issue. This