Bacon v. Lee

470 Serv., 142 F.3d Postal

v. United States BACON, Jr., Petitioner— Cir.1998). Further, (4th Robert sover- 208, 210 Appellee, only by an waived immunity can be eign Congress. act of express unequivocal and v. Pena, 116 Lane v. Prison, Warden, LEE, Central R.C. (1996). Rule 486 135 L.Ed.2d S.Ct. Carolina, Raleigh, North 41(e) of sover- a waiver not contain does Respondent Appellant. — 41(e). immunity. See Fed.R.Crim.P. eign the Third and agree therefore We Bacon, Jr., Petitioner— Robert jurisdiction lack courts that Fifth Circuits Appellant, 41(e).3 See Rule under damages to award v. Pena, 412-16; F.3d Bein, 214 F.3d at Prison, Warden, Lee, we hold that Accordingly, Central at 986. R.C. Carolina, correctly Raleigh, concluded that district North court un- damages Respondent Appellee. jurisdiction award lacked — 41(e) destroyed for the property Rule der 99-21, 99-23. Nos. by the Government. Appeals, States Court

United Circuit. Fourth III. 3,May 2000. Argued the district the order of We affirm 30, 2000. Aug. Decided for the return motion granting Jones’ currency personal papers and $266 his destroyed denying relief as

property.4

AFFIRMED portion of the order affirm by 4. also that expressed of the concern We mindful are We return government denying Jones' should motion Circuit that the the Ninth $1,180 seized in currency was not jurisdiction unilat able to defeat not be sought prop- property destroying other act to the same offense eral relation 41(e) Mar States v. motion. See United erty. Rule (9th Cir.1987). tinson, F.2d Minor, States v. F.3d In United however, bound, govern to honor the We are case, Cir.2000), day as this argued same immunity damages in sovereign from ment's equitable jurisdiction we we held 41(e) express as to We no view action. a Rule forfeited the return of Minor’s suit for over may legal avenues afford whether alternative eventually suc- currency. claim If Minor's relief. his situation some others in Jones and cessful, money as his relief. will receive Real Good States Jаmes Daniel See United However, holding bar the here does not our Property, 510 Minor, remedy is sought because relief (1993) (noting that the Pro Due L.Ed.2d 490 government obvi- legal: “the fact government generally requires the cess Clause specific Minor the ously cannot restore to be opportunity provide and an notice not transform currency does that was seized depriving an individual of heard before law." into action motion property). Welch, Spe- Edwin William

ARGUED: General, Teresa Attorney Deputy cial Attorney Harris, Deputy Special Lynn General, Department North Carolina Carolina, Ap- for Justice, North Raleigh, Engel, Center Marie Gretchen pellant. Inc., Dur- Penalty Litigation, Death for Carolina, ham, Appellee. for ON North Greenwald, Audrey R. BRIEF: Stephen York, York, College, New New Cohen Appellee. TRAXLER, NIEMEYER, and

Before KING, Judges. Circuit part and reversed part Affirmed in Judge NIEMEYER published opinion. Judge opinion, in which wrote the a wrote joined. Judge KING TRAXLER concurring in separate opinion dissenting part. judgment part OPINION NIEMEYER, Judge. Circuit Robert jury convicted A North Carolina Clark of Glennie Bacon of the murder appeal, death. On sentenced him vacated North Carolina sentence, there was ruling that the death statutory support sufficient evidence trial court that the mitigating circumstance Follow- jury. failed to submit sentencing hearing, second ing a second penalty. the death jury again imposed “ exhausting his appeals After direct by telephone, Bonnie Sue and ‘the worse remedies, post-conviction peti- things got’ husband, between her and her tioned the district court federal writ the closer she drew emotionally and ro- corpus, raising of habeas claims error mantically to Bacon.” Id. justified that he contended issuanсe of the Bonnie Sue confided Bacon about her

writ under 28 U.S.C. The district difficulties with Glennie and “at point some summary judgment entered in favor ... told [Bacon] she wished her hus- on all except State of the claims one. was dead band and did he of anyone know respect With to the one claim—that Bacon I, who would kill him.” Bacon was denied effective assistance of counsel at 330. Bacon “finally agreed to kill [Glen- by the attorneys failure at the resen- nie],” and Bonnie Sue and Bacon planned tencing hearing to introduce evidence that 31, the January murder for 1987. Id. Bon- apprehension he aided in the of his accom- nie Sue was the beneficiary of Glennie’s plice district court ordered an eviden- —the life policies $130,000, insurance totaling tiary hearing. conducting After this hear- and Bacon reportedly told acquaintances ing, the court determined Bacon had expected he large to receive a inheri- counsel, received ineffective assistance of Bacon, tance. State 66, 337 N.C. rendering the result of 542, (1994) (hereinafter 446 S.E.2d unfair, hearing “fundamentally or at the II”). “Bacon least, very Accordingly, unreliable.” granted the writ on this claim. plan, Under the Bonnie Sue was to ac- company theater, Glennie to movie North Carolina filed appeal to chal- him, where Bacon kill but Bacon lenge the district granting court’s order “ ‘chickened out’ when it came time to writ, and Bacon cross-appeal filed a execute the plan.” Id. The following night, challenging the rulings rejecting court’s six 1, 1987, February again pursuant plan, of his other claims for relief. For the Clark, 58, see 377 S.E.2d at Bonnie Sue follow, reasons we reverse the district and Bacon drove to Glennie’s pick house to grant court’s of the writ based up. him Glennie reacted angrily when he ineffective assistance of counsel affirm and saw Bacon in the back seat of Bonnie Sue’s rulings its rejecting Bacon’s other claims car, and a heated discussion ensued about for relief.

Bonnie relationship Sue’s with Bacon. See I, I Bacon 390 S.E.2d at At 329-30. some point, Glennie called “nigger,” Bacon a see Bacon Robert was convicted and sen- id., prompting Bacon grab a knife that tenced to death February for the he had placed earlier on the floor of the Clark, murder of Glennie estranged times, car fatally and stab Glennie 16 see lover, husband of Bacon’s Bonnie Sue II, Bacon 446 S.E.2d 565. Bonnie Sue Clark. lot, then to a drove movie theater parking Bonnie Sue and Glennie Clark were where Bacon’s car parked. Bacon and married in 1982 and had two children. Bonnie robbery Sue decided to fake a Because Glennie became an alcoholic and murder, up pursuant cover and to this abusive, Clark, physically see State v. ploy, Bacon knocked Bonnie Sue uncon- (1989); N.C. 377 S.E.2d 57-58 scious and went home his car. See id. Bacon, State v. 326 N.C. 390 S.E.2d (1990) (hereinafter I”), “Bacon Shortly p.m. after 11:00 on the same Bonnie Sue moved out of the day, police house found slumped Bonnie Sue up Bacon, and took residence with who steering over the wheel of her car next to coworker, friend, was a and another see body. Glennie’s dead See Bacon Clark, Despite 377 S.E.2d at 58. their S.E.2d at Bonnie Sue told Jackson- separation, Glennie continued to harass ville Police Officer Phillips J.J. that she information about Ba- he had learned ear sitting in the had been and Glennie crime, in the the officers suddenly opened involvement con’s car were doors when exclaim, “Oh with the informa- Bonnie heard her husband confronted Sue and she un- and, a.m., knocked her of God, don’t,” informed her before she at 3:05 tion story repeated Later, Bonnie Sue Bacon admitted conscious. rights. Miranda and to squad the rescue originally to members of had story parts transported who Donna Waters Sergeant admitted false and told to officers were investigat- told hospital. She also her to a planned had and Bonnie Sue that he were at children that her officers two crime. them her gave babysitter with a home convicted of first- was tried and home address. commit conspiracy to degree murder and later, a.m. on Feb- 1:15 hours Several I, to death.1 and sentenced murder Dinota Dennis ruary Sergeant appeal, the at 328. On direct hospital at the up picked Bonnie Sue upheld Ba North Carolina station police her to the Jacksonville drove found that evidence con’s conviction but story she again repeated where she jury concerning Bacon’s presented Wa- Phillips Sergeant told Officer investigation of Bonnie police in the role a.m., she ters, 2:00 approximately and at supported murder involvement in the Sue’s describing a began writing out statement mitigat statutory the jury instruction on movie the how she had been attacked appre “aid[ing] the ing circumstance unknown indi- by lot two parking theater capital of another felon.” N.C. hension viduals. 15A-2000(f)(8). Because no Gen.Stat. meantime, Deputy Jacksonville “(f)(8)” given, Su such instruction to the home Delma Collins went Chief the case resen preme Court remanded to check Bonnie Sue by Bacon and shared I, at 328- tencing. Bacon 390 S.E.2d See Collins Officer on Bоnnie Sue’s children. 29. at the a.m. was met arrived at 1:20 and Bacon, and who invited Collins by hearing, door Ba- At Bacon’s allowed in the house and officers testimony by other char- presented con’s counsel After the officers to “look around.” them had testified acter witnesses who shoes, clothing and Ba- bloody They pre- discovered also sentencing hearing. first he had killed Glennie witness, confessed that con by expert testimony sented officers to other directed the Clark and who testi- Billy Royal, Dr. psychiatrist recounted Bacon incriminating evidence. family background and fied about in the automobile he “had been that first psychological profile. Unlike victim, Glennie Clark and Sue Bonnie did not in- sentencing hearing, the State Clark; ‘nig- him a called Leroy the victim who in- testimony by the officers troduce ’ him; grabbed a knife ger pulled and murder, pri- relying instead vestigated the him; and stabbed knife from the victim testimony in the Bacon’s own marily on and, place while Bonnie Sue all of this took trial sentencing hearing. The first I, Bacon in the Clark was vehicle.” aggravating cir- jury one submitted to denied, however, at 335. Bacon S.E.2d murder was commit- cumstance—that the crime. in the Bonnie Sue was involved mitigating gain pecuniary ted for —and not, however, sub- The court did station, factors. Sue Bonnie police Back at the (f)(8) no mitigating factor because mit the statement for writing out her completed by the had State presented evidence Deputy a.m. After Sergeant Dinota 2:45 timing the exact that “showed Dinota of or Bacon Sergeant informed Chief Collins Clark, at 57. the same Bonnie Sue was convicted imprisonment. charges sentenced to life police] statements or their [Bacon’s] [to the MAR and for leave to amend his MAR, relation to the custodial status of [Bonnie and on May heard oral II, 446 Sue] Clark.” Bacon S.E.2d at 560. argument on the claims raised in Bacon’s MAR and amended MAR. jury The found the existence of the sin- gle aggravating circumstance May On the state MAR court pecuniary murder had been committed for issued an order denying all of Bacon’s gain and also found the existence of nine claims, stating that it did not “have the circumstances: Bacon amend, authority to modify, or vacate the significant history had no crimi- prior [November order denying 1995] activity; nal acted under the domination defendant’s Motion for Appropriate Re- of another person; history had no lief.” The court found that Bacon’s behavior; character, habits, violent had amended MAR was mentality, propensities and activities in- effect,

dicating unlikely that he is to commit a second Motion Appropri- crime; another violent had committed ate Relief since there pending was no murder as result of circum- Appropriate Motion for Relief to amend. recur; unlikely stances had estab- 20,1995, Court’s order of November co-defendant, lished Bonnie Sue was, is, a final order. For this Clark, sentence; had a life received reason, allegations [Bacon’s] as set out arrest; shown remorse since his and had in [the claims made in the amended him, family who loved continued to are procedurally MAR] barred. him incarcerated, visit while he [was] sought and was denied certiorari and would continue to do so he were review the North Carolina Supreme sentenced to life in prison. the United States S.E.2d at 565. This Bacon, Court. 348, See State v. 345 N.C. death, also recommended the sentence of (1997); 483 S.E.2d 179 Bacon v. North which the trial imposed. pur- court Carolina, 843, 124, sued direct appeals, culminating in a sec- L.Ed.2d 75 ond appeal before the North Carolina Su- Court, preme rejected which his various Bacon filed petition for federal ha- claims of error and 26, affirmed the death beas relief on November 1997. Ba- sentence. Id. at 570. petition presented con’s 28 claims that he justified pursuant contended this relief to September 25, 1995,

On Bacon initiated § 2254. U.S.C. The district court post-conviction proceedings filing a mo- granted the State’s motion for summary (“MAR”) tion appropriate relief in the judgment claims; as to all but one of the (“the Superior of County Onslow with respect to the court”). remaining claim—that date, state MAR On the same he attorneys at his Amend,” filed a “Notice of Intention to in hearing had him rendered ineffective which assis- he outlined various claims that were tance of by failing present counsel to not evi- they addressed the MAR because (f)(8) dence of the circum- required investigation additional and re- stance—the district search. court ‍​‌‌​​‌​​‌‌​​‌​‌​​‌​‌‌‌​​‌‌​​‌​​‌‌‌‌‌​‌‌​‌​‌‌​‌​‌‍conducted a Pursuant to a motion State, hearing ultimately the state MAR court determined that summarily de- Bacon had nied Bacon’s MAR on received ineffective November assistance counsel, later, of Almost three months which rendered the February result of his resentencing hearing “fundamentally Bacon filed a motion to reconsid- un- fair, least, er the denial of his or at very MAR and for leave to unreliable.” amend it. The granted upon state MAR court Based finding, the district court Bacon’s motions for reconsideration granted of the the writ on this claim. These court’s November 1995 order appeals dismiss- followed. 1419(a) North Carolina Criminal of the

II Act, perti- provides, which Procedure that Ba- first contends Nоrth Carolina part: nent (f)(8) ef- denied claim—that was con’s coun- because of counsel fective assistance for the denial grounds are following The that Bacon evidence present sel failed to relief, includ- appropriate a motion for of capi- another apprehension in the aided ing capital motions cases: filed Ba- defaulted. procedurally tal felon—was pur- previous motion made Upon a raise this con, did not argues, the State wa,s Motion [Article suant though he even in his first MAR claim and Other Relief Appropriate so, he did first and when position in a to do Relief], MAR, proce- it defendant was Post-Trial it in his amended raise durally adequately position defaulted. in a was underly- or ground raise the issue rejected the State’s district court did not present motion but proce- was that Bacon’s claim argument does do so. This subdivision the court ac- Although durally defaulted. previous motion apply when statute North Carolina’s knowledged that days after en- within made upon relied procedural bar imposing try judgment previous or the “generally” court state MAR by the adequate during pen- State-law independent was made motion procedural give rise ground that appeal. dency direct federal habe- claims on same default 15A-1419(a)(l). have We N.C. Gen.Stat. few review, there were found provision consti consistently that this held ap- being incidences bar reported adequate state independent tutes an pres- in circumstances similar plied may give procedural rise to ground that Consequently, it concluded ent case. habeas claims. See default of federal proce- “apply doctrine it could not French, 147 F.3d Boyd v. “as cirсumstances dural default” Cir.1998); Styles, 87- Ashe v. 39 F.3d this court.” they are before (4th Cir.1994); also O’Dell v. Neth see may not A habeas court federal (4th Cir.1996) erland, 1214, 1241 has a claim when review banc) (en unambiguous pro (holding on the basis its merits declined consider from statutes cedural rules state derived pro adequate state independent necessarily “firmly es are or court rules Thompson, v. cedural rule. See Coleman tablished”). 2546, 722, 731-32, 115 111 S.Ct. 501 U.S. Reed, (1991); Harris v. 489 L.Ed.2d 640 15A-1419(a)(l) § that Bacon concedes 1038, 255, 262, 103 L.Ed.2d 109 S.Ct. a valid provides a basis for “generally” (1989). rule is procedural A 308 state that But he contends procedural default. on a “depend[ it not independent ] does case, novel and application in is ruling,” Ake v. Okla constitutional federal v. See McCarver firmly established. 1087, homa, 84 105 470 U.S. S.Ct. (“The (4th Cir.2000) Lee, 583, 221 589 F.3d if it (1985), adequate is and is L.Ed.2d 53 ask ... question we must whether by the consistently applied regularly and consis procedural applied bar is particular court, Mississippi, see Johnson v. procedurally are analo tently to cases that 1981, 587, 578, 100 108 486 U.S. gous”). (1988). L.Ed.2d 575 MAR that the state Bacon contends cite MAR court did not the state While reconsideration order granting court’s Bacon’s authority its treatment MAR “resurrected” his dismissed barred, appears procedurally claim as judg- final delayed the date of § 15A- MAR relying the court was that

477 Basden, 579, ment. State v. rules, N.C. 515 of its procedural state-law we must 220, (1999) (holding S.E.2d nevertheless assure ourselves that the rule court’s decision to reconsider an earlier applied is a “firmly regu- established and dismissing order a MAR caused the MAR larly practice.” followed state Ford v. pending “to be [that] before court until it Georgia, 411, 423-24, denied”). again argues He thus 850, (1991). 112 L.Ed.2d case, In this 15, February MAR, 1996 amended that assurance is elusive. Because we ulti- arguably while a second or successive mately conclude that assertedly de- 15A-1419(a)(l), § MAR under revived the merit, faulted claims are without we will original MAR with amendments when the exercise our prerogative to decide Bacon’s granted court his motion for reconsidera- claims on the merits rather than on tion. grounds procedural default. Royal Taylor, Cir.1999).

The argues State the state MAR deprived court authority of its to re-

open original MAR because the motion Ill untimely. reconsideration was It ar- contends, The State on the merits of gues that the common-law rule that a (f)(8) claim, that the state MAR judgment cannot be altered after the end ruling court’s rejecting claim was not of the term of which it issued “contrary to” or “an applica- unreasonable Godwin, applied in this case. See State v. tion of’ the federal law governing the ef- 210 N.C. 187 S.E. (“Until fective assistance of argues counsel. It expiration of the term the or- that the district court erred in concluding judgments ders and of the court are in fieri, otherwise. judge and the power, has his dis- cretion, to make changes such and modifi- The district court found that Bacon’s in them may cations as he deem wise and counsel at the hearing appropriate jus- for the administration put failed to forth available evidence tice”). But there is some basis for doubt- support circum- ing whether this applies common-law rule stance that Bacon apprehen- aided in the MAR context. See N.C. Gen.Stat. felon, sion of another capital recognized 7A-47.1; Burton, § In re 257 N.C. 15A-2000(f)(8).2 N.C. Gen.Stat. Moreover, Ba- court found this “startling failure consider- pointed con has to a number of reported the virtual out roadmap laid unreported cases which a MAR North Carolina Supreme Court.” The dis- granted court has reconsideration after the trict court concluded that this failure was term of expired. court had constitutionally deficient and also that

Because the state reopened that, MAR court probability there was a reasonable MAR, the original question the evidence, of whether for the present but failure to the a governing state rule regularly was and a life might sentence have resulted. Ac- consistently applied to treat a motion to cordingly, the district court ruled that Ba- amend thereafter aas second MAR inis con had “not receive[d] effective assistance some doubt. While it guaranteed by is not our role to of counsel as him the Sixth resolve the issue or to review the correct- Amendment” and that the state MAR of (f)(8) ness the state MAR application court’s court’s rejecting decision ef- provides pertinent Section 15A-2000 in ‡ H: part: apprehen- The defendant aided in the (f) Mitigating Mitigating capital sion of another felon or testified Circumstances.— may circumstances which be considered truthfully prosecution on behalf of the in include, to, shall but not be limited the prosecution felony. another of a following: 478 that, “a “contrary probability claim thus to or reasonable but

fectiveness errors, application unprofessional an of the the result involved unreasonable counsel’s law as clearly proceeding established Federal deter- of the would have differ- Strickland, 694, in by Supreme mined the Court Strickland 466 104 ent.” U.S. 668, Washington, 104 v. S.Ct. S.Ct. 2052. (1984).”

2052, L.Ed.2d 674 Bacon contends that the North of addressing the merits Bacon’s gave Carolina his attor deprived that he effective claim neys roadmap” a “virtual of the evidence their failure to assistance counsel (f)(8) аn support mitigating- that would (f)(8) supporting evidence miti present instruction, in circumstance when the court circumstance, gating apply we the stan I Bacon stated: by the dard of review established Antiter- Penalty night Death Act of record reveals that on rorism Effective 1996. Because the state MAR court dis of murder Bonnie Sue told the Clark (as police mysterious Bacon’s claim on the missed merits assailants procedural opened on the the state car door her well as basis of her and slammed bar), confíne against steering we our review whether the head wheel thus rendering “resulted a deci her was un court’s determination unconscious. She to, contrary provide sion that was or involved an able to further information as to of, clearly application her After examined at being unreasonable estab assailants. law, hospital, exculpa lished Federal determined she reiterated her as tory Supreme Court of the United States.” 28 statements and reduced them to 2254(d)(1). Where, here, § writing police U.S.C. at the station. See State Clark, rejects a v. summarily state court claim with 324 N.C. 377 S.E.2d 54 (1989). reasons, articulating approximately its order never At the same out time, “adjudicat[ion] police theless constitutes an on told officers that: [Bacon] 2254(d). merits” for he in the Bon purposes had been automobile with Greene, victim, v. F.3d nie and the Cardwell Sue. Clark Glennie Cir.1998); Clark; Wright Leroy Angelone, v. the victim called him a (4th Cir.1998). him; “nigger” But pulled 156-57 because knife on grabbed have “no indication of how knife from we the state the victim and, facts,” him; applied place law to the we all of took federal stabbed while “necessarily perform [our] must own re Bonnie Sue Clark was the vehi Cardwell, point view of the cle. It was at this that the record.” F.3d investi Catoe, 339; gators also began see Green v. F.3d on Bonnie first focus (4th Cir.2000). possible prevail accomplice To his inef Sue Clark as claim, Obviously ver fective-assistance-of-counsel murder. [Bacon’s] true, proven two then require must meet well established sion the events was First, show was lying. [Bacon’s] ments. he “must that coun Bonnie Sue Clark representation objective story totally turn out to accu sel’s fell below did not be motive, intent, respect rate etc. standard reasonableness.” Strickland 668, 688, 104 defendant, Washington, However the fact assailants, mysterious killing was 80 L.Ed.2d 674 is a did the This showing suspicions difficult to make because as sufficient to arouse sessing investigating police the of as to Bonnie reasonableness counsel’s officers action, killing. ... in this is high course of review Sue’s role This “[o]ur suffi . mitigating counsel. v cient the circum ly deferential” to Wilson to submit (4th Cir.1998) Greene, the aiding apprehension stance “in of of Strickland, It (citing capital jury. 466 U.S. at another felon” 2052). Second, he must was error not to do so. S.Ct. demonstrate I, (emphasis Bacon add- first insisted that Bonnie Sue was “not ed). involved.” It after Bonnie Sue had received warnings Miranda and Ba- I,

The court’s decision in Bacon howev- con had been confronted with additional er, clearly attorney did not deal with error evidence that Bacon admitted that with the trial he and but court’s instructional er- Bonnie Sue had attorneys “planned get ror. The conduct of Bacon’s rid of’ resentencing the Glennie hearing, accordingly, Clark. The aid gave before judged light must be not in police the circum- suspicion was trained on Bonnie Sue by stances reviewed the North Carolina came from the fact that he confessed to his I, Supremе Court but on the own gave involvement and an account of particular circumstances of the resentenc- the murder that was inconsistent with the ing hearing. Supreme As the has Court story upon cover which he and Bonnie Sue emphasized, particular “no set of detailed agreed. attorneys could rea- rules for can counsel’s conduct satisfacto- sonably have jury concluded that rily variety take account of the of circum- give weight would little to this inadvertent Rather, by stances faced defense counsel. form of assistance in apprehending Bonnie judge courts must reasonableness Sue. conduct par- counsel’s on the facts of the In view of the tactical considerations case, ticular viewed as of the time of coun- counsel, by confronted we cannot conclude conduct, judicial sel’s scrutiny of that their failure to present evidence of the performance highly counsel’s must be def- (f)(8) mitigating circumstance at Bacon’s erential.” Roe v. Flores-Ortega, 528 U.S. 1029, 1034-35, hearing fell “outside the wide 145 L.Ed.2d (2000) (internal range professionally competent quotation citations and assis- omitted). Strickland, tance.” marks 466 U.S. at S.Ct. 2052. Accordingly, the state MAR The evidence that the North Carolina court’s denial of this claim was not con- Supreme supporting Court viewed as to, trary or an application unreasonable (f)(8) instruction had been introduced Strickland, 2254(d)(1), see 28 U.S.C. the first sentencing hearing by prose- the district court’s order denying summary through cution testimony police of the judgment on this claim and granting Bacon who investigated officers the murder. At the writ of corpus habeas must re- be however, resentencing, prosecution versed. tack, took a different choosing not to call

the officers as witnesses. This altered the

strategic landscape, attorneys and Bacon’s IV officers, could have considered that the stand, called to the would provide testimo- cross-appeal, On his Bacon contends ny damaging that was more to Bacon’s first reject- that the district court erred in helpful. cause than ing claims that counsel his were ineffective (1) by failing fully investigate mitigating Weighing danger damaging testi- present evidence and it to the 1991 sen- mony officers, by police Bacon’s attor- (2) tencing jury; by presenting videotaped neys also had to consider that the evidence ‍​‌‌​​‌​​‌‌​​‌​‌​​‌​‌‌‌​​‌‌​​‌​​‌‌‌‌‌​‌‌​‌​‌‌​‌​‌‍testimony (f)(8) possible pa- that referred supporting circum- (3) role imprisonment; if sentenced to life might provide only slight stance benefit. by informing jury that he had been While the North Carolina sentenced to death at the sentencing held that the form of first “aid” that Bacon provided instruction, hearing; by support reading into the rec- it was no ord unequivocal excerpts transcript means an demon- of Bacon’s purposive stration of a testimony effort Bacon to from the first hear- police investigation. assist ing. Bacon at counsel, with a mem- trial, together tal his rejected some of MAR court

The state team, traveled to prosecution they procedur- were ber claims these because Massachusetts, grew on where rejected Ayer, all of them ally defaulted and life, a spent all of and court denied most of his up district and lived the merits. The these Bacon’s interviewing Because on the merits. there claims weekend these de- procedurally either not neighbors. were Sixteen claims friends and former ques- default was procedural or the videotaped, por- faulted and were these interviews in Part given reasons for the tionable were videotaped interviews tions of the on the mer- each claim supra, we address sentencing presented both its. hearing. resentencing hearing and hearing, jury also resentencing At the

A psy- Billy Royal, defense Dr. a heard from ineffective-assistance-of- chiatrist, Bacon’s first information about related who his contention counsel claim based gleaned had background, which he Bacon’s a should have conducted that his counsel sister, and with Bacon his from discussions into investigation his back- thorough more records, testimony given from prison from Bacon, coun- According “[h]ad to ground. sentencing hear- first trial and Bacon’s investigation of proper a conducted sel taken psychological tests ing, and from pre- case, testimony could have been [his] Bacon. family large number of from a sented Supreme Court The North Carolina teachers, members, friends. These and testimony thus as follows summarized poi- personally have and witnesses could at the resen- by Bacon’s counsel presented shaped [his] events gnantly described tencing hearing: Bon- explain why helped to character manipulate Robert able to nie Clark was testimony presented further [Bacon] Similarly, Ba- killing into her husband.” nu- proceeding from resentencing at the diligent investigation con asserts that family friends and members merous produced evi- attorneys would have his affable, a person; pleasant incar- adaptation to positive of his dence any trou- gave never good student who ceration. leader; always ble; there giving and a popu- anybody; to hurt help; Ba- to not one court determined that The district sports-relat- lar in and involved in ineffeсtive assistance school claim of con’s activities; and a fine a clean-cut Md ed and that the was meritless counsel man; trustworthy young very a young rejection of the summary MAR court’s ability to excel man had the not an who was therefore claim on merits far as that he wanted to start of “Strickland anything application unreasonable business; and an at school or case. as life the facts of progeny” and its char- unquestionable citizen with upright After North Carolina acter. first death vacated Bacon’s sentence psychiatrist, de- Billy Royal, Dr. hearing, his sentencing ordered a new “pleasant,” of “aver- [Bacon] scribed not conduct an additional attorneys did relatively unemo- age intelligence,” background or investigation into view of tional, very “a limited instead on but relied prison record3 image very good self and not a himself they gathered prep information very successful being hearing. in terms first aration for the mur- Royal opined that life.” Dr. capi- prior Bacon’s two months evidence. Counsel should sentencing, derance considered 3. At the first deciding adaptability prison second-guessed life not to raise be evidence Bacon’s unanimously jury. find that it had subject and did not before by prepon- mitigating factor proven to be

481 Strickland, meshing judgments.” of the counsel’s 466 resulted from the der 691, Thus, and co- [Bacon] needs of U.S. at 104 S.Ct. 2052. we psychological conspirator judgments [Bacon] Bonnie Sue Clark. review counsel’s not for what is in- history becoming ... of “had a or “prudent appropriate, but what is that people were need constitutionally compelled.” [with] volved United States help “to rescue Cronic, 648, 38, 104 assistance” and tried of v. . 665 n. S.Ct. by reported from her 2039, Ms. Clark abuse a 80 L.Ed.2d 657 And deci slurs, It her husband.” was the racial investigate sion not to further is “reason however, by directed at Ser- [Bacon] precisely able to the extent that reasonable that geant Clark the car [Glennie] professional judgments support the limita [losing] in his control.” The “resulted Strickland, investigation.” tions on 466 act,” “impulsive was thus an murder 691, 104 U.S. at though [Bacon] and even stabbed Ser- case, In this Bacon’s counsel could rea times, some sixteen geant [Ba- Clark concluded, sonably have based on their very per- angry was “a frustrated con] investigation, earlier that the evidence Royal time.” Dr. concluded son at the they developed present would be capacity appreciate that “to [Bacon’s] ing give picture would an accurate criminality of his conduct or to con- personality of Bacon’s and that further requirements form his conduct to the investigation Bacon’s background into killing law” at time of the of the would not fruitful. a determina be Such and the murder was com- impaired was any tion could based their view that be “under the [Bacon] mitted while further evidence would be cumulative or mental or emotional [a] influence that the unhappy circumstances Bacon’s disturbance.” childhood not miti have substantial Bacon 446 S.E.2d at 549. eyes jury. value in the gating diligent Bacon asserts that a more inves- (4th 239, Royal Taylor, v. 188 F.3d 249 tigation background pro- of his would have Cir.1999) (“[R]eliance psy on evidence of showing duced evidence that he did not chological personal history or impairments father; positive relationship have a with his mitigating can as factors be adulterer; that his father was an inveterate ” ‘double-edged (quoting Wright a sword’ him that Bacon’s mother enlisted in her Angelone, v. 151 F.3d 162 Cir. infidelity; еfforts to uncover his father’s Moore, 1998))); F.3d Plath v. 130 home, a in the result tensions (4th Cir.1997) (failure 601-02 to “make an developed bedwetting a serious defen [the exhaustive examination of problem persisted until he was or background and mental state” was dant’s] old; years he was well-liked light mitigat of other unreasonable classmates; and that he teachers presented); evidence Turner v. protected stopped fights others (4th Cir.1994) Williams, 35 F.3d that “[t]he school. contends rele- (“[Counsel] some thought might offend value of this vance and evidence they Virginia jury members of the rural in a recruited [Bacon] case where deprived up emphasized defendant’s] [the to kill her alcoholic abused woman might com bringing suggested or that one patent.” abuser it”), a overruled on mit murder as result Netherland, a de v. evaluating grounds by claim that other O’Dell (4th Cir.1996) (en banc); of F.3d fendant received ineffective assistance Dugger, counsel because counsel conducted an in see also Card Cir.1990) (11th. (“[E]mphasizing adequate investigation, the “decision not to directly deprived client’s childhood does not have a investigate must be' assessed circumstances, very impact in all the on a northwest reasonableness beneficial jury, many the fact applying heavy given measure of deference to Florida lives, ly jury’s appraisal “influence[] but have not jurors have had difficult conduct”); culpability.” defendant’s] Parks v. moral [the turned to criminal — -, Brown, (Terry), 1509-10 Cir. U.S. at 840 F.2d Williams 1987) not to call at 1515. the Court held that (holding counsel’s decision While justification strategy witnesses at a trial could not be a a succession of character hearing a reasonable for the failure of Williams’ counsel to de- capital sentencing decision, expо mitigating that the noting velop present tactical and and available evidence, say history might well we cannot the same with sure of defendant’s life in of Bacon’s eyes respect strategy him further to the counsel. prejudiced have jury), grounds, on therefore conclude that the state MAR rev’d other We (1988) (en banc), sub nom. claim on the merits rev’d court’s denial of this Parks, application an unreasonable v. U.S. S.Ct. was not Saffle 1257, 108 L.Ed.2d Strickland. Notwithstanding these considerations B not to devel- supporting counsel’s decision evidence, per Bacon also contends that the Bacon ar- op further formance of his counsel at the resentenc recent deci- gues Supreme that the Court’s — constitutionally deficient ing hearing was (Terry) Taylor, in sion Williams they presented videotaped deposi U.S.-, 146 L.Ed.2d 389 because neigh of Bacon’s friends and former (2000), given an tions requires that be explicit implicit that contained or ref evidentiary bors hearing on this issue. possible parole to if sentenced erences his (Terry), the defendant’s counsel Williams imprisonment. life Because Bacon began preparations argument appeal direct only made this proceedings a week be- phase Court, Supreme the North Carolina which trial to conduct an investi- fore and “failed it, rejected see Bacon 446 S.E.2d at have uncovered exten- gation that would 554-55, our limited describing review is to determin graphically records sive Supreme the North that was whether Carolina nightmarish Williams’ childhood” rejection in Court’s of this claim “resulted privation.” and Id. at “filled abuse to, contrary or involved “failed decision was 1515. His counsel also of, application clearly an unreasonable es intrоduce available evidence that Williams ” law, tablished Federal as determined Id. mentally was ‘borderline retarded.’ States,” Court of the United jury in case also 1514. The Williams’ 2254(d)(1); 28 U.S.C. see also Williams “parents learn that had been did not his — -, 120 S.Ct. at neglect (Terry), imprisoned for the criminal id., siblings,” or that he Williams and his ... “prison received commendations depositions of Bacon’s videotaped drug help breaking up prison in neighbors generally friends and former wallet,” guard’s ring returning and for testimony peaceful na- provided of Bacon’s id. at 1502 n. 4. The evidence good and character. Bacon’s counsel ture mitigation in

Williams’ counsel did offer witness, think if one “You Robert asked in had “turned himself was Williams prison in and whatev- given was life served actions, expressing ... remorse for his years er number of he served cooperating police with the after that.” released, in he would be welcomed back Id. at 1515. community?” responded, this The witness him. I think his friends hardly noting that the omitted “I would welcome It bears him.” A second witness (Terry), in unlike the would welcome evidence Williams asked, case, cu- “If the does sentence Rob- evidence omitted was not a num- prison that had ert to life serves mulative of the evidence paroled, years, and he’s released or and would have been more like- ber of presented, family, who were absent from the him back the com- you welcome would closing convicted knowing resentencing proceeding. During that he’s been munity, murder?” This witness first-degree arguments, sought Bacon’s counsel to ex- Two absence, in the affirmative. responded saying: also plain asked, without ex- were other witnesses they But mean don’t care. doesn’t Ba- possibility plicit reference original Robert’s mother testified paroled, they could be con whether trial.1 She was here. And Robert’s Both Bacon into their homes. welcome mother had to herd in the courtroom sit they would. witnesses stated a death judge impose listen to claim, the North Disposing of Bacon’s penalty suggest on her son. And so I found that Supreme Court surprise you Carolina that it shouldn’t that she’s again. not here questions posed of the to the thrust witnesses, upon [Bacon’s] dwelt these Bacon contends that this mention of his and how out purported good character previous prejudicial sentence was killing the was. The refer- of character jury’s argues tainted the decision. He parole to all occurred the con- ences jury likely the was much more to former friends and [Bacon’s] text of knowing impose a sentence of death that a of him unchanged their favorable view jury had death. previous recommended do not be- following his conviction. We Disposing appeal, of this claim on direct unreasonably lieve defense counsel acted Supreme stated: the North Carolina Court testimony. eliciting this favorable closing] counsel’s [defense We deem II, at 554. The court Bacon 446 S.E.2d explain argument a trial tactic to the performance the of Ba thus found that absence of mother. See State [Bacon’s] testimony this presenting con’s counsel Richards, 474, 500, 242 294 N.C. objective standard of not fall below an did (1978). addition, In S.E.2d reasonableness. We cannot conclude jurors knowledge by mere the of the to, contrary or in this determination was prior death sentence does not necessari- of, the application volved an unreasonable ly prejudice demonstrate to the defen- prong of the Strickland test. See first Simpson, dant. State v. 331 N.C. 688, 104 2052. at 353-54 415 S.E.2d failed to We conclude that defendant has C performed below show that his counsel Bacon contends that his counsel’s objective an standard of reasonableness be performance similarly deficient prejudice or that actual resulted. jury that they cause informed the II, The district 446 S.E.2d by been sentenced to death previously that the North Carolina Su- court found jury. Again, argu another because preme application Court’s Strick- presented rejected to and by ment was unreasonable, even Court, land test was not Supreme see Bacon North Carolina expressed con- though district court we determine any attor- competence “the cerns about “con whether that court’s decision was prior death ney who would mention to, trary ap or involved an unreasonable any context.” We penalty of his client of, clearly established Federal plication court’s conclusion. law, agree with the district as determined States,” 28 U.S.C. United miti- submitted to the Counsel 2254(d)(1). the defendant’s gating “[t]hat circumstance him, to visit family loved has continued cross-examining psychia- defense While incarcerated, and will him while he Billy Royal, prosecutor [was] Dr. the state trist if he sentenced to life presence continue to do so testimony regarding elicited have con- might Counsel imprisonment.” members of at Bacon’s first trial of several type of eluded that the absence of Bacon’s mother tactical decision which severely under- requires from the courtroom would deference.” Strickland By alluding mine this contention. Although Bacon testified at the first sen- a mother anguish emotional would feel tencing hearing in not to elected deаth, upon seeing her son sentenced to resentencing hearing. do so at the 1991 provided explanation for the counsel Nonetheless, much of Bacon’s 1987 testi- appealed absence of Bacon’s mother mony pre- was read into the record. indeed, jury’s sympathies. And testimony, senting this Bacon’s counsel jury ultimately cir- found questions read aloud the he had asked have mitigating cumstance to exist and to Bacon on direct examination in the first value.4 hearing, well as Bacon’s re- “highly deferential” form of review sponses, prosecutor and the read aloud prescribed requires Strickland us to questions asked on cross-examination and “indulge strong presumption Bacon, coun- According Bacon’s answers. range sel’s conduct falls within the wide testimony “extremely damaging,” was professional assistance.” reasonable particularly Bacon’s statements that he Strickland, 466 104 U.S. S.Ct. not in was love with Bonnie Sue Clark and Accordingly, her,” we conclude that the North “would have never been love Carolina Court’s determination which tended to undermine Bacon’s efforts provide that Bacon’s counsel did not con- theory to rebut the State’s that the mur- stitutionally deficient assistance when he pecuniary der committed for gain. jury prior that, informed the death sen- by participating Bacon now contends an contrary evidence, tence was not to or unreason- presentation in the of this his application able of Strickland. counsel abandoned role as an his advocate adjunct prosecu-

and “acted as an D tion.”

Finally, agree Bacon claims that he was We cannot with Bacon’s charac recog rendered ineffective assistance of counsel terization. As thе district court nized, attorney his into the prior testimony because read record would have at the resentencing hearing damaging por been admissible at the hear testimony ing any tions of Bacon’s from the first of a party- event as admissions 801(d)(A). sentencing hearing, which he contends R. Evid. opponent. See N.C. “helping present reasonably amounted to the State its Bacon’s counsel could de have MAR by reading testimony case for death.” The state court termined that claim, himself, summarily stating only sting” denied the he could “remove the better entirely by prose “[t]he that affidavits and the record do not than if it were read - — States, support the claim that the defendant’s cutor. Ohler United -, -, 1851, 1854, ... that counsel were deficient or he was S.Ct. (2000) prejudiced thereby.” The district court (discussing L.Ed.2d 826 defense strategy preemptively also concluded on the merits that “coun im introducing evidence). entirety peachment agree sel’s decision to read the of his We with the testimony client’s trial into the record was district court that this decision was “hard- really proceeding 4. The statement Bacon's counsel did the current was a second jury anything already not tell the that was not hearing and one that would have jurors obvious to them. The during had been told unnecessary if the first sentence had proceedings the course of four seeking. been the life sentence Bacon was years earlier there had been a trial and that facts, substantially Given these we discount during guilty it Bacon had been found any harm to have been caused defense jury murder. The also knew that Bacon had argument mentioning previous counsel’s given testimony previous penalty phase at a sentencing. Thus, hearing. jurors would have known juror Even evidence delibera tactic” and ly unreasonable admissible, tions were we believe claim dismissal of this MAR court’s allegedly made would not indi statements was therefore a reasonable the merits injurious effect or cate “substantial application of Strickland. determining jury’s influence in ver Abrahamson, Brecht v. 507 U.S. dict.” V 619, 637, 123 L.Ed.2d 353 States, (quoting Kotteakos v. United to his ineffective-assistance- In addition L.Ed. claims, that his Bacon contends of-counsel (1946)). appropriately could by racial sentencing hearing was infected race and that of have discussed Bacon’s bias, and due him of a fair trial depriving accomplice victim and because evidence of this conten- process support of law. suggested trial that Bacon had killed Glen tion, submitted Bacon relies on an affidavit epithet he used a racial nie Clark after ‍​‌‌​​‌​​‌‌​​‌​‌​​‌​‌‌‌​​‌‌​​‌​​‌‌‌‌‌​‌‌​‌​‌‌​‌​‌‍jurors attorney, who interviewed six by his about Bacon’s during heated discussion sentencing hearing from Bacon’s Ac relationship with Bonnie Sue Clark. 1987 trial. juror from Bacon’s an alternate cordingly, the district did not err attorney that jurors told Bacon’s dur- Two denying Bacon’s claim for habeas relief on sentencing deliberations reference ground. involve- to Bacon’s race and to his made relationship with ment in an interracial VI an African Clark. Bacon is Bonnie Sue Finally, rights Bacon that his contends American, and Bonnie Sue Clark Glen- Fourteenth Amend- Eighth under the juror are white. The alternate nie Clark ments violated because the trial court were ju- attorney that recalled Bacon’s she told jury that if Bacon refused to instruct the making jokes during racial the course rors imprisonment, to life he were sentenced of the trial. parole for for 20 eligible would not be arguments years. To rebut State’s MAR court considered and The state dangerousness, future concerning Bacon’s rejected this claim of error without testimony presented Bacon’s counsel evidentiary hearing, concluding that testified that Bacon several witnesses who forecast in the affidavit concern evidence back into the commu- would be welcomed jokes made ing alleged statements and and was nity if received a life sentence he in inadmissi jurors deliberations be requested Bacon then later released. under N.C. 15A-1240. ble Gen.Stat. parole eligibility, clarifying instruction on rejected this claim The district court also give. to the trial court refused which relief,.find petition in Bacon’s for habeas counsel’s affida ing “allegations that the .in Bacon chal appeal, direct On to warrant an eviden- are not sufficient vit ruling on federal trial court’s lenged the or of the writ.” tiary hearing granting on grounds, relying Sim constitutional Evidence, Rules of like the The Federal Carolina, 154, 114 512 U.S. mons v. South statute, impeach prohibit North Carolina 2187, 129 L.Ed.2d 133 S.Ct. to jury of a verdict reference ment rejected Supreme Court North Carolina jury de taking place during conversations on distinguishing Simmons challenge, 606(b); see liberations. See Fed.R.Evid. not have ground that Bacon would States, Tanner v. also United ineligible parole. for been 2739, 97 L.Ed.2d 90 The district 446 S.E.2d at 558-59. Welborn, reason, (1987); con v. 176 F.3d the same Gosier denied the claim for (7th Cir.1999) Carolina cluding Fed. that the North (applying 610-11 606(b) that Simmons correctly held capital proceed R.Evid. habeas in this case. We controlling was not ings). in agree. applies only allege “Simmons to instanc which to errors his trial and where, matter, legal record, however, is no sentencing; es there on this I am possibility parole jury if the decidеs the not convinced that each of his claims have appropriate prison.” sentence is life given they the serious consideration — -, Angelone, Ramdass Specifically, alleged are due. that: -, (1) 147 L.Ed.2d resentencing his counsel disclosed to (2000); (O’Connor, see also id. at 2127 previously that Bacon had re- Moreover, J., concurring). we have con sentence; (2) ceived a death his resentenc- sistently to extend refused Simmons properly investigate counsel failed to situations where the defendant would be and introduce mitigating relating evidence See, eligible parole. e.g., Roach v. An background; to his childhood and (4th Cir.1999); gelone, 176 F.3d his counsel failed to investi- French, Keel v. 162 F.3d gate and introduce evidence of Cir.1998); Greene, Fitzgerald v. adaptability prison. Bacon has nev- (4th Cir.1998). 357, 367 Because Bacon an evidentiary hearing any er received on ineligible parole would not have been claims, properly preserved of these and he law, under North en Carolina was not would be entitled to relief the factual titled to a Simmons instruction on parole allegations supporting prove these claims eligibility, properly and the district court to be true. Given these circumstances and petition denied his for habeas relief on this not, my the fact that North has Carolina claim. view, treated these three claims a man- they ner that indicates were taken serious-

VII ly, I must dissent.2 reasons, foregoing For the we reverse I. grant

the district court’s of the writ of corpus habeas based ineffective assis- discussing request Before for a tance of counsel and affirm its rulings hearing, I majority’s must address the rejecting Bacon’s other claims for habeas suggestion proce- that these claims were corpus relief. durally suggestion defaulted —a relied upon in large part the North Carolina PART, AFFIRMED IN REVERSED deny courts to Bacon’s claims. IN PART The state of North courts Carolina con- KING, Judge, dissenting part: Circuit in procedurally cluded that Bacon defaulted right It has been said “The to be on the three aforementioned Amend- Sixth right heard does not ... the to be include Although majority ment claims. the has sense, seriously.”1 In very taken real conclusion, suggested this to correct be the opposite penalty the is true in death cases. it also has exercised its discretion to ad- only A defendant must not be allowed dispose dress—and of—Bacon’s claims on opportunities ap- to be heard —on direct merits. For the the reasons set forth relief, in peal, appropriate a motion for and below, I agree proce- cannot that Bacon in corpus petition, a federal habeas but durally defaulted these claims in state pro- claims made in the course of those court.

ceedings given must be consid- serious they A.

eration are due. case, timely In this there is doubt that filed Appro- no Rob- his Motion for (“MAR”) 25, proceedings priate September ert Bacon has been afforded Relief on Quotations, Harper judgment respect 1. The Book of at 255 2. I concur ed., (Robert 1993) (Hu- Fitzheniy majority’s disposition I. 3d ed. of Bacon’s other claims Humphrey). appeal. bert and the State's Amended MAR, on each of- the claims Bacon filed a Along with his 1995. n of Intention captioned “Notice MAR. pleading Appropriate Relief’ Motion for Amend B. (1) (“Notice MAR”), numer- which outlined explained claims ous other a state’s generally We do not review funding capital resource for cutbacks procedural of a claim based on dismissal center, of his mo- coupled with the denial however, default; declaring the basis for time, him precluded for extension' of tion independent an procedural default must be at that time. exception each filing from adequate ground. state See Wain 20, 1995, the state MAR On November 72, 81, might Sykes, v. 433 U.S. 97 S.Ct. without a hear- denied Bacon’s MAR court (1977); 2497, L.Ed.2d 594 see also the Notice MAR. ing and took no action on Davis, 445, F.3d Thomas v. 15, 1996, filed his February On Cir.1999). ground In order to be for the State response, MAR.” “Amended court must have independent, court had no that the state MAR argued procedural based its decision on a state MAR, authority this Amended to consider Reed, 489 U.S. bar. See Harris already dis- the court had inasmuch as 103 L.Ed.2d 308 109 S.Ct. February MAR. On missed the turn, In’ bar is procedural stating: disagreed, the state MAR “firmly is a estab “adequate” that the ruling of this Court It is the prac followed state regularly lished and amend- grant the defendant’s will Kentucky, tice.” James v. That Appropriate Relief. ed Motion for 348-49, L.Ed.2d denying an I the order %oillreconsider (1984). Thus, reviewing this state MAR dismissing the evidentiary hearing and default, finding procedural we court’s and I will Appropriate Relief Motion procedural whether must determine arguments on set a date for further rule —that a North Carolina state default or not the Court question of whether possess power MAR court does evidentiary hearing or an grant will dismissal of an MAR—was reconsider its deny the defen- whether the Court will followed” “firmly regularly established and amended Motion dant’s motion independent state basis such that it is pleadings. Appropriate Relief on corpus to bar federal habeas “adequate” added). (emphasis J.A. procedural default review. While a rule of subsequently MAR court The state consistently regularly or must have been 6,Mаy During argument heard courts, there need not applied by state argued proceeding, State “undeviating adherence to such have been power to did not have the state MAR court exception.” no Meadows admitting rule of ruling the “Amend- reconsider its because 903, 907 Cir. Legursky, v. MAR,” actually a “Second MAR” was ed banc). 1990) (en prohibited under the state was which Here, MAR court concluded the state By at 479. an order dated rules. See ante authority it the to reconsider that lacked agreed the state MAR court May However, initial MAR. its denial of Bacon’s the Amended with the State denied decisions, the Su- in at least two recent MAR, holding, “The does not have not North Carolina has preme Court of amend, authority modify, or vacate the to actually but endorsed only permitted, denying order entered the defendant’s the authority to reconsider state MAR court’s holding on its J.A. 480. Based [MAR].”3 example, MAR. For the denial of an its authority it no to reconsider Basden, 579, 515 S.E.2d 350 N.C. MAR, State MAR the state denial of MAR, (1999), filed an the defendant hearing evidentiary Bacon an court denied merits. the claims on the summarily missed most of dis- 3. The state MAR court also and the state MAR court denied him relief North Carolina was not specifical- asked to Thereafter, and dismissed the MAR. the ly pass ability on the of the state MAR defendant filed a motion to vacate the or- court to a supplemental consider MAR MAR; denying der the State moved denied, after the MAR initial had been for summary of denial this motion to va- only permitted Court not post-denial cate; and the state MAR granted court supplementation MAR, but it also respond. defendant time to Id. at 221. reversed the state MAR court’s of denial In characterizing procedural circum- the supplemеnted MAR. Id. at 764. Basden, stance present Supreme Nevertheless, the State essentially main- Court of North Carolina language utilized tains, in argument an apparently adopted equally apposite here:4 by the MAR case, state court in this that a facts, On these we conclude that defen- North MAR jurisdic- Carolina court has no dant’s motion to vacate the deny- order tion to an reconsider MAR once it has ing his for appropriate motion relief was In support denied. argument, essentially a motion to reconsider the upon State relies case, another recent denial of his motion for appropriate re- Green, State v. 350 N.C. lief. By allowing time to re- defendant Green, In the defendant filed spond to the State’s motion sum- for MAR, an denied, which then mary denial motion to of defendant’s moved for reconsideration of the denial. vacate, the trial court resurrected defen- Id. at 726. The MAR court apparently dant’s appropriate motion for relief. motion, failed to act on his and he had no The trial court’s actions amounted to a petition writ of certiorari pending be- reconsideration its order dismissing fore the Supreme Court of North Carolina. motion appropriate re- defendant’s Id. at 728. Because the state MAR court lief, thereby causing that ap- motion for had not granted the motion to reconsider propriate to be pending relief before its denial of Green’s MAR and because no court trial until again denied. MAR was otherwise pending, the defen- added). Id. at 222 (emphasis Plainly, by dant was not entitled to invoke discovery endorsing the MAR, “resurrection]” anof provisions applied to MARs “pending” Supreme Court of North Carolina en- at thе a state discovery time statute was a state MAR dorsed court’s authority to Id.; passed. supra see also note 4. its denial of reconsider an MAR. At the least, very Basden establishes that the de- However, Green, holding in which nial an MAR does not automatically the state granted MAR never defen- divest a jurisdiction state MAR court of reconsider, dant’s motion cannot be over MAR. read —as the State would have us be- establishing lieve—as Court of North Carolina state MAR endorsed, McHone, also courts are power State v. without the reconsider N.C. (1998), my view, S.E.2d 761 denied MARs. In power merely Green MAR courts to held that if a reconsider denied state MAR court does McHone, grant MARs. reconsider, a motion defendant filed an then the MAR, which the state MAR MAR court “pending.” sum- not More importantly, marily denied. Id. at 762. even if Subsequently, did Green stand for the that rule (1) the defendant filed a motion to vacate the State posits state MAR courts —that (2) the denial order a supplemental have authority no to reconsider denied MAR. Id. While the Court of MARs—the State has effectively estab- Basden, 222, 4. 515 S.E.2d at slight- coveiy involved a statute was enacted. Because the ly question presented different than that here. "pending,” MARwas held to be the defendant question The in Basden was whether the de- discovery was entitled to of the Government’s 21, “pending” MAR fendant's was of June prosecution file. 1996, particular post-conviction when a dis-

489 n circumstances. At under certain petitio is com- holding of lished, Green when the 2254(e)(2) McHone, outset, prohib 28 U.S.C. Basden and that of pared with its, evidentiary exceptions, not an rule is with certain default procedural that applicant if the hearing in district court regularly. being applied basis of a develop fаctual “failed to default short, procedural the rule of “ However, develop’ to im ‘failed claim.” the state MAN in this case—that applied , diligence,” lack Williams some of plies its authority to reconsider lacked the court — U.S.-,-, (Michael) Taylor, v. it al- MAR deny the because decision 1487, 146 L.Ed.2d 435 120 S.Ct. withstand had been denied —cannot ready case, (2000), and, diligently in this independent— not rule is review. evidentiary was denied—an sought rule in —and standing as it is not inasmuch in state court. (cid:127)hearing at each opportunity Carolina, if it were inde- and even North Thus, not, of sec purposes Bacon has adequate certainly is not it pendent, —as 2254(e)(2), develop” the facts tion “failed In- application. by its uneven illustrated claims, and the underlying his section the Su- deed, recent decisions of the most Id.; 2254(e)(2) apply here. bar not does actually of North Carolina preme Greene, v. 152 see also Cardwell F.3d Thus, what- contrary approach. endorse Cir.1998) (4th under (holding no bar of Ba- the merits may be said about ever 2254(e)(2) sought, but applicant section MAR claims, that the state it is clear con’s refused, evidentiary hearing these issues as improperly treated court). state background, I next With defaulted. Bacon’s Sixth merits of three of turn However, by set surmounting the hurdle claims. Amendment 2254(e) translate to a not section “does entitled to [Bacon] conclusion IÍ. Lee, 215 F.3d hearing.” Fisher v. relief corpus habeas justify To federal Cir.2000). Instead, applicant for an ineffective assis allegations based evidentiary to an an entitlement establish counsel, must establish two tance one of the prove must first six hearing, he First, must demonstrate he elements. Supreme Court out factors set was defi performance counsel’s Sain, 293, 313, 83 v. 372 U.S. Townsend inеffectiveness, a ‘de “To cient. establish Fish 9 L.Ed.2d S.Ct. repre counsel’s must show that fendant er, factors are: Those six objective standard fell below an sentation ” (1) dispute factual the merits of (Terry) v. Williams reasonableness.’ hearing; in the state were not resolved — -, -, 120 S.Ct. U.S. Taylor, (2) is not factual determination the state (2000) 1495, 1511, (quot L.Ed.2d as a record fairly supported Washington, 466 U.S. ing Strickland (3) whole; fact-finding procedure L.Ed.2d 674 court was not by the state employed (1984)). Second, demonstrate he must fair hear- a full and adequate to afford performance prejudiced the deficient (4) allegation there is a substantial ing; prejudice, “To defense. establish (5) evidence; newly discovered is a reasonable show that there ‘must adequately de- material facts were that, unpro for counsel’s but probability hearing; or veloped at the state-court errors, proceed result fessional ” appears any reason different.’ have ing not afford the did trier fact — at-, (Terry), Williams a full and fair fact applicant habeas Strickland, (quoting 1511-12 S.Ct. at hearing. 2052). 694, 104 313, North 745. The hearing in to a A defendant is entitled never afforded courts have Carolina corpus habeas with a federal connection hearing on these passage three Sixth Amendment from the decision of the Thus, Bacon, it necessary claims. is not to dwell Court of North Carolina in State (“Bacon 66, factors; on the Townsend 337 N.C. 446 S.E.2d 542 several them II”), plainly are satisfied here. describes both the error and resolu- tion, appeal, on direct argu- of Bacon’s Second, hearing to establish that a was ment: ‍​‌‌​​‌​​‌‌​​‌​‌​​‌​‌‌‌​​‌‌​​‌​​‌‌‌‌‌​‌‌​‌​‌‌​‌​‌‍mandatory, allege Bacon had to “facts Defendant next contends that his coun- that, true, if would entitle him to relief.” provided sel representation ineffective Fisher, 215 F.3d at 454. This standard is by presenting evidence that defendant analogous to applied the measure when had received death sentence in the determining sufficiency of a complaint. first sentencing proceeding. During de- Markets, Compare Eastern Shore Inc. v. closing argument, fendant’s counsel J.D. Associates Ltd. Partnership, 213 F.3d mentioned defendant comes from a (4th Cir.2000) 175, (“In reviewing loving family during and that his first dismissing district court’s order a com- sentencing, the courtroom contained sev- plaint under Federal Rule of Civil Proce- members, family eral but due to finan- 12(b)(6), determine, ... dure we [inter cial considerations and other conflicts alia, ... complaint, ] whether the under work, revolving around family the same relief.) alleged” the facts states a claim for members were unable to attend this re- (quotation omitted), Fisher, marks sentencing. argued: Counsel further (in 215 F.3d at 454 determining whether “And mother had to hearing [defendant’s] sit mandatory, we must ascertain here in the courtroom and listen to a “that, applicant alleges whether facts if judge impose true, relief.”). penalty a death on her would entitle him to son. And so I words, suggest other in assessing whether an evi- surprise you shouldn’t that she’s not dentiary hearing the district court was again.” here mandatory, legal we must assess the suffi- claim, ciency of that not the truth of the Defendant contends that this mention of And, facts underlying that claim. previous as is the prejudicial sentence was dismiss, case with only motions to jury’s because and tainted the decision in this legal sufficiency applicant’s argues case. He was much claim, it, and not the in support likely facts impose more a sentence of are tested in determining knowing whether a hear- death previous jury that a mandatory, we must assume the rеcommended death. truth of alleged. all facts Eastern We deem argument a trial tactic to Cf. Shore, 213 F.3d at 180. explain the absence of defendant’s moth- Richards, 474, er. See State v. 294 N.C. context, In this three of Bacon’s claims (1978). 242 S.E.2d In addi- that, true, allege facts would establish a tion, mere knowledge by jurors claim. allegations meritorious I take these prior death sentence does neces- turn, performance of deficient before sarily prejudice demonstrate to the de- turning to the prejudice prong. fendant. Simpson, See State v. 331 N.C. 353-54 A. We conclude that defendant has failed to show that his performed counsel below objective an standard of reasonableness primary first and error that I be- or that prejudice actual resulted. may properly lieve be resolved after evidentiary (brackets hearing is based on Bacon’s Bacon 446 S.E.2d at 555 lawyer’s improper added). revelation to the resen- original emphasis Subse- tencing jury that previous- Bacon had been quently, the ineffective assistance of coun- ly been sentenced to death. The following arising sel claim out of this error was sentencing hearing— during fence his first MAR by the state

summarily dismissed Certainly, jury. there were several apparent- grounds procedural court explain his ways to appropriate more the merits. J.A. ly also on mother’s absence. claim, district the reviewing this In impli- its with clearly concerned was claim, Also, court the district resolving in this concluded: but cations applied a “reasonableness” may court have questions specifically that has been over- grave inquiry has this court While is, attorney it any by the That Supreme turned Court. competence the about ap- pen- death the distriсt court prior the is unclear whether would mention who context, especial- claim. The any subjective in test to this plied his client alty of the state court challenges having exercised court ascertained whether ly after “in a manner that prior death this claim disposed of the any jurors who knew is sentence, apply jurists agree the all unrea- must reasonable would the court Green, 870; see as set out 143 F.3d at of review sonable.” See AEDPA’s standards French, (Terry), 163 F.3d at 865 also Williams Green[ (“In Cir.1998) (“habeas words, autho- is autho- relief is relief other habeas have de- courts have state courts rized when the only when the rized ap- or by interpreting by interpreting or question cided the question decided in a in a manner precedent precedent plying the relevant relevant applying agree all all is jurists jurists would would that that reasonable manner reasonable unreasonable.”). unreasonable.”) court the district ]. Since agree is however, Supreme ruling, its issued court then reviewed 53. The J.A. the “[no] has rea- Court determined of this resolution courts’ Carolina North un- jurist” language inapposite sonable ju- “reasonable and concluded that claim — (Terry), der AEDPA. See Williams Supreme Court agree with the could rists at-, 1521-22 application this of North Carolina (“The [‘no this additional rea- placement of of effectiveness standard Strickland jurist’] overlay on the ‘unreason- sonable Id. counsel.” erroneous.”). application’ able clause majority’s disposi- disagree I the district it is whether Because unclear reasons. claim for several tion of this objective le- subjective or applied a First, of North Car- test, appeal this we remand gal should that this revelation —that olina’s conclusion proper legal standard. application sen- a death received previously Bacon had “trial, short, claim of ineffective In Bacon’s tac- a reasonable tence—constituted improper in the reve- evidence; in assistance of any counsel was not based on tic” lation, resentencing jury, of earli- an to his fact, right was denied never been tested sentence has er death hearing on this issue both evidentiary may it have been evidentiary hearing; court. the district MAR court and the state test; legal superceded dismissed under a conjure possible no regard, I can that, true, if would dem- lawyer and it avers facts why Bacon’s own reason legitimate by his law- performance this onstrate deficient necessary to reveal it believe would I believe yer sentencing.5 sen- a death Bacon had received fact—-that 484, n. 4. This ante at juiy death].” been hypothesizes that majority 5. The jury would have made prior assumes death known of Bacon's would have complicated inferences about sentence, highlight- lawyer numerous had not even if his reasons, procedure Carolina North criminal hypothesis, for several ed it. This —infer- that, First, with the trial court’s majority ences consistent shaky footing. rests on instructions, improper have been would necessarily have that the asserts Second, even if any make in instance. proceeding a second [] realized that "the lay juiy had indeed members have some hearing that would and one endeavor, they improper engaged in such an unnecessary [had first sentence claim should be remanded for an evidentia- problems who confessed marital to Bacon ry hearing and in light reconsideration sought and help prоblems— his with those objective standards endorsed in would have been helpful mem- (Terry), supra. Williams how, bers in helping them understand

among things, other Bacon could have manipulated by Clark —also a woman 2. who had confessed marital problems to Second, Bacon maintains that his resen- Bacon9 sought help. and his tencing counsel failing was ineffective in properly investigate and submit evidence Bacon maintains that his counsel at his about family history Bacon’s and charac- resentencing hearing conducted no re- ter. Bacon avers—in statements that are search to supplement the work in done (1) supported by affidavit Bacon’s preparation for the first sentencing hear- MAR lawyer, who summarizes her conver- Indeed, ing. that, alleges at his psychologist sations with a an affi- resentencing hearing, his counsel simply davit of investigator Bacon’s —that used the same character interviews that family history troubling. is Among other were submitted in his first sentencing things, specify the affidavits numerous thus, hearing; there was no additional evi- allegedly facts that were not submitted dence submitted at his sentencing second during sentencing either proceeding. Tak- turn, hearing. In Bacon argues, prep- ing true, those allegations to be Bacon’s aration for his sentencing first hearing was rarely father was around when Bacon was deeply flawed. Among other Ba- things, young,6 and finally when his father began con asserts that when his lawyer pre- participate in family, Bacon’s proved paring for his first hearing, the to be an alcoholic. Bacon’s father also lawyer only cursory conducted interviews engaged affairs, numerous adulterous with witnesses who were going to attest to although very Bacon was still young, good addition, Bacon’s character. In dur- sought his mother his advice on the fami- interviews, each perfunctory of these ly’s problems, including his father’s adul- lawyer Bacon’s was accompanied by the tery and other subjects.7 sensitive As a is, attorney. State’s That during result, Bacon signs showed of stress at a trip to Bacon’s hometown to interview wit- young age, including bed-wetting until the nesses, lawyer Bacon’s prosecutor took the age of 14. Bacon also witnessed various along, and all of the incidents which his interviews —which physically father abused his mother.8 Bacon constituted all of contends that the evidence submitted at family history background mother each of the sentencing hearings —a —were may well have drawn very alternative conclusions little age contact with him until the procedural history about the of Bacon's case. nine. however, importantly, Most majority's hy- Among things, 7. other Bacon’s mother en- pothesis fails to realize one crucial fact: the couraged eavesdrop him to on his father's

potential prejudice jurors of one or more ar- phone her-plan calls informed Bacon of riving through conjecture surmise and — —at investigate his father’s adulterous activities. regarding an uncertain conclusion Bacon’s pales comparison earlier fate to the actual occasion, example, 8. For on one when Ba- surely harm that juror’s accrued when each father, con's mother confronted his Bacon’s pointedly attention prior drawn to the father driveway, drag- drove his car down the death sentence. ging Bacon's mother behind. explains 6.One affidavit was, Robert Bacon’s 9. example, aware of numer- eight-years father first saw him when he was ous incidents between Glenniе and Bonnie Further, Clark, old. J.A. 508. the affidavit claims "including a time when he smashed that because Bacon's father was in the mili- against her head a cabinet and held a knife to abroad, tary assigned and often Bacon had her throat." J.A. presented at resen- un- character evidence fashion. When this in this conducted hearing. See ante at 482. tencing witnesses is interviewing manner of usual addi- to conduct the failure coupled with sum, I that the record on believe for the preparation investigation tional any sparse to draw simply too issue Bacon claims hearing, lawyers conclusions on whether fell below lawyer’s performance his Indeed, the district were ineffective. in Strickland. provided standards support in of its not cite to the record does short, lawyer conclusions, incomplete ex- that Bacon’s and the counters The State record, 658-90, sentencing do Bacon’s from the see J.A. cerpts both of presented —at sixteen friends district court’s conclu- testimony of not hearings substantiate —the members, family history of whom testi- evidence family each sions. The new and and closely paral- character relies good upon which Bacon now fied to his otherwise Clark, relationship with and Bacon lels Bacon’s dependability. light submit- in the most (summarizing allegations evidence take the we at 549-50 Thus, the State must at this ted); at 480. to Bacon—as we also ante favorable see contends, history lawyers’ evidence family stage has established his the new —he stage charac- of this penalty in the performance cumulative would have been a crucial char- during the sentenc- was deficient on capital submitted case ter evidence this “culmulative” Based on acter issuе. ing hearings. Ba- dismissed district court

argument, the 3. claim, “A review of the concluding: con’s ample evidence admitted shows record Third, that his counsel Bacon claims concerning peti- hearing of Ba- failing to submit evidence erred background and and tioner’s childhood There is no prison. to adaptability con’s allegedly abu- relationship with his how his relating to this in the record evidence relationship.” J.A. his father sive affected claim, summarily as it has been inasmuch 41. at both the hearing dismissed without court. MAR the district level majority or agree with the I cannot obviously majority has concluded a The There is on this issue. district court relating to evidence the failure to submit the charac- between substantive difference itself, never, in factor will mitigating submitted at both ter evidence counsel; assistance history constitute ineffective family evi- and the new hearings cir- I, however, mitigating This cannot. Bacon now relies. upon which dence by several has been endorsed support cumstance history family evidence new Carolina, 476 courts, Skipper v. South history see family that Bacon’s proposition L.Ed.2d sur- U.S. mirrors the circumstances uniquely (1986); Washington, 106 F.3d Hall v. now for which Bacon rounding the crime (7th Cir.1997), accorded it must be In both instances penalty: the death faces mitigating fac- independent (in respect as an relationship family and his vein, petition asserts Bacon’s subjected tor. Clark), apparently woman adapta- of his evidence husband; that considerable Bacon served by her to abuse existed, including evidence woman, bility prison Bacon was a confidant to the disciplinary significant had no that Bacon steps he otherwise to take manipulated 1987 to incarcerated from infractions while This evidence not have taken. might prove If assertions February these general from the distinguishable plainly true, then, on the other depending child- be about Bacon’s evidence character circumstances, to submit the failure sentencing hear- at both hood submitted per- ineffective constitute event, family evidence would the new any and in ings, sense. While in the Strickland formance be char- certainly cannot history evidence circum- failure to submit general “cumulative” of the acterized as not, alone, might standing Among stance consti- things, jury unanimously other (1) trial, new tute basis for a we should be determined that: signifi- Bacon had no claim, (2) in a position particu- history prior to review this cant activity; criminal larly in the context of the other two Sixth acted under the domination of (3) Clark; Again, Amendment claims.10 the record history had no of violent (4) behavior; “character, habits, must be developed order to do so. mentality, propensities and activities ... B. unlikely indicate that he is to commit an- (5) crime”; That brings us to the other violent prejudice prong Bacon’s criminal Strickland. under I will conduct was the linger on this result of circumstances recur; unlikely element because I Strick- believe that the the initial idea for (7) Clark’s; land standard is the plan satisfied here. In other Clark was con- words, victed of the Bacon has demonstrated a reason- same crime and had received that, sentence; (8) probability able but a life for counsel’s un- Bacon had shown re- (9) morse; errors, professional him, and pro- “family the result of the Bacon’s loved ceeding has would have been continued to visit him different. while he has — (Terry), Williams at-, incarcerated, U.S. and will continue to do Strickland, (quoting S.Ct. at 1511-12 so he is sentenced to life imрrisonment.” 2052). at J.A. U.S. 534-35.

In Significantly, moreover, terms of aggravating circumstances the resentenc- supporting imposition rejected the ing jury the death the mitigating factor that penalty, resentencing jury the only background, life, found “his educational home present: sobriety one such circumstance to be and value.” mitigating that II, “this murder was committed for pecuniary S.E.2d 549. This fact impor- is ante gain.” Moreover, tant because if the underlying facts Ba- single aggravating circumstance claim could be con’s were true and had been sub- characterized as a jury, “weak” one under mitted to the highly probable is North jury Carolina law: of the that the fourteen re- also would have found this ported prior mitigating decisions issued factor in to Bacon’s Bacon’s favor. appeal involving only aggravating cir- mitigating ‍​‌‌​​‌​​‌‌​​‌​‌​​‌​‌‌‌​​‌‌​​‌​​‌‌‌‌‌​‌‌​‌​‌‌​‌​‌‍When these nine factors are “pecuniary gain,” jury cumstance of compared to the single aggravating cir- impose them, declined to death twelve of cumstance, it becomes that clear the three Supreme and the Court of North Carolina alleged Sixth Amendment violations-—ei- held penalty the death disproportion- be or, collectively ther in the instance of the ate in the two. other revelation, prior death sentence individual- words, at 565-66. In other at the time ly have affected the outcome of Ba- —could resentencing hearing, Bacon’s his was the Indeed, con’s resentencing. only reported case which the death pen- that, Court of North Carolina determined alty imposed had been single based on the context, in this failure to submit the miti- pecuniary gain. factor of gating factor that Bacon aided in ap-

On the other equation, prehension side of the co-conspirator of his required a resentencing jury myriad found mitigating sentencing new hearing. Although that present factors to be in Bacon’s place case. decision took with respect to Bacon’s contrast, majority 10. The prison. undertakes to Ba- exonerate months in In stark the re- (1) lawyers by pointing con's sentencing jury out that the first years had almost five of Ba- factor, sentencing jury rejected mitigating prison experience con's to consider. Particu- larly light thus counsel's decision not to raise the of the existence of additional factors, subject resentencing jury before the mitigating permitted was rea- Bacon should be important, present sonable. See ante at however, n. 3. It is evidence this failure on the part that the first lawyers had before it evi- of his constituted or contributed dence of adaptability after part. four to ineffective assistance on their III. rea- hearing, the court’s first compelling: there is soning legal realm of delving into the We are Bacon received assert that fiction when we proper to submit Failing with procedure of fair full measure a “risk great too created circumstance assis- claims of ineffective respect to these imposed will be penalty that the death MAR court tance counsel. call for a less may factors which spite of first invok- them on two bases: dismissed be- choice is penalty. When severe procedural a rule of default death, unac- risk is life and tween regularly established nor firmly neither the com- incompatible ceptable measure, followed, then, dismiss- good Fourteenth Eighth mands of no hear- on the merits with ing the claims Ohio, 438 Lockett Amendments.” fact, state MAR explanation. ing or L.Ed.2d addrеssing Bacon’s claims opinion court’s that it is diffi- perfunctory is so terse reviewing court for the impossible It is it even ad- whether cult to determine the extent conclusively determine of some the merits claims. dressed defendant; suffered prejudice lack of compounded the have now We however, shown defendant has affirming the dismissal procedure fair that had possibility a reasonable there is claims, with no evi- again of these three been sub- circumstance mitigating this permit we dentiary hearing. Before result jury, different mitted to life, we take North Carolina at the sentenc- reached have been would in a to ascertain position be should 15A-1443(a) N.C.G.S. ing hearing. a case such arguments. of these merits (1988). hangs in the bal- a life this —where ; n { than ever that important more ‡ ance—it is s{j ijs }¡: sfi done, justice but be justice phase of sentencing in the For error be done. be seen to also is trial, sentence the death defendant’s dissent. I therefore remanded the cause vacated and Court, County, for a Onslow Superior sentencing hearing.

new Bacon, S.E.2d 326 N.C.

State v.

327, 336 case—with Thus, MOORE, context this Patrick Michael myriad mitigat- Petitioner-Appellant, factor and aggravating one of North factors —the prejudice the Strickland Carolina found Director, De- JOHNSON, Texas Gary L. failure to by the satisfied factor to be Justice, Institu- partment of Criminal one first submit Division, Respondent-Appellee. tional in the aiding factor: additional co-conspirator. With of a apprehension No. 99-50927. that these I am convinced background, Appeals, Court of United States claims, collectively three Sixth Amendment Fifth Circuit. revela- penalty the case of death or—in individually, allege facts sufficient tion— Aug. in the Strickland prejudice demonstrate reason, I remand For this sense. hearing proper, fair case issues.

these

Case Details

Case Name: Bacon v. Lee

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Sep 6, 2000

Citation: 225 F.3d 470

Docket Number: 99-21, 99-23

Court Abbreviation: 4th Cir.