Lead Opinion
Dismissed by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILLIAMS joined. Judge DIANA GRIBBON MOTZ wrote an opinion concurring in the judgment.
OPINION
A North Carolina jury convicted Ernest Paul McCarver of first-degree murder and robbery with a dangerous weapon, and McCarver was sentenced to death and forty years imprisonment, respectively, for those convictions. After appealing his convictions in state court on direct review and in state habeas proceedings, McCarver filed a petition for writ of habeas corpus in federal district court. See 28 U.S.C. § 2254. The district court dismissed MeCarver’s petition, and he now appeals that dismissal. Because we conclude that McCarver has failed to make a substantial showing of the denial of a constitutional right, we deny his application for a certificate of appealability and dismiss his petition for writ of habeas corpus.
I.
On January 2,1987, Ernest Paul McCar-ver stabbed Woodrow F. Hartley to death. According to the North Carolina Supreme Court:
[McCarver] and [Jimmy] Rape entered through the rear entrance of the K & W Cafeteria shortly after Hartley arrived at 5:00 a.m. [McCarver] walked up to Hartley and talked to him for a few minutes. Rape grabbed Hartley from behind in a headlock and attempted to strangle him. Rape released Hartley, who was then grabbed by [McCarver] in a headlock. When [McCarver] let him go, Hartley fell to the ground. [McCar-ver] took a knife from his pants pocket and stuck it into Hartley’s chest several times. Hartley died within minutes.
Gene Blovsky, an employee of the cafeteria, observed [MeCarver’s] automobile parked near the back door of the cafeteria. He saw [McCarver] emerge from behind a wall; [McCarver] was carrying a knife, which he attempted to hide in his right hand. Next, Blovsky saw Hartley lying on the floor in the hallway with a spot of blood on his wrist. Blovsky saw another man near Hartley, realized what had happened, became frightened, and ran out the door.
.... [After leaving the scene and][b]efore going to their assigned job site, [McCarver] and Rape pawned a 1902 silver dollar, which had been taken from the victim, for seven dollars at a Monroe pawn shop. [McCarver] and Rape were arrested by Monroe police at their assigned job site.
State v. McCarver,
McCarver was indicted in North Carolina for murder and robbery with a dangerous weapon. He was convicted of first-degree murder and robbery with a dangerous weapon in the April 18, 1988 Criminal Session of Superior Court, Cabarrus County. He was sentenced to death for the murder conviction and to forty years imprisonment for the robbery conviction. On appeal, the North Carolina Supreme Court ordered a new trial on both charges. See State v. McCarver,
A second trial was held during the September 8, 1992 Special Criminal Session of Superior Court, Cabarrus County, and a jury again convicted McCarver of first-degree murder and robbery with a danger
Before the first trial, McCarver’s appointed counsel requested a competency examination for McCarver at Dorothea Dix Hospital (“Dix”). During Dr. Tanas’ January 1987 examination of McCarver, McCarver completed fill-in-the-blank sentences as follows:
I like to kill.
The happiest time was when I killed that man.
At bedtime I dream about killing.
J.A 364 (Report of Dr. Tanas). A second doctor at Dix, Dr. Lara, also evaluated McCarver and incorporated McCarver’s fill-in-the-blank answers into her report. J.A. 367 (Report of Dr. Lara). The reports were forwarded to the trial court, to defense counsel, and to the district attorney. J.A. 365, 371. Both doctors concluded that McCarver was competent to stand trial, and no competency hearing was held.
In the first trial, defense counsel hired Dr. Parasi to testify as an expert on McCarver’s behalf. Trial counsel gave both Dix reports to Dr. Parasi for the doctor’s evaluation of McCarver, and Dr. Parasi incorporated them into Ms evaluation.
In the second trial, defense counsel hired another expert, Dr. Sultan, a clinical forensic psychologist, to evaluate McCar-ver and to testify on her evaluation. Defense counsel provided her with copies of the Dix reports, as well as Dr. Parasi’s report, which reports she used to evaluate McCarver. Dr. Sultan testified that McCarver was suffering from borderline intellectual functioning, depression, substance abuse disorder, personality disorder, and various other disorders. Defense counsel asked Dr. Sultan about the Dix fill-in-the-blank answers on direct examination, J.A. 65, and the district attorney asked about those same fill-in-the-blank responses on cross-examination, J.A. 150.
During McCarver’s capital sentencing proceeding, the State submitted three aggravating circumstances to the jury: (1) that the murder was committed to avoid lawful arrest; (2) that the murder was committed while the defendant was engaged in the commission of a robbery with a dangerous weapon; and (3) that the murder was especially heinous, atrocious, or cruel. The jury found the first two aggravating circumstances to be present in McCarver’s case. J.A. 307-08.
In the same proceeding, McCarver submitted seventeen mitigating circumstances to the sentencing jury. The jury found fourteen of those circumstances to be present. The jury did not find that McCarver had a history of alcohol or substance abuse which began at an early age as a consequence of emotional and sexual abuse, that McCarver expressed remorse for his actions, or that there were other unspecified mitigating circumstances. J.A. 309-12.
At the conclusion of the second trial, the jury again returned a verdict of death for the murder conviction and of forty years imprisonment for the robbery conviction.
McCarver appealed his convictions from the second trial. On September 8, 1995, the North Carolina Supreme Court affirmed McCarver’s death sentence. State v. McCarver,
On October 22, 1996, McCarver filed a motion for appropriate relief (“MAR”) in North Carolina Superior Court. The court granted the State’s motion for summary denial and denied McCarver’s motion for appropriate relief. J.A. 492 (North Carolina Superior Court opimon). The Supreme Court of North Carolina denied McCarver’s petition for certiorari to review the denial of his motion for appropriate relief. J.A. 590 (North Carolina Supreme Court order).
On September 22, 1998, McCarver filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in federal district court. A federal magistrate judge recommended denying the petition, J.A. 691 (report and recommendation), and the district
II.
McCarver’s sole argument on appeal is that his trial counsel rendered ineffective аssistance in failing to take appropriate steps to prevent the jury from learning of McCarver’s responses in the Dix fill-in-the-blank sentences.
The district court held that McCarver’s ineffective assistance of counsel claim was procedurally barred under North Carolina law and, alternatively, that the claim lacked merit. We are satisfied that McCarver’s ineffective assistance of counsel claim was procedurally barred. But, in any event, we proceed to the merits, and we, too, are confident that there is no merit to McCarver’s ineffective assistance claim.
A.
Federal habeas review of a state prisoner’s claims that are procedurally defaulted under independent and adequate state procedural rules is barred unless the prisoner can show cause for the default and demonstrate actual prejudice as a result of the alleged violation of federal law, or prove that failure to consider the claims will result in a fundamental miscarriage of justice.
The North Carolina Superior Court, in dismissing McCarver’s motion for appropriate relief, rejected his ineffective assistance of counsel claim as procedurally barred under N.C.G.S. § 15A-1419(a)(3). Section 15A-1419(a)(3) provides for denial of appropriate relief when “[u]pon a previous appeal the defendant was in a position
McCarver does not deny that he failed to raise his ineffective assistance claim on direct appeal. He also does not deny that section 15A-1419(a)(3) is generally an independent and adequate state procedural bar. See Appellant’s Br. at 44 (“In Williams v. French, ... this Court stated that N.C.G.S. § 15A-1419(a)(3), in general, is an independent and adequate state ground. Mr. McCarver does not disagree with this holding.”); see also Williams v. French,
1.
First, as to McCarver’s claim that the state procedural bar is not consistently and regularly applied to ineffective assistance of counsel claims, we reject McCarver’s attempt to treat ineffective assistance claims as categorically different from other kinds of claims that can be barred under section 15A-1419(a)(3). McCarver argues that because ineffective assistance claims are ordinarily more appropriately raised in collateral proceedings, these claims are not consistently procedurally barred in collateral proceedings in North Carolina. Although McCarver is undoubtedly correct that many ineffective assistance claims could not be brought on direct appeal, section 15A-1419 is not a general rule that any claim not brought on direct appeal is forfeited on state collateral review. Instead, the rule requires North Carolina courts to determine whether the particular claim at issue could have been brought on direct review.
Here, the North Carolina Superior Court did find that McCarver could have raised his ineffective assistance claim on direct review. And it was because of this specific finding that the Superior Court held that McCarver’s particular ineffective assistance of counsel claims were procedurally barred. The question we must ask, then, is whether the particular procedural bar is applied consistently to cases that are ‘procedurally analogous — here, cases in which the particular claim raised could have been raised previously but was not. It would be incorrect to ask, as McCarver would, whether ineffective assistance claims that cannot be brought on direct review are barred under section 15A-1419, because by the very terms of section 15A-1419(a)(3) — requiring that the claim could have previously been brought — such claims would not be procedurally barred.
In this case, for McCarver to make a colorable showing that section 15A-1419(a)(3) is not consistently and regularly applied to ineffective assistance claims, he would need to cite a non-negligible number of cases in which ineffective assistance claims could have been brought on direct review but were not, and in which the collateral review court nonetheless failed to bar the claim under section 15A-1419(a)(3) because the claim was an ineffective assistance claim. To the contrary, North Carolina courts have held that ineffective assistance claims that are not brought on direct review can be procedurally defaulted under section 15A-1419(a)(3). See, e.g., Williams v. French,
McCarver’s attempt to find support in our decision in Smith v. Dixon,
McCarver argues in the alternative that even if we find North Carolina’s procedural default rule to be applicable to his ineffective assistance of counsel claim, he can demonstrate cause to excuse his default in not raising the claim on direct review and actual prejudice resulting from the default. To demonstrate cause, McCarver needs to make “a showing that the factual or legal basis for a claim was not reasonably available to counsel.”
McCarver argues not merely that the factual basis for his ineffective assistance of counsel claim was not reasonably available to appellate counsel, but that “it would have been literally impossible ” for his appellate counsel to have raisеd the claim on direct appeal because the record was not sufficient to support a reasonable claim of ineffective assistance. Appellant’s Br. at 46. Specifically, McCarver posits that he could only have made his ineffective assistance claim if he had had the opportunity to supplement the record through an evidentiary hearing. McCar-ver alleges that, at such an evidentiary hearing, he could have presented the testimony of trial counsel who could have explained why counsel failed to prevent the information from entering the record, the testimony of a criminal law expert who could have explained why counsel was ineffective, and the testimony of a mental health professional who could have explained that the Dix examination fill-in-the-blank questions were beyond the scope of a normal competency evaluation. Although there is no question that with an evidentiary hearing McCarver may have gathered or created more evidence, we are satisfied that the North Carolina Superior Court did not err in concluding that McCarver’s appellate counsel could have brought McCarver’s ineffective assistance of counsel claim on direct appeal in North Carolina state court.
McCarver’s ineffective assistance claim, in essence, is that counsel should have prevented the damaging Dix report from being entered into the trial record through all available means. As noted, the North Carolina Superior Court found that McCarver could have raised this claim on direct review. In reviewing the North Carolina court’s findings that support its application of the state procedural bar, we accord the state’s findings a presumption of correctness, see Williams,
Finally, even if McCarver could demonstrate cause, we reject his argument that he was actually prejudiced by the failure of trial counsel to prevent the Dix fill-in-the-blank responses from being entered into the record. To establish prejudice, McCarver must show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady,
Even assuming that counsel would have been successful if he had tried to keep the Dix reports out of the record, McCarver’s actual prejudice theory is simply too tenuous to withstand scrutiny. First, we are confident that trial counsel’s provision of the Dix reports to Dr. Sultan served to add to the expert’s credibility with the jury. Dr. Sultan’s use of the prior reports added to the substantive and temporal depth of her evaluation of McCarver. And, in particular, she was actually able to use positively McCarver’s answers on the Dix fill-in-the-blank to convey more fully to the jury her psychological profile of McCarver. Dr. Sultan testified that McCarver was misled by his cell mates who told him to provide crazy answers so that he would seem incompetent. J.A. 67-68. She also emphasized that after being reminded that he needed tо be truthful, he finished the sentences differently on a subsequent fill-in-the-blank test. J.A. 70 (e.g., “The best time I ever had was when I was with Tina.”). Therefore, because Dr. Sultan had access to the Dix reports, including the specific fill-in-the-blank responses, the jury was provided with sufficient testimony by the defense expert not merely to discount McCaryer’s responses as not being sincere reflections of his thoughts about the murder, but also to believe that Dr. Sultan had a deep, credible understanding of McCarver as a troubled individual who could easily be misled by others.
Second, we recognize that Dr. Sultan’s credibility was invaluable not only in ameliorating any prejudicial impact of the Dix responses, but, more importantly, in helping McCarver prove the existence of many of the fourteen mitigating factors that the jury did find. That is, because Dr. Sultan was able to provide the jury with a detailed psychological picture of McCarver, by incorporating evaluations and reports made years before, the jury had reason to believe that Dr. Sultan’s testimony related to all of McCarver’s psychological problems was credible. And, Dr. Sultan’s testimony addressed at least six of the seventeen mitigating factors the jury did find, including McCarver’s capacity to appreciate his behavior, his level of intellectual functioning, and his suffering from depression. Therefore, it is reasonable to as
Third, in addition to not finding remorse, the jury also failed to find two other mitigating circumstances to be present in McCarver’s case. The jury, even having found only two aggravating circumstances and fourteen mitigating circumstances, still recommended that MeCarver be sentenced to death. Given that the jury found only two aggravating circumstances to оutweigh the fourteen mitigating circumstances, we are unpersuaded that had the jury found the presence of a fifteenth mitigating circumstance, remorse, it would be reasonable to believe that the jury would not have imposed the death penalty.
Even though we appreciate that it is not necessarily the case, it is at least relevant that the jury may very well have found through the testimony of various witnesses that MeCarver did express remorse, but accorded it no mitigating value anyway. This is because the mitigating circumstance question posed to the jury — “Consider whether Ernest Paul MeCarver has expressed remorse for his actions and whether you deem this to have mitigating value.” J.A. 311 (emphasis added)' — is actually a two-part question. It asks first, whether the jury believed that MeCarver expressed remorse for his actions, and second, whether the jury would then accord that remorse any mitigating value. The jury answered the two-part question with a single “no.” Therefore, it could well be the case that the jury did find that MeCar-ver had expressed remorse, answering the first question, but that it accorded that remorse no mitigating value in answering the second question. MeCarver has provided us with no reason to believe that a reasonable jury would accord the statements MeCarver allegedly made to various witnesses with any mitigating value at all, despite the statements’ apparent expression of remorse.
For the reasons stated above, we conclude that there is no categorical, ineffective assistance of counsel claim exception to our previous holding that section 15A-1419(a)(3) is an independent and adequate state procedural bar, and, therefore, that McCarver’s claim was proeedurally defaulted in state court, pursuant to an independent and adequate state procedural bar. Additionally, we are satisfied that MeCarver has demonstrated neither cause to excuse his procedural default nor actual prejudice resulting from the default.
B.
Although we conclude that McCarver’s ineffective assistance of counsel claim is proeedurally barred, we nevertheless consider the merits of that claim. As discussed, MeCarver argues that trial counsel was ineffective in two respects: his failure to file a motion in limine to ensure that the Dix repоrts could not be introduced, and his decision to give the Dix reports to McCarver’s own expert, Dr. Sultan, thereby ensuring that the district attorney would be permitted to ask about the reports on cross-examination. For the reasons that follow, we unhesitatingly conclude that McCarver’s trial counsel’s performance was not constitutionally ineffective.
Under Strickland v. Washington,
We address separately each of McCar-ver’s arguments on the merits, first, his claim that trial counsel errеd by giving the Dix reports to Dr. Sultan; second, his argument that trial counsel should have filed a motion in limine to prevent the Dix reports from becoming part of the record; and, finally, his contention that trial counsel’s alleged ineffectiveness actually prejudiced him.
1.
In evaluating trial counsel’s performance, we must be highly deferential to counsel’s strategic decisions and not allow hindsight to influence our assessment of counsel’s performance. See Strickland,
Trial counsel’s decision to provide an expert with all available truthful information is not only imminently reasonable, but we would expect that an expert psychologist witness would always be provided with all available information on a patient. Particularly in a case in which the expert witness is nоt a long standing treating psychologist of the patient, we assume that it would be in the defendant’s best interest to have that expert obtain as much data and as many prior evaluations of that defendant, from as many sources as possible, as are available, so that the expert can form a full and credible picture of the defendant’s psychological make-up. Because of our understanding that generally it is in the best interests of the client for counsel to provide available background psychological information to an expert psychologist witness, we are not at all surprised that McCarver is unable to cite any
That it is a sound and reasonable trial strategy to provide all available information to an expert psychologist witness is confirmed by the facts of this case. By making the reports available to Dr. Sultan, trial counsel ensured not only that Dr. Sultan’s evaluation would be as complete and as comprehensive as possible, J.A. 30-31 (Dr. Sultan testified: “It’s important when I’m trying to formulate an opinion about somebody for me to know what else has been said about that person. My opinion is really only as reliable as it is contrasted or compared with the overall impressions, the cumulative impressions that have been gathered by other professionals in the field over time. And so in part what I’m doing is double checking my notion of a person.”), but also that Dr. Sultan was able to incorporate the otherwise potentially damaging statements into her assessment of McCarver, ameliorating their impact while at the same time bolstering her own credibility as a defense witness, see supra Part II.A.2. Therefore, we conclude that McCarver’s trial counsel’s decision to give the reports to Dr. Sultan was, at the very least, not an objectively unreasonable trial strategy and that such did not constitute constitutionally ineffective assistance of counsel.
2.
Because we are satisfied that trial counsel’s decision to turn over the Dix reports to the defense expert was a reasonable trial strategy, McCarver’s first allegation of error — that counsel should have filed a motion in limine to keep thе reports out of the trial record — is without merit. That is, after counsel reasonably decided to give the reports to Dr. Sultan and thereby expose the reports to cross-examination,
However, even if we were to conclude, as McCarver argues, that trial counsel should have attempted to exclude the Dix reports, the North Carolina Superior Court held that McCarver did “not demonstrate[ ] the existence of a solid foundation upon which .trial counsel could have demanded the exclusion of the evidence concerning the two reports.” J.A. 520.
McCarver argues primarily that there are two grounds on which trial counsel could have successfully moved the trial court to exclude the Dix reports from the record. First, he argues that under North Carolina law, the Dix reports were confidential and could not be made part of the record. Second, McCarver argues, in reliance upon Powell v. Texas, that the Dix reports could have been excluded from the record becausе the examinations performed at Dix went beyond the scope of a normal competency evaluation. We reject both claims.
(a)
McCarver cites N.C.G.S. § 15A-1002(d) for the proposition that the Dix
Any report made to the court pursuant to this section shall be forwarded to the clerk of the superior court in a sealed envelope addressed to the attention of a presiding judge.... A copy of the full report shall be forwarded to defense counsel, ... if the question of defendant’s capacity to proceed is raised at any time, a copy of the full report must be forwarded to the district attorney. Until such report becomes a public record, the full report to the court shall be kept under such conditions as are directed by the court, and its contents shall not be revealed except as directed by the court.
(emphasis added). McCarver argues that, because no hearing was ever held on McCarver’s competency, his capacity to proceed was not raised, and therefore copies of the full report should not have been sent to the district attorney. McCarver suggests therefore that trial counsel could have made a motion to exclude the reports from the record on the ground that the reports had been sent to the district attorney unlawfully.
However, section 15A-1002(d) is not an absolute confidentiality rule. To the contrary, the court is given the discretion to reveal the contents of the reports (“the full report to the court shall be kept under such conditions as are directed by the court, and its contents shall not be revealed except as directed by the court”), and the North Carolina Superior Court found that “the [Dr. Lara] report demonstrates that disclosure of the information in the reports to the district attorney was authorized by court order.” J.A. 513. Although there is no such court order in the record before us, the Dix report produced by Dr. Lara, which includes the relevant fill-in-the-blank responses, does indicate that such an order was made, J.A. 367 (“Court order instructed forеnsic report to be delivered to the patient’s attorneys, District Attorney’s Office, and to the judge.”), and we therefore do not find that the superior court’s factual conclusion was unreasonable. Accordingly, we do not find that the North Carolina court’s conclusion that the prosecution lawfully possessed the Dix reports prior to trial was in error, and McCarver’s counsel thus was not constitutionally ineffective for failing to make a motion to exclude the reports on the ground that the prosecution improperly possessed the reports or that they remained confidential.
(b)
MeCarver’s reliance on Powell v. Texas,
However, McCarver’s ease is distinguishable from Powell in at least three ways. First, defense counsel, not the State, as in Powell, ordered the tests and there is no evidence that counsel was unaware of the kind of testing that would
Third, in Poivell, the defendant was examined, at the State’s request and by order of the court, particularly for future dangerousness, in addition to competency. We are unconvinced that in McCarver’s case mere fill-in-the-blank sentences lie outside the scope of what a competency evaluation would entail. What McCarver fails to recognize in treating McCarver’s responses to the fill-in-the-blank sentences as obviously pertaining to the mitigating factor of remorse and not to competence is that the fill-in-the-blank sentences, before McCarver responded, were merely innocuous half sentences that could have as easily been left blank by McCarver or answered in the way he eventually did — “My favorite time was tvhen I was with Tina.” McCar-ver does not allege that the doctors asked him whether he ever dreams about killing, or any similar question that would necessarily yield responses that might be relevant to mitigating or aggravating factors, and we find no such questions in the record.
For the reasons above, then, we conclude that the North Carolina Superior Court’s finding, that McCarver did “not demonstrate[ ] the existence of a solid foundation upon which trial counsel could have demanded the exclusion of the evidence concerning the two reports,” was not unreasonable. And, therefore, given that the district attorney already possessed the reports and could ask Dr. Sultan about them anyway, trial counsel’s decision to give the Dix reports to Dr. Sultan was entirely reasonable.
3.
We are satisfied, for the reasons stated in Part A.2., supra, that even if McCarver could demonstrate that counsel’s performance was constitutionally ineffective, he has not demonstrated actual prejudice resulting from counsel’s decision to give the Dix reports to the expert defense witness.
Accordingly, for the reasons stated, even if McCarver wеre able to bring his ineffective assistance of counsel claim in this court, despite its procedural default in state proceedings, we conclude that McCarver has demonstrated neither that trial counsel’s performance fell below an objective standard of reasonableness nor that actual prejudice resulted from trial counsel’s alleged constitutional ineffectiveness.
III.
McCarver also argues that he should have been afforded an evidentiary hearing by the district court on his ineffective assistance of counsel claim. The state court held no evidentiary hearing on his ineffective assistance claim, and the federal district court likewise rejected McCarver’s request for such a hearing. We conclude that the district court did not err in declining to conduct an evidentiary hearing on McCarver’s claim. Although McCarver may be correct that an evidentiary hearing would not be prohibited under 28 U.S.C. § 2254(e)(2), we do not believe an evidentiary hearing was required in his case, see Cardwell v. Greene,
The district court is permitted to hold an evidentiary hearing only when the petitioner “alleges additional facts that, if true, would entitle him to relief.” Card-well,
First, regardless whether trial counsel was fully informed when he chose to provide the Dix reports to Dr. Sultan, his choice was a strategy — to inform fully his expert witness by providing truthful, relevant information to her. Second, whether Dr. Sultan could have evaluated McCarver without the reports is irrelevant to the inquiry whether the reports did aid her in making the evaluation, as she has already testified thеy did, and the reports did make her more credible than if she had merely testified based on her own temporally limited encounters with McCarver. Third, McCarver has not explicated how the testimony of a “legal expert” assessing trial counsel’s performance would aid a federal court in this particular case in making the legal determination whether trial counsel was constitutionally ineffective. If a habeas petitioner were required only to produce a “legal expert” to discuss ineffectiveness in order to obtain an evi-dentiary hearing, presumably all habeas petitioners would be entitled to such a hearing. Without a compelling reason why a criminal law expert on ineffectiveness would aid the court’s inquiry in McCarver’s case, we do not believe such an alleged “fact” warrants the holding of an evidentiary hearing. Finally, with respect to the scope of the competency evaluations, because McCarver’s counsel ordered the evaluations, even if they did go beyond the scope of normal competency examinations, there would be no ground for McCarver’s counsel to have moved to exclude the reports. That is, McCarver’s is not a case in which the prosecution ordered future dangerousness tests to use against him at sentencing.
Additionally, because, as discussed previously, we conclude that McCarver has not demonstrated actual prejudice resulting from any alleged constitutional errors, we also conclude that any facts McCarver could prove to bolster his ineffective assistance of counsel claim if he were afforded an evidentiary hearing, would not entitle him to relief. Therefore, the district court did not err in refusing to grant McCarver such a hearing.
CONCLUSION
For the foregoing reasons, we conclude that McCarver has failed to make a substantial showing of the violation of a constitutional right. His application for a certificate of appealability is denied and his petition for writ of habeas corpus is dismissed.
DISMISSED
Notes
. Although McCarver raises only his ineffective assistance of counsel claim in his briefs, and focused only on this one claim in oral argument as well, he attempts to "preserve” other issues he raised in the section 2254 petition he filed with the district court. See Appellant's Br. at 5 n.l ("Mr. McCarver wishes to preserve all the issues raised in his petition for habeas corpus found at Joint Appendix pages 591 through 606, so that he may bring forth these issues at a later date if there are changes in the law with regard to these issues.”). The magistrate judge's report and recommendation adopted by the district court dismissed a similar attempt by McCarver to "preserve” nonbriefed issues. J.A. 696-97 (report and recommendation). We agree with the district court that McCarver cannot preserve arguments merely by incorporating them by reference in a few sentences in his brief. If McCarver believed any other claims had merit, counsel could have filed a motion to file an expanded brief with this court and briefed additional issues. We therefore conclude that McCarver did waive those claims not briefed before this court.
. Because McCarver filed his federal habeas petition after the effective date of the Antiter-rorism and Effective Death Penalty Act’s ("AEDPA”) enactment, the AEDPA amendments apply to McCarver’s petition. See Mueller v. Angelone,
. McCarver does not argue that failure to consider his claim will result in a fundamental miscarriage of justice, and we do not find that there would be a fundamental miscarriage of justice were we to refuse to consider his claim.
. McCarver also cites two of this court’s unpublished opinions to support his position that the state procedural rule is not regularly and consistently applied to ineffective assistance of counsel claims. In Hooper v. Barnett,
Likewise, in Harris v. French,
. McCarver does not argue before this court that appellate counsel on direct review was ineffective for failing to raise the ineffective assistance of counsel claim on direct review.
. We review the North Carolina Superior Court’s conclusions on the merits of McCar-ver’s ineffective assistance of counsel claim under the AEDPA amendments, as recently interpreted in Williams v. Taylor, - U.S. -,-,
. In concluding that trial counsel was not ineffective in providing damaging but truthful information to an expert witness, we are in accord with Robison v. Johnson,
. It is important to note that McCarver does not suggest that trial counsel erred by having Dr. Sultan testily in the first instance. This is most likely because McCarver realizes, as do we, that counsel had Dr. Sultan testify in order to emphasize McCarver’s hardship and mental deficiencies, and that her testimony addressed at least six of the seventeen mitigating factors, as discussed above.
. N.C.G.S. § 8C-1, Rule 705 addresses the disclosure of facts or data underlying an expert opinion:
The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosurе of the underlying facts or data, unless an adverse party requests otherwise, in which event the expert will be required to disclose such underlying facts or data on direct examination or voir dire before stating the opinion. The expert may in any event be required to disclose the underlying facts or data on cross-examination ....
Under this rule, the district attorney could permissibly have asked about the Dix reports and the fill-in-the-blank responses specifically.
. Notably, McCarver does not cite Powell to support an independent constitutional violation — that the prosecution should not have been permitted to use at the sentencing proceedings the statements made at the competency hearing. Rather, he cites Powell as support for his position that counsel should have known that under the reasoning of Powell, the prosecution would not be permitted to use the Dix reports at the sentencing stage.
. McCarver also cites an unpublished case from this court, Thomas-Bey v. Nuth,
Concurrence Opinion
Circuit Judge, concurring in the judgment:
I concur in the judgment because I agree that, for many of the reasons set forth in the majority opinion, the performance of McCarver’s counsel was not prej-udicially ineffective. See Strickland v. Washington,
I do not agree, however, that McCar-ver’s ineffective assistance claim should be procedurally barred as a result of his failure to raise it on direct appeal. Only
Although the North Carolina cases do speak of certain “exceptions” to the general and well-established practice of raising ineffective assistance claims during post-conviction proceedings, they do not define the category of ineffective assistance claims that can appropriately be heard on direct appeal. See, e.g., State v. Dockery,
The language of § 15A-1419(a)(3), barring post-conviction relief on claims that “the defendant was in a position to adequately raise” on direct appeal, is not sufficient to identify clearly the cases that are excepted from the general practice in North Carolina of hearing ineffective assistance claims at the post-conviction stage. Furthermоre, North Carolina courts have not undertaken to construe this statutory language so as to provide the needed clarity. Is a defendant “in a position to adequately raise” a claim whenever there are facts in the record to support it, or only when the facts as to the claim are undisputed? Must the representation that was assertedly ineffective have taken place pri- or to trial or prior to sentencing? Is a defendant “in a position to adequately raise” an ineffective assistance claim on direct appeal when the defendant is being represented on the appeal by his assertedly ineffective trial counsel? We simply do not know, because the scope of the exception, as well as the scope of the procedural rule that purportedly derives from it, have never been addressed by the North Carolina courts.
The state suggests that the default rule applies to all ineffective claims that “could have been resolved on direct appeal based on matters of record.” See Brief of Appel-lee at 39. Even assuming this language provides sufficient clarity to transform the exception into a procedural rule, which I doubt, it is not language that appears in any North Carolina case cited by the state.
Moreover, even if the North Carolina courts had clearly delineated these “exceptions” so as to articulate a procedural rule, they have not regularly applied § 15A-1419(a)(3) as a bar to ineffective assistance claims. Rather, North Carolina courts have repeatedly stated that ineffective assistance claims are “normally,” State v. Milano,
Our court en banc has similarly observed that, in North Carolina, “allegations of ineffective assistance of counsel generally are properly raised on collateral review.” Smith v. Dixon,
We are bound to defer to state procedural rules when they are clearly drawn and consistently applied. But the vindication of constitutional rights in federal court should not be foreclosed by a state procedural rule that, as a hypothetical matter, might be further clarified such that, in the future, it might be consistently applied. There is, at present, no discernible regularly and consistently applied North Carolina rule barring MeCarver’s ineffective assistance claim.