Lead Opinion
Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judge BUTZNER joined. Judge ERVIN concurred separately.
OPINION
Petitioner-appellant ■ Harvey Green, who has been sentenced to death by the state of North Carolina on two counts of first-degree felony murder, appeals the decision of the district court dismissing his petition habeas corpus. For the reasons that follow, we affirm the judgment of the district court.
I.
The tragic facts of this case, which we need only summarize here, have been fully set forth by the North Carolina Supreme Court in State v. Green,
Pursuant to North Carolina law, a capital sentencing proceeding was conducted at which the jury recommended the death penalty for each murder, and the trial court entered judgment accordingly. On appeal, the North Carolina Supreme Court remanded the case for a hearing to determine whether Green’s death sentences were unconstitutionally tainted by racial discrimination in jury selection in violation of Batson v. Kentucky,
While Green’s sentence was being appealed for the third time, the North Carolina Supreme Court remanded for resentencing in light of the, intervening United States Supreme Court case of McKoy v. North Carolina,
At Green’s second capital sentencing hearing, the jury found three statutory aggravating circumstances: (1) that Green had been previously convicted of a felony involving the use or threat of violence, (2) that the murders of Sheila Bland and Michael Edmondson were for pecuniary gain, and (3) that those murders were part of a course of conduct in which Green committed another crime of violence against another person. Although the jury also found seven mitigating circumstances, it ultimately recommended death sentences for each of the two first-degree felony murders. Judgment, again, was entered accordingly. On appeal, the North Carolina Supreme Court, in a thorough, fifty-eight page opinion, affirmed Green’s death sentences against various assignments of error. State v. Green,
Green then unsuccessfully sought to challenge his sentences through a motion for appropriate relief under North Carolina’s post-conviction relief procedures, and, after that motion was denied, on October 3, 1996, Green filed the instant petition in federal district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed Green’s habeas petition, Green v. French,
II.
Green’s petition for federal habeas relief was filed after the date on which the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214, was signed into law. Accordingly, Green’s claims are governed by the new standards for federal habeas corpus as amended by the AEDPA. See Lindh v. Murphy, — U.S. —, -,
Section 2254 provides that “a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” upon a showing that his custody is in
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claims — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States ...
28 U.S.C. § 2254(d)(1). Amended section 2254(d)(1) therefore places at least three limitations upon the availability of federal habe-as relief: the petitioner must demonstrate that the state court’s adjudication of his federal claim was (1) contrary to or an unreasonable application of (2) clearly established federal law (3) as determined by the Supreme Court of the United States. The proper constructions of these limitations are matters of first impression in this circuit.
A.
As a prerequisite to obtaining habeas relief under amended section 2254(d)(1), a petitioner must demonstrate that the state court’s adverse adjudication of the merits of his federal claim was “contrary to” or an “unreasonable application of’ clearly established law as determined by the Supreme Court.
Correctly defining “contrary to” and “unreasonable application of,” and distinguishing between the two terms for purposes of section 2254(d)(1), at first blush appears relatively simple. Upon reflection, however, it is evident that this appearance is deceptive, and that the intended meaning of these terms is not so clear at all. For, at least in common legal parlance and practice, not only is each of these terms invoked to describe various kinds and degrees of relationship between inferior and supreme court decisions, but, as well (or as a consequence), there is overlap between the phrases.
A lower court’s decision, for example, certainly is said to be “contrary to” supreme court precedent when, through resolution of a question of pure law, that decision reaches a legal conclusion or a result opposite to that reached in a supreme court opinion which addresses the identical question of law. A lower court’s decision is likewise “contrary to” a higher court’s precedent when' that decision correctly identifies the governing legal principle from the precedent but applies that principle to facts that are indistinguishable in any material respect from those on the basis of which the precedent was decided in such a way as to reach a conclusion different from that reached by the higher court. It is also common to characterize a lower court decision as “contrary to” supreme court precedent when that decision applies a precedent in a factual context different from the one in which the precedent was decided and one to which extension of the legal principle of the precedent is indisputably unjustified, or, conversely, when that decision fails to apply a precedent in a different context to which the precedent’s principle clearly does apply.
The phrase “unreasonable application of’ supreme court precedent is similarly invoked to describe various kinds and degrees of relationships between an inferior court decision and a superior court decision. A lower court is said to have unreasonably applied a higher court’s precedent when it extends the legal principle of that precedent to a new context in which the application of that principle is not reasonable, or conversely, as above, when, unreasonably, it fails to extend a principle to a context to which the principle should be extended. But it is also considered to be an “unreasonable application of’ a supreme court precedent when an inferior court applies the correct principle from the higher court’s precedent, but unreasonably applies that principle to the facts before it, assuming the facts are not so different from those that gave rise to the precedent as to constitute an entirely new context, requiring examination anew of the applicability of the principle. (If the facts are sufficiently different from those of the precedent, then the application of the principle to those facts may entail not so much the mere application of law to fact, as customarily understood, but, rather, the application of the legal principle to an entirely new context.).
Recognition of the fact that the phrases “contrary to” and “unreasonable application of’ a higher court’s, precedent have overlapping meanings in common • parlance, however, is only to identify the .interpretive conundrum of the statute. The difficult question is precisely what meaning to accord each term in light of- these overlapping meanings and the overarching canon of construction that each term should be construed so as to accord it a meaning different from, and independent of, the other. Ultimately, we believe that according each term its most natural (even if not its only) meaning, results in an interpretation of the statute most faithful to the plain purpose of the statute.
On these understandings of the terms, a decision is “contrary to” precedent only when, either through a decision of pure law or the application of law to facts indistinguishable in any material way from those on the basis of which the precedent was decided, that decision reaches a legal conclusion or a result opposite to and irreconcilable with that reached in the precedent that addresses the identical issue. In contrast, a decision represents an “unreasonable application of’ precedent only when that decision applies a precedent in a context different from the one in which the precedent was decided and one to which extension of the legal principle of the precedent is not reasonable, when that decision fails to apply the principle of a precedent in a context where such failure is unreasonable, or when that decision recognizes the correct principle from the higher court’s precedent, but unreasonably applies that principle to the facts before it (assuming the facts are insufficiently different from those that gave rise to the precedent as to constitute a new context for consideration of the principle’s applicability).
Defining the terms in this manner, respectively, captures, we believe, the obvious common sense of the statute: If a state court decision is in square conflict with a precedent (supreme court) which is controlling as to law and fact, then the writ of habeas corpus should issue; if no such controlling decision exists, the writ should issue only if the state court’s resolution of a question of pure law rests upon an objectively unreasonable derivation of legal principles from the relevant supreme court precedents, or if its decision rests upon an objectively unreasonable application of established principles to new facts. In other words, habeas relief is authorized only when the state courts have decided the question by interpreting or applying the relevant precedent in a manner that reasonable jurists would all agree is unreasonable. As the Fifth Circuit has explained,
The use of the word “unreasonable” in formulating this restrictive standard of review implicitly denotes that federal courts must respect all reasonable decisions of state courts. Thus, given the statutory language, and in the light of legislative history that unequivocally establishes that Congress meant to enact deferential standards, we hold that an application of law to facts is unreasonable only when it can be said that reasonable jurists considering the question would be of one view that the state .court ruling was incorrect. In other words, we can grant habeas relief only if a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists.
Drinkard v. Johnson,
Like our court, our sister circuits are only beginning to consider the new amendments to section 2254(d)(1) and their application to the various aspects of judicial decisionmaking described above, but the emerging interpretations of these terms are consistent with ours today, even if they are alternatively formulated and yet inchoate. Those circuits that have thus far addressed themselves to the amendments, and to section 2254(d)(1) in particular, clearly agree with us that the category of state court decisions that are “contrary to” supreme court precedent includes those cases in which a state court’s decision of a question of pure law is in irreconcilable conflict with a controlling resolution of that same legal question by the supreme court. Lindh,
Our sister circuits have also clearly held that a state court decision is an “unreasonable application of’ precedent when that decision invokes the correct principle from the precedent, but unreasonably applies that principle to facts similar to (in contrast to indistinguishable from) those of the precedent. See Lindh,
But whether our sister circuits analyze state court decisions involving the extension of a principle to a new context under the “contrary to” clause or the “unreasonable application of’ clause of section 2254(d)(1) appears to be of little, if any, practical significance ultimately, because of the manner in which these courts interpret the second and third limitations in the amendments to section 2254(d)(1) that the state decision must have been in conflict with “clearly established federal law” “as determined by the Supreme Court of the United States.” In order to obtain habeas relief, the petitioner must show that the state court decision conflicted with “clearly established federal law as determined by the Supreme Court.” According to these courts, to make this showing in the context of the extension of a principle to a new context, the petitioner must demonstrate that no reasonable jurist would disagree that, based upon the relevant (even if not directly controlling) Supreme Court’s precedents, the principle should extend (or not extend) to the new context. See Lindh,
B.
The AEDPA also limits habeas relief to those petitioners who can demonstrate that the state court’s adjudication of their federal claims was inconsistent with “clearly established Federal law.” 28 U.S.C. § 2254(d)(1). Petitioner Green urges us to interpret this limitation as essentially codifying the anti-retroactivity doctrine of Teague v. Lane.
C.
The AEDPA also limits the source of clearly established law to that “determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Almost as an afterthought, and apparently for the first time on appeal, Green argues that this limitation unconstitutionally constricts the habeas jurisdiction of the federal courts in two ways, and he urges us to construe this source of law limitation out of the statute in order to save the AEDPA from constitutional infirmities. We find neither of Green’s arguments as to the unconstitutionality of this limitation persuasive.
First, Green contends that, to the extent the AEDPA limits the source of law cognizable on habeas to Supreme Court precedent, it violates the separation of powers by vesting federal courts with jurisdiction to decide disputes and then “dictating the judiciary’s determination of governing law.” Appellant’s Br. at 34 (quoting Lindh,
Green’s second constitutional argument relating to the construction of section 2254(d)(1) relies upon the Suspension Clause. The Suspension Clause, of course, provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. Art. I § 9. We confess to confusion over Green’s abbreviated argument on this score. Apparently, Green’s argument is that any statutory modification of the availability of habeas relief that “sharply limits” a federal court’s power to grant the writ “threatens a violation of the Suspension Clause.” Reply Br. at 17. And so (the argument goes, or would go) because the provision of section 2254(d)(1) which limits the source of law cognizable on habeas review to that established by the Supreme Court would (presumably) amount to a “sharp limitation” upon the scope of the writ, section 2254(d)(1) must be construed to permit lower federal courts sitting in habeas to issue the writ based only upon an inconsistency between their own precedents and a state court’s adjudication of a federal claim. Green does not, however, articulate why the source of law limitation of section 2254(d)(1) violates the Suspension Clause, nor does he cite to any authority defining the contours of the Suspension Clause, or invalidating any federal statute on Suspension Clause grounds.
From our review of the few precedents interpreting the Suspension Clause, we conclude that amended section 2254(d)(1) does not suspend the privilege of the writ, but rather, represents a modest congressional alteration of the standards pursuant to which the writ issues. See Lindh,
This conclusion is confirmed by the history of the writ of habeas corpus, which is far broader in scope today than it was at the time that the Suspension Clause was ratified. As the Supreme Court recently discussed in Felker:
The writ of habeas corpus known to the Framers was quite different from that which exists today. As we explained previously, the first Congress made the writ of habeas corpus available only to prisoners confined under the authority of the United States, not under state authority. See Ex parte Dorr,3 How. 103 ,44 U.S. 103 ,11 L.Ed. 514 (1845). The class of judicial actions reviewable by the writ was more restricted as well. In Ex parte Watkins,3 Pet. 193 ,28 U.S. 193 ,7 L.Ed. 650 (1830), we denied a petition for a writ of habeas corpus from a prisoner “detained in prison by virtue of the judgment of a court, which court possesses general and final jurisdiction in criminal eases.” Id. at 202. Reviewing the English common law which informed American courts’ understanding of the scope of the writ, we held that “[t]he judgment of the circuit court in a criminal case is of itself evidence of its own legality,” and that we could not “usurp that power by the instrumentality of the writ of habeas corpus.” Id. at 207.
It was not until 1867 that Congress made the writ generally available’ in “all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.” And it was not until well into this century that this Court interpreted that provision to allow a final judgment of conviction in a state court to be collaterally attacked on habeas. See, e.g. Waley v. Johnston,316 U.S. 101 ,62 S.Ct. 964 ,86 L.Ed. 1302 (1942); Brown v. Allen,344 U.S. 443 ,73 S.Ct. 397 ,97 L.Ed. 469 (1953).
Felker v. Turpin,
Green’s first constitutional claim is that the trial court denied him due process of law by rejecting his request for an allocution.
On appeal to the North Carolina Supreme Court, Green argued, as he does today, that a trial court deprives a criminal defendant of due process of law when it denies his effectively communicated request to plead for mercy with the jury prior to the imposition of his sentence. In support of this argument, petitioner Green relies upon the fact that some right of allocution has been protected since the time of English common law. See, e.g., Ball v. United States,
The North Carolina Supreme Court, after canvassing the history of the common law right of allocution, as well as the Supreme Court and lower court precedents relied upon by Green, ultimately concluded that there is no constitutional right to allocution, at least where, as in Green’s case, the defendant seeks to use allocution as a vehicle for presenting unsworn (and often factual) testimony to the sentencing jury without subjecting himself to government cross-examination. Green,
A.
Green relies primarily upon three decisions of the Supreme Court: Green v. United
First, petitioner’s reliance upon Green v. United States,
The Supreme Court in Green affirmed the sentence. Justice Frankfurter, joined by seven Justices on this point, looked to the common law tradition of personal allocution and construed Rule 32(a) in light of that history as creating a personal right even though the language of Rule 32(a) did not clearly do so. See id. at 302,
Thus, Green does not “clearly establish” any due process right to allocution. The opinion simply interpreted Rule 32(a) in light of its common law origins. The opinion never held, nor did any of the Justices even hint, that the right to allocution is protected by the Due Process Clause. See, e.g., Green,
Neither does United States v. Behrens “clearly establish” any due process right to allocution.
The case of Hill v. United States is particularly unsupportive of Green’s due process claim.
an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure.
Id. at 428,
Petitioner Green insists that the facts of Hill are distinguishable from the case sub judice, and that Hill therefore does not foreclose his allocution claim. To be sure, and as the Supreme Court itself recognized in Hill, the trial court in that case denied the defendant’s right to allocute only in the sense that it did not inform him of his personal right of allocution and the defendant ultimately did not allocute; the court did not deny an affirmative request for allocution by the defendant. Id. at 429,
That-a particular claim is open to question, has been specifically reserved, or has never
It follows from this interpretation of section 2254 that, the North Carolina Supreme Court’s decision rejecting Green’s allocution claim was not “contrary to” clearly established Supreme Court caselaw. Not only is there no Supreme Court case holding that someone in Green’s position has been denied a constitutional due process right to allocution, but the Supreme Court on more than one occasion has specifically mentioned that the .merit of such a claim is an open question. Hill,
Nor did the North Carolina Supreme Court unreasonably apply any clearly established Supreme Court caselaw in rejecting Green’s allocution claim. Although petitioner has cited us to dicta in opinions from the Court discussing the common law practice of allocution, he has not directed us to any Supreme Court decision holding that there is a constitutional foundation, under any circumstances, to that common law right. And, in fact, many lower courts have read this same body of Supreme Court precedents not to create any constitutional right to allo-cution. See United States v. Li,
Even assuming arguendo that the traditional common law practice of allocution has risen to the level of a constitutional entitlement, the North Carolina Supreme Court was nevertheless reasonable in concluding that common law history does not create a constitutional right to allocution in the quite different modern context where a¡ criminal defendant receives other sufficient procedural rights and protections to cure any potential constitutional defect of being deprived of a formal allocution. At English common law, in capital cases, the practice of allocution required the judge to inquire of the defendant if he had any reason why sentence should not be imposed upon him. See State v. Green,
B.
Green places great weight upon Ashe v. North Carolina, a decision from this circuit holding that “when a defendant effectively communicates his desire to the trial judge to speak prior to the imposition of sentence, it is a denial of due process not to grant the defendant’s request.”
Finally, even if we believed (counterfactually) that amended section 2254(d)(1) permitted us to award habeas relief based upon an inconsistency between our own precedents and the state court’s decision, we would nevertheless have to conclude that North Carolina’s decision in Green was neither contrary to nor an unreasonable application of the principles of law that were clearly established by Ashe. In Ashe, the defendant was sentenced in front of a judge and was apparently given no opportunity to address the judge during sentencing. In contrast, Green had a sentencing hearing before a jury, and at those sentencing proceedings, Green had a legal right to take the stand and explain his side of the story or plead for mercy. See Green,
... [T]he sentencing proceeding in a capital case is unlike any stage in noncapital cases. The defendant in a capital case may testify as to what penalty he feels is appropriate. He is allowed to present evidence as well as take the stand and testify before the jury that will recommend his sentence. Given this, we fail to see the need, much less a constitutional requirement, for a corresponding right of a defendant to make unsworn factual assertions to the jury during a capital sentencing proceeding without being subject to cross-examination.
State v. Green,
The reasonableness of North Carolina’s interpretation of Ashe is further confirmed by our language in Ashe itself, where we observed that the right of allocution is not unlimited, and that a criminal defendant “need not be heard on ... repetitions.” Ashe,
Finally, the reasonableness of North Carolina’s interpretation of Ashe is further underscored by the many other lower courts which, when confronted with precisely this question, have concluded that a criminal defendant has no due process right to use allocution to circumvent the traditional rules of. evidence and make unsworn statements to the sentencing jury without being subject to cross examination. In re Shannon B,
IV.
A.
Green next contends that his sentencing judge unconstitutionally coerced his second capital sentencing jury into entering a death sentence by pressuring holdout jurors into voting in favor of the death penalty in violation of Lowenfield v. Phelps,
Here, the jury began deliberations at 4:30 p.m. and was excused for the evening at 5:30 p.m. They reconvened at 9:26 a.m. the following morning and deliberated until 11:41 a.m. At that time, the court called the jury into the courtroom in order to respond to a note written by the foreman, Ms. Ross, which read, “[w]e have a juror that does NOT believe in Capitol [sic] punishment — The questions asked in jury selection were not understood. She can’t think of any reason for the death penalty. Jan Ross.” J.A. 176 (emphasis in original). In open court, the judge then asked, without reading the contents of the note aloud in the jury’s presence,
Q: Miss Ross, did you write this note and send it into the courtroom?
A: Yes, sir.
Q: All I can tell you is that the. information reported in this note is a matter that cannot now be addressed, and you must continue your deliberations with a view to reaching an agreement, if you can, without violence to individual judgment. You can retire and continue your deliberations. All right. You can go back out.
J.A. at 190 (emphasis added). The jury then began deliberating at 11:45 a.m, J.A. at 190, took a lunch break at 12:55 p.m., J.A. at 191, and reconvened for deliberations at 2:04 p.m., J.A. at 192. At 2:34 p.m., the judge received another note from the jury asking “[d]oes decision [sic] have to be unanimous on both recommendations?” J.A. at 177. The judge brought the jury in and said:
Ladies and gentlemen of the jury, the Court instructed you that for you to recommend that the defendant be sentenced to death in either or both of these cases, the State must prove three things beyond a reasonable doubt: First, that one or more aggravating circumstances existed; Second, that the mitigating circumstances are insufficient to outweigh any aggravating circumstances you have found; and Third, that any aggravating circumstances you have found are sufficiently substantial to call for the imposition of the death penalty when considered with any mitigating circumstances.
If you unanimously find all three of these things beyond a reasonable doubt, it would be your duty to recommend that the defendant be sentenced to death. If you do not so find, or if you have a reasonable doubt as to one or more of these things, in either or both of these cases, it would be your duty to recommend that the defendant be sentenced to life imprisonment.
I hope that answers your question— “Does your decision have to be unanimous on both recommendations?” All right. You may retire and continue your deliberations.
J.A. at 193. The jury continued deliberating at 2:38 p.m., and then, apparently stun sponte, the court called the jury out at 3:00 p.m. and the following colloquy took place:
Q: ... Miss Ross, if you’ll answer this question either yes or no. Has the jury arrived at a recommendation in either of the cases? That requires a yes or no. A unanimous recommendation in either of the cases, yes or no?
A: Unanimous in either, no, sir.
Q: Well, let me address the question that you gave me a few minutes ago a little bit further. The Court instructed you yesterday that you are required to consider each case separately in your making separate recommendations in each case. I told you that you could recommend — you could recommend death in both cases, or you could recommend death in one case and life imprisonment in the other, or that you could recommend life imprisonment in both cases, but whatever recommendation you make, must be unanimous. All right, you may retire and continue your deliberations.
J.A. at 193-94. The jury continued delibera-' tions and, at 3:23 p.m., the jury gave the court a note reading “[wje’re unable to reach a unanimous decision on either case.” J.A. at 177. The judge then brought out the jury one last time and admonished,
Ladies and gentlemen of the jury, let me say this to you. All of us have a considerable amount of time in this case. I know that you have been diligent in your deliberations.
As I told you yesterday, it is your duty to decide from the evidence what the facts are, and you must then follow the law which I gave you concerning punishment as to those facts. This is important, because justice requires that everyone who is sentenced for first degree murder has the sentence recommendation determined in the same manner arid have the same law applied to him.
It is your duty to reason the matters over together as reasonable men and woman, to listen to one another’s viewpoints and to deliberate with a view to reaching an agreement without violence to individual judgment. Each of you must decide the case for yourself but only after an impartial consideration of the evidence with your fellow jurors.
In the course of your deliberations, each of you should not hesitate to reexamine your own views and change your opinion if it is erroneous. I caution each of you not to surrender your honest convictions as to the weight or effect of the evidence, or do violence to your conscience, or compromise to your convictions solely because of the opinions of your fellow jurors, or for the mere purpose of making a recommendation. I’m going to ask you to continue on with your deliberations and see if you cari arrive at a recommendation.
J.A. at 197 (emphasis added). (This admonition constituted North Carolina’s version of the charge authorized by the Supreme Court in Allen v. United States,
The North Carolina Supreme Court, viewing these exchariges between the jurors and the court under the “totality of circum: stances,”
The jury charge and instructions at issue here are well within the range permitted under Lowenfield. Most importantly, the judge in this case instructed the sentencing jurors not to abandon their individual judgments, and he did so even more frequently and more forcefully than did the sentencing judge in Lowenfield. See, e.g., J.A. at 190 (decide “without violence to individual judgment”); J.A. at 197 (“[e]ach of you must decide the case for yourself’); J.A. at 197 (“I caution each of you not to surrender your honest convictions” or “compromise your convictions solely because of the opinions of your fellow jurors”). Also, the sentencing judge in Lowenfield, during his final exchange with the jury, made the almost identical statement to the jurors (“do not hesitate to reexamine your own views”) that petitioner Green here contends coerced the “holdout” juror into voting in favor of death. Furthermore, in Lowenfield, the jury deliberated for a mere thirty minutes after the judge’s final instruction (the so-called Allen charge), whereas here, the jury deliberated for a full hour after the judge’s final instruction, implying even less coercive effect of the judge’s instructions than in Lowenfield. See also United States v. Martin,
Relatedly, the total amount of time of jury deliberations in this case was approximately six hours, which is a small enough period of time to dispel any inference that any potential holdout jurors were “coerced” into voting in favor of the death penalty simply to end a grueling marathon session of jury duty. For example, in Lowenfield, in his opinion for the
We are also unpersuaded by petitioner’s frivolous contention that the “coercion” of the sentencing instructions was further compounded by the judge’s threats of “personal punishment” that might ensue if the jurors did not vote the in favor of the death penalty. These so-called “threats” occurred at some unidentified time during the sentencing proceedings when the judge instructed the jury “[ijt’s your further duty not to read, watch or listen to any accounts of this trial. If you violate these instructions, it could result in personal punishment! ” J.A. at 504. Petitioner contends that this earlier admonition, in conjunction with the judge’s other instructions regarding the importance of reaching a verdict, would have made the lone holdout juror or jurors feel that they would be subject to punishment if they continued to vote their conscience on the ultimate issue in the capital sentencing proceedings. Obviously, the North Carolina Supreme Court quite reasonably concluded that this warning did not “coerce” the capital sentencing jury into imposing the death sentence against the will of any potential anti-death penalty holdout juror or jurors. Green,
Green attempts to distinguish Lowenfield on the grounds that in that case the jury was informed of the consequences of a deadlock whereas here the capital sentencing jury was not so instructed, see also infra at 55-61, but Lowenfield does not hold that a jury must be informed of the consequences of a deadlock. Rather, Lowenfield simply affirmed a sentence that was imposed by a jury that happened to have been instructed as to the consequences of deadlock. Consequently, a state court would not unreasonably apply Lowenfield in concluding that its capital sentencing jury need not be instructed of the consequences of deadlock.
The jury charge and supplemental instructions at issue here also fit comfortably within the Supreme Court precedents relied upon in Lowenfield itself, even though those precedents are not relied upon by petitioner Green. Most notably, in Allen v. United States,
This case is obviously unlike Jenkins v. United States,
Furthermore, and unlike the trial court in Brasfield v. United States — a decision which was not cited by petitioner Green and which does not even appear to be based upon the federal Constitution — the trial court here did not inquire into the jury’s numerical division.
Therefore, for these reasons, as well as the other reasons articulated by the North Carolina Supreme Court, Green,
B.
Green also seems to advance an independent but related argument of coercion based upon McKoy v. North Carolina,
In McKoy, the Supreme Court held that it violated the Eighth Amendment for North Carolina to instruct a capital sentencing jury that it must unanimously find from the evidence the existence of mitigating circumstances. In so holding, the Court reasoned that a jury instruction requiring unanimity in order to find the existence of mitigating factors would permit one lone “holdout” juror to prevent the other jurors from considering' mitigating evidence, and that such a scenario would violate the principle that “a sentencer may not be precluded from giving effect "to all mitigating evidence.”
'The state court’s conclusion that Green’s sentencing instructions were not unconstitutionally coercive was not contrary to the McKoy case. Petitioner concedes that the verdict sheets in this case were in compliance with the dictates of the McKoy holding: “On its face, North Carolina’s scheme satisfies the requirements of McKoy by allowing each individual juror to consider and give effect to mitigating evidence,” Appellant’s Br. at 17-18
Nor was the state court’s conclusion that Green’s sentencing instructions were not unconstitutionally coercive an unreasonable application of the McKoy case. Green’s only argument under McKoy is, at best, that he was sentenced under a scheme that was inconsistent with the broader policies underlying McKoy because refusing to instruct the jury of the consequences of a deadlock, instructing the jury that whatever verdict it reaches must be unanimous, and requiring any sentence recommendation to be unanimous, will force the jury to deliberate “in the dark,” Appellant’s Br. at 14, and may coerce anti-death'penalty jurors in the minority to báck down and, presumably out of hopelessness, adopt the majority’s recommendation in favor of death. This argument is so tenuously related to the actual holding in McKoy that we could not hold that the state court’s decision to affirm Green’s death sentence constituted an unreasonable application of the clearly established principles of McKoy. In McKoy, the Supreme Court expressed concern that, if the jury could only consider mitigating factors that were found unanimously, then one juror could essentially impose the death penalty over the will of the other eleven. For example, all twelve jurors could find the existence of certain aggravating factors, and eleven of the twelve jurors could believe • that there was a mitigating circumstance- that was sufficient to outweigh the aggravating circumstance, but one lone holdout juror who refused to acknowledge the existence of that mitigating-circumstance could force the entire jury to impose a death sentence. See McKoy, at 440, 110 S.Ct. at
To the extent that this claim was adjudicated in state court, we hold that adjudication was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. To the extent that the claim was not raised and adjudicated in state court, the claim is not exhausted, and in any event, habeas relief on the basis of that claim is not compelled by any precedent existing at the time Green’s conviction and sentence became final. See Teague v. Lane,
V.
Petitioner advances two claims as to why he was denied the effective assistance of counsel guaranteed by the Sixth Amendment and Strickland v. Washington,
First, Green alleges that his counsel at the guilt-phase failed to investigate adequately the events surrounding his troubled childhood
Green has not demonstrated that his counsel’s representation fell below an objective standard of reasonableness. In his brief, Green contends that “trial counsel concede that despite the overwhelming available evidence, they never considered the defense of diminished capacity,” Appellant’s Br. at 25 (emphasis added), and, if they had considered and investigated the diminished capacity defense, they would have discovered — as did the (unnamed) psychologist and (unnamed) psychiatrist who evaluated Green at the request of his post-conviction counsel — that Green suffers from impaired memory, stress, substance abuse problems, and a (unnamed) psychiatric disorder. See J.A. at 167-68. Even if we were to take all of this legally questionable and speculative evidence at face value, it still would not establish Green’s claim.
Although in his brief Green insists that his trial counsel “never considered” the diminished capacity defense, the affidavit upon which he relies (which, incidentally, is the affidavit of his current habeas attorney who simply recites hearsay evidence from unnamed attorneys and mental health experts) states “[i]n an interview with one of Mr. Green’s attorneys, counsel admitted to me that he did not fully investigate a diminished capacity defense.” J.A. at 167 (emphasis added); It therefore appears that trial counsel did investigate the diminished capacity, defense, but perhaps not as completely as habeas counsel, expectedly, would have preferred, viewing the matter in retrospect. Indeed, and as appellant appears to concede elsewhere, Green’s mental capacity was evaluated by two psychiatrists at or around the time of his initial proceedings, J.A. at 272, and both of those psychiatrists concluded that Green is of average intelligence and capable of abstract thinking, without significant impairment of memory, competent to stand trial, and able to appreciate the distinction between right and wrong. J.A. at 211-12. And these mental health diagnoses were confirmed‘by a third psychiatrist who examined Green for the purposes of his second sentencing proceeding and who similarly concluded that Green'was without mental illness or personality disorder and that at the time of his double murder he could appreciate the difference between right and wrong. J.A. at 213. From this evidence, and in light of the “highly deferential,” Strickland,
Neither has Green established that any alleged constitutional deficiencies in the performance of his guilt-phase counsel were prejudicial, that is, that there is a “substantial likelihood” that Green would have been acquitted of first degree murder if his guilt-phase counsel had conducted more extensive investigation of the circumstances of his childhood. The above-referenced mental health expert testimony establishes that Green, in all likelihood, did not suffer from any significant mental defect or diminution
Second, Green contends that he was denied the effective assistance of counsel at his second death penalty proceeding because his attorneys did not adequately investigate the events surrounding one of his prior violent felony convictions that was used by the state as an aggravating circumstance.
None of this demonstrates that Green’s sentencing counsel was constitutionally ineffective. Although counsel should conduct a reasonable investigation into potential defenses, Strickland does not impose a constitutional requirement that counsel uncover every scrap of evidence that could conceivably help their client. In particular, we simply cannot say that Green’s attorneys were constitutionally required to track down the victim from defendant’s ten-year-old rape conviction in order to learn whether that victim regarded defendant as a violent person. Perhaps such an investigation may have assisted their client, but we cannot say that their failure to undertake such efforts rendered their conduct constitutionally deficient under Strickland.
Furthermore, we cannot conclude that counsel’s failure to uncover this evidence prejudiced Green. Even assuming that the victim of this prior rape would have been available at the time of Green’s second sentencing proceedings, and that she would have testified consistently with her hearsay testimony recited in Green’s counsel’s affidavit, such testimony would not have negated the fact that attempted rape is a violent felony by definition and as a matter of law, both under the Uniform Code of Military Justice, and under the laws of North Carolina. See United States v. Bell,
VI.
Next, petitioner Green contends that the trial court erred by refusing to instruct the capital sentencing jury as to certain non-statutory mitigating circumstances. In particular, Green was denied a timely request for jury instructions regarding the following non-statutory mitigating circumstances: (1) that Green would continue to adjust well to prison life and become a model prisoner; (2) that Green did not intend to take the life of Sheila Bland or John Edmondson when he entered Young’s Cleaners; and (3) that Green did not enter Young’s Cleaners with the weapon which was used to take the lives of Sheila Bland and John Edmondson. J.A. at 413. On direct appeal, the North Carolina Supreme Court ruled that, although it may have been error for the trial court not to so instruct Green’s death penalty jury,
We believe that the North Carolina Supreme Court correctly concluded under Chapman that the trial court’s failure to instruct the sentencing jury as to these non-statutory mitigating factors was harmless under the standard for direct review, and, a fortiori, that the trial court’s error was harmless under the less exacting standard for federal habeas review of state court convictions under Brecht v. Abrahamson,
First, although Green was denied the above-mentioned non-statutory mitigating instruction that he would continue to adjust well to prison life and become a model prisoner, his sentencing, jury was instructed that Green was an “above average inmate and good worker while incarcerated at Fort Le-venworth” and that he “has been a model prisoner and adjusted well while incarcerated for these offenses.” Green,
All of the evidence tending to support the requested nonstatutory mitigating circumstances which was not submitted — that the defendant ‘will continue to adjust well to prison life and be a model prisoner’ — was considered by the jury under those submitted but rejected mitigating circumstances as well as under the catch-all mitigating circumstances____ At least two of the circumstances provided a vehicle for the jury to consider defendant’s ability to adjust well to prison life in the future.
Id at 183,
We also believe the trial court’s failure to give Green his second and third requested non-statutory mitigating instructions was harmless error. As the North Carolina Supreme Court discussed, the jury was given a general statutory catch-all mitigating instruction. Green,
VII.
Petitioner.Green, who is black, contends that the prosecutor in his original jury selection unconstitutionally discriminated again black potential jurors in violation of Batson, and that the prospect of facing an all-white guilt-phase jury unconstitutionally coerced Green into pleading guilty. Green further contends, on the basis, of statistical and anecdotal evidence, that the State of North Carolina, and Pitt County, North Carolina, generally discriminate on the basis of race in seeking the death penalty in violation of principles established in McCleskey v. Kemp,
Green’s Batson claims were raised in state PCR and the state court held that they were proeedurally barred pursuant to N.C.G.S. § 15A-1419(a)(3). That subsection provides that a claim is proeedurally barred for the purposes of state post-conviction review if “[ujpon a previous appeal the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so.” N.C.G.S. § 15A-1419(a)(3). Thus, Green’s claims were barred under a' state procedural rule that' is an adequate and independent state-law ground, Ashe v. Styles,
Green has also not demonstrated entitlement to habeas relief based upon his McCleskey claim. The North Carolina Supreme Court properly rejected this claim in State v. Green,
CONCLUSION
The judgment of the district court dismissing Green’s petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 is affirmed.
AFFIRMED.
Notes
. The provisions of the AEDPA which amended section 2254(e) by limiting the availability of evidentiary hearings provide:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless .the applicant shows that— (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable ...
28 U.S.C. § 2254(e)(2) (emphasis added). Similarly, in newly-enacted section 2264, which sets forth standards for procedural defaults of federal claims in capital cases in opt-in states, Congress exempted defaulted claims where "the failure to raise the claim properly is — ... (2) the result of the Supreme Court’s recognition of a new Federal right that is made retroactively applicable." 28 U.S.C. § 2264(a). These two AEDPA amendments plainly employ the same "new rule” language found in the Supreme Court's Teague 'line of cases, demonstrating that Congress was fully aware of, and able to invoke, the Teague doctrine, if it so chose.
. See Black's Law Dictionary (6th ed.1990) (“al-locution” is the "[formality of a court’s inquiry of defendant as to whether he has any legal cause to show why judgment should not be pronounced against him on verdict of conviction; or, whether he would like to make statement on his behalf and present any information in mitigation of sentence”).
. Not only does Green's historical argument prove too little to establish a constitutional right ■ to allocution, it also proves too much. At common law, the right to allocution entailed the
. Although the North Carolina Supreme Court in Green held that the jury instructions and colloquy at issue here did not violate Green's “due process rights,”
. Petitioner has not argued before this Court that under Burton v. United States,
. Neither Green's petition for writ of habeas corpus filed in the district court, J.A. at 283-383, nor the district court's order denying the writ, J.A. at 386-434, appears to discuss this claim.
. Green apparently raised a McKoy-related claim in state court which was rejected on the merits by the North Carolina Supreme Court. The claim raised in state court, however, appears to be different from the instant McKoy claim. See
. 28 U.S.C. § 2254(b)(2) (claim may be rejected on the merits even though not exhausted in state court).
. The verdict sheets at issue here provided:
Issue One: Do you unanimously find -from the evidence, beyond a reasonable doubt, the existence of one or more of the following aggravating circumstances? ...
Issue Two: Do you find fróm the evidence the existence of one or more of the following mitigating circumstances? ...
- Issue Three: Do you unanimously find beyond a reasonable doubt that the mitigating circumstances or circumstances found is, or are, insufficient to outweigh the aggravating circumstance or circumstances found? ...
Issue Four: Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances you found is, or are, sufficiently substantial to call for the imposition of the death penalty.when .considered with the mitigating circumstance or circumstances found by one or more of you?
J.A. at 494-498 (first count of first-degree murder) & 499-503 (second count) (emphasis added). - .
. According to an affidavit of one of his attorneys, these aspects of Green's life history include his dependence on alcohol and drugs, the death of Green's half-brother, his parent's marital infidelities and subsequent divorce, and Green's poverty after being discharged from the military. See J.A. at 167.
. This aggravating circumstance was for committing a prior felony involving "violence or the threat of violence.” N.C.G.S. § 15A-2000(e)(3). The two other aggravating circumstances found by Green’s second capital sentencing jury were: (1) the murders were committed for pecuniary gain, and (2) the murder were part of a course of conduct in which the defendant engaged and that included the commission by the defendant of another crime of violence against another person. J.A. at 494 & 499.
. But see Buchanan v. Angelone,-U.S.-,
. On appeal, Green does not press the argument that this North Carolina procedural rule is not an adequate and independent state ground. See also J.A. at 392-95.
. Indeed, there appears to be little reason for Green not to have pressed these Batson claims on appeal to the North Carolina Supreme Court. Although Green raised his Batson claims in prior proceedings in state court, it appears as if he never raised such claims before the North Carolina Supreme Court on direct review of his current death sentences., J.A. 269-71. After Green's 1992 resentencing ordered in light of the intervening case of McKoy, Green appealed his death sentences to the North Carolina Supreme Court but apparently did not pursue any Batson argument there. See Green,
.In fact, Green does not challenge the decision of the North Carolina Supreme Court rejecting his McCleskey claim. Rather, his only argument here is that a new but yet-unfinished study that was not one of the studies presented to the North Carolina Supreme Court now supports his McCleskey claim.
Concurrence Opinion
concurring separately:
I concur in the result reached by the majority. I am not convinced that much of the discussion in Part II A through C of the majority opinion is either necessary or appropriate given the manner in which the parties addressed and developed those issues.