Jeffrey Clayton Kandies v. Marvin Polk, Warden, Central Prison, Raleigh, North Carolina

district reversing the despite predict case in this issue critical on court award fee which on order

vacating the leave nonetheless based, would we intact.

fee award reasons, I would foregoing all the

For direct award attorney’s fee

vacate issue fee revisit court the district

remand. KANDIES, Clayton

Jeffrey

Petitioner-Appellant, Prison, Warden, POLK, Central

Marvin Carolina, Raleigh, North

Respondent-Appellee.

No. 03-9. Appeals, States

United Circuit.

Fourth 2, 2004. June

Argued 24, 2004. Sept.

Decided a writ petition filed

courts, Kandies § 2254 28 U.S.C. under corpus habeas District States the United as- Carolina North District Middle Pur- for relief. grounds serting fourteen Act, 28 Magistrate Federal suant court 636(b)(1)(B), the district § U.S.C. petition habeas Kandies’s referred judge magistrate judge. magistrate recom- claims Kandies’s reviewed petition habeas Kandies’s mended objected After denied. recommendation, judge’s magistrate novo, re- as de reviewed court district Act, id. Magistrate Federal by the quired Widenhouse, Gordon Milton ARGUED: magistrate the adopted 636(b)(1), and Fialko, Chapel & Rudolf, Widenhouse Jr., addition, the recommendation. judge’s Ed- Appellant. Carolina, for Hill, North a Kandies issue to declined court district Attor- Deputy Welch, Special win William his any of for appealability of certificate Department Carolina General, North ney Kandies issued subsequently We claims. Carolina, for North Raleigh, Justice, of claims his for appealability of certificate Stiegler, Matthew BRIEF: ON Appellee. ineffec- rendered (1) counsel his trial Dur- Litigation, Penalty Death Center phase penalty the during tive assistance Carolina, Appellant. ham, North he whether investigate failing to by (2) the a child as abused sexually TRAXLER, and MICHAEL, Before erred Supreme Carolina North Judges. GREGORY, Circuit peremp- of use the State’s concluding that Afri- to strike challenges tory Judge opinion. published Affirmed of violative jurors was American can opinion separate wrote GREGORY in Batson holding Court’s the Judge judgment. the announced 1712, 90 79, 106 S.Ct. Kentucky, 476 in concurring opinion wrote an MICHAEL reason’s (1986). For the L.Ed.2d wrote Judge TRAXLER judgment. denial court’s the district follow, affirm we judgment. concurring opinion petition. habeas Kandies’s of OPINION I. writing Judge,

GREGORY, Circuit III, II, I, IV Kan- parts April Monday, separately Easter On V: part to American, went judgment announcing the is a Caucasian dies, who his Craven, who Patricia home Clayton Jeffrey Petitioner-appellant his mother time at the fiancee be- after to death sentenced Kandies approxi- At Jeremy. son, one-year-old Carolina a North guilty found ing Cra- Ms. left Kandies p.m., 4:45 mately first-degree rape first-degree store, grocery go home Osborne, ven’s Lynn Natalie murder Ms. time same is around fiancee, Pa- which his daughter four-year-old Natalie, daughter, her saw last of Craven Following exhaustion tricia Craven. Kandies, p.m., approximately At alive. North Carolina in the review rights who had not returned to Ms. Craven’s miles from Ms. Craven’s home in the town home, went to a small convenience store of Randleman, North Carolina. After located about one-half mile from Ms. Cra- Kandies consented to the search, the Ashe- ven’s home. While inside the convenience boro Police Department searched Kan- store, Kandies complained to clerk, dies’s apartment and concluded that Nata- Carolyn Wood, that hurt he fight- hand lie was not there. ing with his brother. In response, Wood, In addition to searching Kandies’s apart- who noticed that Kandies’s hand was be- ment, the Asheboro Police Department ginning to swell, suggested that Kandies brought Ms. Craven and Kandies in for have his hand by a examined medical tech- questioning on April 22nd. After being nician that happened to be inside the store. questioned and released by the Asheboro Kandies, however, declined to have the Police Department, Kandies returned medical technician examine his hand and Ms. home, Craven’s where she immediate- immediately left Thereafter, store. ly began to question him about Natalie’s returned Ms. Craven’s home at disappearance. As result, Kandies told approximately p.m. 7:30 Ms. Craven that he accidentally hit Natalie Upon arriving at Ms. with his home, Craven’s truck as he departed for gro- Kandies was informed during that Natalie cery could the early evening of April not be located. 20th. Consequently, also told Ms. Craven that contacted the panicked Asheboro Police Department after hitting Natalie because and reported he missing. Natalie was In drinking and re- thus decided to take sponse to Kandies’s telephone Natalie to call, his apartment, the where he would Asheboro Police Department able to clean her conducted an off and determine the extensive, but unsuccessful, extent of her injuries. search for Na- Kandies further talie on the told evening of Ms. April Craven that 20th.1 None- Natalie was making theless, the gurgling Asheboro noises on Police Department the way to his apart- learned through ment its and that search her and head investiga- did not look right. tion that Lastly, Ms. Craven Kandies and told father, Natalie’s Ms. that, Craven after Ed Osbourne, trying to were clean up, involved Natalie placed a custody Nata- dispute. lie’s body Based on and this her information, clothes in a garbage bag that Asheboro he hid in Police a Department bedroom began closet. to sus- pect that Ms. Craven and Kandies may Immediately after speaking with Kan- have falsely reported Natalie missing in an dies, Ms. Craven contacted the Asheboro effort prevent Ed Osbourne from gain- Police Department and described what she ing custody of result, Natalie. As a had been told by Kandies. The Asheboro Asheboro Police Department undertook ef- Police Department thereafter took Kan- forts April on 21st, the day after Natalie dies into custody, where, after being read was reported missing, to determine wheth- his Miranda rights, he provided two sepa- er Ms. Craven and Kandies were hiding rate statements detailing the events of Natalie. part As of efforts, these the April 20th. In addition, provided Kandies Asheboro Police Department requested the Asheboro Police Department informa- Kandies’s permission to search his apart- tion about the of location Natalie’s body ment, which was located approximately ten and consented, in writing, to a second 1. During search, Kandies returned to the Natalie. Although she had Natalie, not seen convenience store located near Ms. Craven’s Wood did notice that Kandies had gar- black home and asked Wood whether she had seen bage bags in the back his of truck. Accordingly, the apartment. of search took that he asserted also ment, Kandies searched Department Police Asheboro off house, her clothes took Natalie Natalie’s found and apartment Kandies’s deter- bathtub inside her placed ain bedroom bag hidden plastic in a body injuries. her the extent mine carpet and of clothes pile under closet statement in his written asserted further bag found plastic pieces. situation to handle unable he was that con- also Department Police Asheboro Natalie. strangled may have as result under- and bloody playsuit Natalie’s tained statement, written to Kandies’s addition out. turned inside both were which pants, complet- Department Police Asheboro recovered, Dr. body was Natalie’s After Kandies, which kit on rape suspect per- pathologist, Clark, a forensic Thomas hair, pubic head and samples of included revealed which autopsy, an formed Moreover, a forensic blood. and saliva Nata- on traumas force blunt there were blood and luminal conducted serologist sides skull, both neck, back head, lie’s truck, apartment on Kandies’s test au- addition, Dr. Clark’s body. of her of blood presence which revealed on bruises some topsy revealed apartment areas several rounded small body were Natalie’s door. passenger truck’s interior suggested pattern in a distributed hand. adult indicted 1992, caused they 11, were May On revealed autopsy County Moreover, Randolph Dr. Clark’s in the grand by a vagi- to Natalie’s injuries murder first-degree were there for the Court Superior found Dr. Clark Specifically, nal area. July On of Natalie. vagina, Natalie’s (1) County sides Su- Randolph both indicted (2) bruised, blood, were rape full first-degree which perior in the a tear caused 1994, jury trauma selection force April blunt On Natalie. (3) Natalie’s vagina, trial. capital of Natalie’s back Kandies’s for commenced of light In gaping. was exercised selection, opening State the vagina jury During area, Dr. vaginal Natalie’s nine to strike injuries challenges these peremptory its sexual- been On jurors. that Natalie opined American Clark African prospective of her time the about as- or counsel trial ly assaulted occasion, Kandies’s each striking these was death. State the that serted race their because prospective Dr. Clark’s findings the on Based to the in contravention acting was thus Department Police Asheboro the autopsy, Ken- v. in Batson holding Court’s questioning further for Kandies brought 1712, 90 79, tucky, During 23rd. April evening of the the State (1986). response, In L.Ed.2d investigating officers the interrogation, reasons neutral race forth voluntarily put awas there that mentioned death Natalie’s the each challenging peremptorily for sexually been may have she possibility jurors. American African nine stated: Kandies response, assaulted. by proffered “ reasons to the listening After going you were Craven] [Ms. toldT ” Superior County Randolph State, the to Natalie.’ like that something I did say challenges Batson all denied S.E.2d Kandies, N.C. State At the counsel. trial Kandies’s raised statements Kandies’s (1996)(quoting 67, 74 member selection, twelve jury end provided Thereafter, Kandies police). capital Kandies’s empaneled jury awith Department Police Asheboro Americans. African two included sexually denying statement written After jury empaneled, twelve to twenty-four beers on a daily was tried during April 1992 criminal basis in years immediately preceding session of the Randolph County Superior murder, (3) Natalie’s and was so intoxicat- Court. During guilt phase, Kandies’s ed on day of Natalie’s murder that his trial counsel did not present any evidence judgment impaired and he could not to rebut the State’s case-in-chief. Conse- control his addition, emotions. In Dr. Glo- quently, Kandies was found guilty, on ver opined that on the day of Natalie’s April 1994, of the first-degree murder murder Kandies was suffering from a men- and first-degree rape of Natalie. After tal disorder and that his ability appreci- rendered its guilty verdict, the ate the criminality of his conduct im- court scheduled Kandies’s sentencing hear- paired. Dr. Glover’s investigation into ing for the following day. At Kandies’s Kandies’s background, however, did not sentencing hearing, his trial pre- counsel uncover any childhood sexual abuse in- sented the testimony ten witnesses, dicia that may have been sexually among which included Dr. Brian Glover abused as a child. and Dr. Coleman, Claudia clinical psychol- ogists, and mother, Kandies’s Dr. Coleman, Peggy Kan- who has considerable ex- dies.2 perience performing psychological evalua- tions on criminal defendants, Glover,

Dr. testified who met with Kandies on she met three separate Kandies on two occasions for separate approximately three occasions for time,3 hours each approximately three testified that Kan- hours dies each time. Dr. suffered from severe Coleman alcohol depen- testified that dence. In so, doing during Dr. these meetings Glover stated that she conducted sev- (1) began eral consuming psychological alcohol and tests on Kandies, such marijuana regular on a basis as the age of screening intelligence and neurologi- fourteen and on a daily basis cal age of impairments. Dr. Coleman further seventeen, (2) consumed approximately testified that she reviewed Kandies’s 2. Kandies’s trial counsel also father, called the fol- cal 1143-46; (6) id. at Douglas Cattell, lowing (1) Griffen, witnesses: Jodie Jr., Kandies’s friend, Kandies's childhood who testified Bath, Maine, former landlord in who testified "perfect” Kandies was a father and that very Kandies "was a considerate father he and Kandies drank beer and smoked mari- very ... understanding ... [who] came home juana together, 1147-52; (7) id. John from work ... [and] played with [his chil- Jr., Gregory, friend, Kandies’s childhood who dren] ... took for them rides ... always was testified that Kandies caring was a and con- them,” there for 1039; (2) Curtis, J.A. Ken a cerned father. Id. at 1153-57. driving instructor one for of Kandies's former employers, who testified that Kandies was In addition to meeting with Kandies on able to complete a six driving week course in occasions, three Dr. Glover two conducted tele- weeks and family, 1045; adored his id. at phone (3) interviews with Hoover, three of Samuel ac- Kandies's a at clerk a local alcohol quaintances: (1) store, Timothy who Thompson, testified a that child- purchased Kandies a Kandies, hood of pack friend twelve week, of who beer indicated three to that he four times a 1049; and (4) id. at Kandies drugs consumed Mclver, L. and Thomas a alcohol to- gether detective for the 1980; until approximately (2) Asheboro Department, Police Samuel Hoover, who testified that a check who employed of was Kandies's crimi- the conven- nal only record ience revealed a store where conviction for driv- Kandies customarily pur- ing impaired, while 1076-83; (5) id. alcohol; chased (3) his Loflin, Brian and Linda who Kennedy, friend, present Kandies’s childhood was who at Ms. Craven's home on testified that he saw step-father night Kandies’s that disappeared Natalie and indicated and drunk that upset Kandies was he that when Kandies was intoxicated angry and at the found out step-father his was not biologi- his time. or however, testify, not, did tary. She rec- records, military records, work school counsel, that trial Kandies’s investiga- indicate from the reports ords, police and a child. as sexually abused re- was her on Kandies Based death. Natalie’s of tion with meetings and records of these presented view counsel Kandies’s After Kandies that opined Kandies, Dr. Coleman called evidence, the State mitigating its and disorder personality a from during suffered witness sole its as Craven Ms. also Coleman Dr. dependence. alcohol Cra- Ms. trial. Kandies’s of phase penalty emo- from suffered Kandies that opined with not live did she that testified ven im- that disturbances mental and tional Kandies gave she never that and Kandies Nata- date on the judgment his paired his Natalie to take permission blank however, Dr. Glover, Dr. Like death. lie’s apartment. Kandies’s into investigation Coleman’s during presented evidence on the Based sex- childhood uncover not did background trial, the of Kandies’s phase penalty have may he that or indications ual abuse (1) factors: aggravating two jury found sexually abused. been during the Natalie murdered Kandies son her that testified Kandies Peggy (2) and rape first-degree commission period for angry extremely became hei- especially was of Natalie murder four- age at the he learned when time jury also The cruel. or nous, atrocious Kandies, Steve stepfather, his that teen statutory proposed five three found his that and father biological his not was eighteen and factors4 mitigating She dead. was father biological true nonstatutory miti- twenty-eight proposed child, he awas Kandies when that testified ag- balancing After factors.5 gating physically verbally stepfather his saw factors, jury mitigating gravating Kan- testified further She her. abuse first- for the death Kandies sentenced Lastly, alcoholic. anwas stepfather dies’s of Natalie. murder degree was Kandies testified Kandies Peggy asserted, Kandies appeal, direct On him visited children father, whose loving Randolph things, other among Natalie's for his arrest following in prison by overrul- erred Superior County mili- in the served death, attorney present have right to waived found factors statutory mitigating three 4. The 23rd; (6) April police on speaking when have (1) did Kandies were: by the responsibility accepted voluntarily (2) mur- history; Kandies significant criminal police speaking with a mental when suffering death from Natalie's while Natalie dered disturbance; (3) a chronic 23rd; (7) Kandies’s was April emotional or abuser; (8) suf- criminality of his appreciate the long term substance capacity abuse; (9) Kan- requirements to the conform substance acute from conduct fered childhood; (10) Natalie’s impaired. law a troubled dies had Kandies; of character out murder mitigating factors nonstatutory eighteen step- believe led to (11) Kandies (1) expressed Kandies jury were: by the found age until biological father his was father April events describing the when remorse positive a fourteen; (12) never Kandies 23rd; (2) Kan- April to Ms. Craven 20th per- a model; (13) from suffers Kandies role with speaking when remorse expressed dies a from disorder; (14) comes Kandies sonality placed 23rd; (3) being to Prior April police on (15) witnessed family; Kandies dysfunctional the Asheboro arrest, contacted Kandies under of his abuse physical verbal and a child as location it inform Department to Police anis alco- step-father mother; (16) Kandies’s placed (4) being to body; Prior of Natalie’s history of from holic; (17) suffered the Asheboro arrest, contacted under was reared (18) Kandies depression; responsibility accept Department to Police environment. voluntarily an unstable death; (5) Kandies Natalie’s ing to the challenges parts. his Batson State’s also make me touch his private peremptory challenges use of to strike He would also take with showers me and jurors. nine African prospective American My fondle me while in the shower. claim, In rejecting Kandies’s Batson buy toys uncle would me such as GI North Court Supreme Carolina concluded get Joe’s order to me to [sic] tell satisfy his Kandies failed burden of anybody about what he doing me. establishing that the race neutral reasons experiences These traumatic haunted pretextual. proffered the State were throughout my me adult life. Kandies, 467 at 75-77. S.E.2d Conse reviewing J.A. 1371. In Kandies’s ineffec- quently, Supreme the North Carolina Randolph County claim, held that Court Su tive assistance of counsel the court perior “correctly Court ruled that noted that the affidavit submitted his State did not exclude [of nine subject trial counsel demonstrated that the African American] alleged Kandies’s childhood sexual solely upon based their race in violation of abuse did not up during come the “numer- at 76. Accordingly, Batson.” Id. Kandies, ous interviews ... [he had] Supreme North Carolina Court affirmed members of family, friends and [Kandies’s] ' Kandies’s' conviction and death sentence. professionals mental regarding health United States Court thereaf in ... background items Kandies[’] petition ter denied Kandies’s for writ of . presented mitigating could be as factors.” Carolina, certiorari Kandies v. North addition, Id. at 1381. In the court noted 136 L.Ed.2d that Kandies “never told [his] counsel (1996). about alleged childhood sexual abuse.” Id. 26, 1997, September On Moreover, at 1382. the court concluded post-conviction filed a appropri motion for that the part failure on the of Kandies’s (“MAR”) ate Randolph County relief in the question trial counsel “to about [Kandies] Superior asserting, among other ... per childhood sexual abuse was not se things, that his trial counsel rendered inef ineffective assistance.” Id. at 1383. Con- fective assistance during penalty phase sequently, the court held that Kandies’s by failing investigate whether he was ineffective assistance of counsel claim was sexually support abused as a child. In court, Accordingly, without merit. af- claim, Kandies submitted an affidavit rejecting ter the other ineffective assis- alleging sexually that he abused by Kandies, tance counsel claims raised uncle, Kandies, Ronald when was six denied Kandies’s MAR holding without years old:6 so, evidentiary hearing. however, In doing These incidents of sexual abuse took the court an express did not make finding place’when I living in New York evidentiary that an hearing was not My uncle, State. re- who was an adult 15- years me, quired my any dispositive older touch resolve than would facts in ’ private parts with his hand. He would dispute. Court, claim, we, In his briefs before this Kandies has ineffective assistance of counsel as ex-wife, included affidavits court, Lisa from may federal habeas not consider Frankes, friend, Sexton, military Stephen reviewing them in petition. Kandies's habeas in support of his assertion that he sexual- Moore, 266, (4th Wilson v. 178 F.3d 272-73 ly However, by abused as a child his uncle. cert, denied, Cir.1999), 880, presented because these affidavits were not to 191, (1999). 145 L.Ed.2d 160 adjudicated state court it' when Kandies's

467 4, accepting mag- 5, 1998, order on March the North Car- On November judge’s Kandies’s recommendation and declin- granted istrate Supreme Court olina of for the appeal- for a writ certiorari a certificate of ing to issue Kandies petition to remanding MAR purpose any in his ability limited for of the claims raised County Superior 23, Court Randolph 2004, On March we petition. habeas holding in light of its in reconsideration appealabili- a certificate of issued Kandies McHone, 254, 499 N.C. S.E.2d v. (1) State ty his trial counsel for his claims that (1998), held, oth- 761, among which 762-64 during the ineffective assistance rendered court must that a things, post-conviction er failing penalty by investigate phase an as to whether express finding make sexually abused as a child whether he was to resolve evidentiary hearing required (2) peremptory chal- the State’s use dispute. in On November dispositive facts African lenges to strike nine 30, 1998, filed an amended MAR Kandies jurors violated Batson. American ineffec- additional seeking raise several April On claims. counsel tive assistance II. 29, 1999, Randolph County Superior prior denial of Kandies’s affirmed its Court de novo a district “We review MAR, expressly finding that an evidentia- petition court’s on a for writ decision there hearing required because ry was not rec corpus based on state court habeas concerning disposi- disputes no were Inst., Roxbury Corr. Spicer ord.” addition, the court declined In tive facts. (4th Cir.1999). 547, Because F.3d raised in the additional claims to consider after the petition filed his Kandies habeas MAR, finding Kandies’s amended the Anti-Terrorism effective date of authorized claims were not these Penalty Act of 1996 Effective Death remand Supreme Court’s North Carolina (“AEDPA”), is limited our de novo review barred under procedurally order and were forth AEDPA. by the standards set § Gen.Stat. 15A-1419. N.C. AEDPA, re if court has Under a state North Carolina petitioned the thereafter post-con claim for the merits of a solved certiorari, for a writ of Supreme Court relief, here, a as is the case federal viction summarily August denied which cor a writ of habeas may court not issue holding was pus the state court’s unless 7,1999, peti- filed a On October to, involved an unreasonable “contrary or corpus of habeas under tion for writ of, clearly established Federal application § District 2254 the United States U.S.C. Law, Supreme Court by the as determined District of North for the Eastern Court States,” 28 U.S.C. United asserting grounds fourteen Carolina 2254(d)(1), in a § “resulted decision 8, 2000, the district On March relief. determina on an unreasonable was based petition habeas referred Kandies’s court light of the evidence of the facts tion judge. On December magistrate proceeding.” court presented the State report magistrate judge issued a 2254(d)(2). §Id. peti- habeas recommending that Kandies’s case, must determine present we 18, 2000, December tion denied. On adjudication the state court’s whether magistrate judge’s objected to the to, “contrary or in- claims was Kandies’s granting Kan- After recommendation. of, application an unreasonable volved to file his extend time dies’s motion to law, as deter- clearly Federal established objections magistrate judge’s recom- of the United mined mendations, court issued an the district 468 2254(d)(1). § grant

States.” To issue Kan- habeas we petition Id. Kandies’s must however, corpus, adjudication 'writ of conclude that the dies a habeas we state court’s adjudi- incorrect, only not find that the state court’s of his was not need claims but that, “contrary objectively cation of his claims both it was to” unreasonable. application” and an “unreasonable of clear- III.

ly v. established law. In Williams federal expressly Taylor, Supreme held Court I begin argument with Kandies’s “contrary that AEDPA’s to” and “unrea- his trial counsel rendered ineffective as- have application” indepen- sonable clauses during phase the penalty sistance 362, 404-05, meanings. dent 120 529 U.S. breaching duty reasonably investi- (2000). Thus, 1495, S.Ct. 146 389 L.Ed.2d gate mitigating Specifically, evidence. may we issue a writ of habeas argues trial counsel if corpus that the state court we determine duty reasonably breached the investi- adjudicated a manner claims evidence, gate mitigating and thus ren- contrary was either to or an unreasonable assistance, by failing dered ineffective application federal law. expert directly a mitigation retain in- quire about childhood sexual abuse. A adjudication state court’s of a clearly claim is contrary to established fed A. applies eral law “if the court a state rule governing different from the law forth Washington, set Strickland v. the Su- eases, Supreme if it preme [the Court’s] set a two-part Court forth test that differently a satisfy decides case than [the Su defendants must succeeding before preme Court of materially a set on an has] ineffective assistance of counsel Cone, indistinguishable 668, facts.” v. 2052, Bell 535 claim. 466 U.S. 104 S.Ct. 80 685, 694, 1843, (1984). First, U.S. 122 S.Ct. 152 L.Ed.2d L.Ed.2d 674 a defendant (2002). adjudication 914 A state court’s of must show perform- that defense counsel’s a claim constitutes appli objective unreasonable ance fell below an standard of clearly reasonableness, cation of established federal law “if proper measure of the state court correctly gov identifies the prevailing professional which is norms. erning legal principle from Supreme 687-88, Second, [the Id. 104 S.Ct. a decisions, unreasonably Court’s] but ap defendant must show that he or she was plies it to the particular facts prejudiced by case.” objectively defense counsel’s Supreme Id. Because 687, has stated unreasonable performance. Id. that an application “unreasonable of feder capital S.Ct. 2052. In the context aof al law is different from an appli sentencing incorrect proceeding, such as one law,” us, cation of Taylor, federal v. Williams before preju- defendant establishes 410, 1495, 529 U.S. at may S.Ct. we showing dice “there is a reasonable that, issue Kandies writ of habeas corpus probability absent trial counsel’s [his solely because objectively we determine in our “inde unreasonable performance], the pendent judgment state-court ... de sentencer would have concluded that applied cision [a case in aggravating mitigating Court] the balance of Vincent, correctly.” 634, v. Price did circumstances not warrant death.” Id. 641, 155 L.Ed.2d 877 at 104 S.Ct. 2052. To make such a Visciotti, (2003)(quoting showing, a defendant need not establish Woodford 19, 24-25, probability L.Ed.2d reasonable that the entire curiam)). Thus, 279 (2002)(per in order to would have voted against imposition

469 rather, sentence, of counsel was unreasonable.” that “there is omission but a death 689,104 Id. at S.Ct. 2052. one probability that at least a reasonable a different bal would have struck juror B. Smith, 510, v. 539 U.S. Wiggins ance.” Supreme has expressly Court 2527, 471 537, 156 L.Ed.2d 123 S.Ct. “ profession defense counsel has a held that added). ‘A reasonable (2003)(emphasis thorough al to inves “obligation conduct probability is a sufficient to probability ” tigation background.” of the defendant’s in the outcome.’ undermine confidence 396, Taylor, at Williams v. 529 120 U.S. (4th Miro, 268, 275 262 F.3d Glover 1495; Wiggins, see also 539 U.S. at S.Ct. Strickland, 466 at Cir.2001)(quoting U.S. 523-34, (holding 123 S.Ct. 2527 that de 2052). 694, determining In 104 S.Ct. to duty fense counsel breached conduct defendant has carried his bur whether a complete investigation of defendant’s back prob there is a reasonable showing den of Strickland, 691, ground); at 104 466 U.S. juror that at least one would have ability (stating 2052 that defense counsel S.Ct. if impose to a death sentence declined duty investiga “has to make reasonable evidence, mitigating with certain presented or to make decision that tions a reasonable aggravation in reweigh the evidence “we investigations makes unneces particular totality mitigating against the of available sary”). determining whether defense 534, 539 U.S. at Wiggins, evidence.” duty, counsel breached this “we must con S.Ct. 2527. objective per of [counsel’s] duct an review formance, measured for Kan- reasonableness turning the merits of Before to norms, professional under which prevailing claim, it is to note that important dies’s context-dependent includes a consideration two-part is an onerous Strickland’s test challenged conduct as seen from satisfy strongly is one to because “counsel Wig the time.” perspective counsel’s at adequate as- presumed to have rendered (inter at gins, 123 S.Ct. significant made all decisions sistance and omitted). marks quotation nal citation and professional in of reasonable the exercise in necessary keep to mind that It is also at judgment.” required “investi counsel is defense justified strong presumption 2052. This mitigating line gate every conceivable forced to by the fact that counsel is often unlikely the effort no matter how evidence without the decisions make instantaneous at sen would be to assist the defendant courts, appellate especially hindsight evidence present mitigating or “to tencing” 689-90, courts, enjoy. at Id. habeas every sentencing case.” Id. noted 2052. As the 121 S.Ct. 2381. tempting for a “It is all too Strickland: second-guess case, counsel’s assis- defendant as present In the sentence, conviction or adverse counsel breached the tance after that his trial serts court, examining his back easy duty thoroughly investigate it is all too for a of a by failing un- to retain the services proved ground defense after it has counsel’s argument fails successful, mitigation expert.7 This particular that a act conclude prior capital case. to Kandies’s inef- inal also contends that received Randolph County Superior court-appointed While I believe the fective assistance because attorney appointed ex- responsible Court should have attorney primarily cases, capital lack of mitigation perienced Mr. Dunn's discovering developing evi- dence, Dunn, ipso experience does not establish tried a crim- N. had never Scott facto First, for argu- several reasons. Kandies’s circumstances where the of lay assistance ment, per if create a accepted, would se family, such persons, as friends and col- requiring rule defense counsel to retain a leagues, is in discovering more useful mitigation expert every capital case. presenting mitigating evidence than that of Court, Supreme using while standards mitigation expert. a will There also be by such as those set forth American some instances where defense counsel’s ex- Bar as is guides Association what rea- perience in trying capital cases and pre- sonable, repeatedly adopt has declined a senting mitigating evidence will render the rigid things of checklist that defense coun- of a mitigation services expert unneces- must do sel all cases because “[n]o sary. mitigation While the retention of a particular set of detailed rules for coun- expert in instances may these nonetheless can satisfactorily sel’s conduct take ac- advisable, I do not believe defense variety count of circumstances faced required, counsel should be or feel com- by range defense counsel or the legiti- pelled, to do so. mate regarding decisions how to rep- best Strickland, resent a criminal defendant.” argues that his trial 688-89, at U.S. S.Ct. 2052. More- counsel thoroughly failed to investigate his over, expressly the Court has stated that background by not specifically inquiring adoption a rigid checklist for coun- into whether sexually he was abused as a sel’s conduct “would interfere child. In so arguing, Kandies asserts that protected ‘constitutionally independence of trial duty counsel had a specifically at counsel’ the heart Wig- Strickland.” inquire about childhood sexual abuse be gins, at 539 U.S. 2527 (quot- cause numerous studies have found that Strickland, ing men commit who acts of child abuse are 2052). Consequently, Supreme likely far general more than population has made it clear that defense counsel sexually to have been abused as children. must be afforded the discretion to deter- To the I contrary, believe the interests of mine whether the expert retention of an criminal defendants are better served serve the will interests of his or her client and, so, when defense counsel has if the discretion to type expert what would best do so. consider the particular circumstances of a case and determine whether a specific in Second, argument Kandies’s incorrectly quiry regarding childhood sexual abuse assumes that the mitigation services of a should be under-taken. As expert are the exclusive means through stated, repeatedly Court has particu “[n]o which defense counsel can thoroughly in- lar set of detailed rules counsel’s con vestigate background. a defendant’s duct can satisfactorily take account of the mitigation While the services of a expert variety of circumstances faced undoubtedly defense prove will in many useful in- stances, counsel range or the they legitimate are no deci means the only sions through regarding manner which how represent defense counsel can best to thoroughly investigate Strickland, criminal defendant’s back- defendant.” instance, ground. For 688-89, 104 there will be some S.Ct. 2052. considering addition, he was ineffective. When an in- In I note that Mr. Dunn was not claim, effective assistance of counsel the at- the lead counsel Kandies’s trial and thus I torney’s performance examined, given actual presume, alleged that it has not been otherwise, experience, rather than his her supervised which is an that he was a more attorney’s likely performance.

indicator of experienced attorney. conduct, background, tigation I limit of Kandies’s Dr. reviewing counsel’s of whether find indications that my inquiry to determination Coleman did not in con- may sexually was “unreasonable” the state court have been abused as ob- performance was cluding that counsel’s a child. pro- under

jectively prevailing reasonable above, As demonstrated Kandies’s case, In this Kandies’s norms. fessional thoroughly investigated counsel Kandies’s “numerous inter- counsel conducted trial background any mitigating for evidence. Kandies, of [Kan- ... members views with Indeed, jury these in the efforts resulted and mental health family, Mends dies's] finding twenty-one thirty-three of miti in regarding possible items professionals by trial gating presented factors Kandies’s could be background ... that Kandies’s Thus, that the counsel. I cannot conclude factors.” J.A. presented mitigating as of coun part failure on Kandies’s trial inter- open-ended Despite these inquire alleged sel about Kandies’s views, subject child sexual abuse “the of to a childhood sexual abuse was due half addition, ... was never raised.”8 Id. investigation hearted into back Kandies’s clinically counsel had two Kandies’s trial Accordingly, I on ground. conclude based psychologists, Drs. Grover trained of of case and all the circumstances this Coleman, back- investigate Kandies’s investigation conducted Kandies’s discovering mitigating ground hopes counsel, that state court not Grover, pri- Dr. who focused evidence. finding that his counsel’s unreasonable sub- marily history on the Kandies’s despite having retained a performance, abuse, Kandies on interviewed stance mitigation expert asking specific ques separate approximately three occasions abuse, did not tion about childhood sexual tele- time and conducted two hours each objective fall below an standard of reason phone three of Kandies’s interviews with profes by prevailing as measured ableness However, Dr. did Grover acquaintances. Strickland, sional norms. alleged not find indicia Kandies’s 104 S.Ct. 2052. Coleman, a Dr. childhood sexual abuse. psychologist, met neuro forensic C. ap- separate on two occasions arguendo assuming that Even Dur- proximately three hours each time. counsel’s can show that his trial meetings, Dr. Coleman screened ing these unreasonable, objectively performance intelligence neurological Kandies for that Kan- I; find my colleagues, as well as Moreover, Dr. re- Coleman impairments. there is a is to establish that records, dies unable rec- Kandies’s school work viewed least probability that at one reasonable ords, military police records and records weighed aggravating juror have would investigation to the Natalie’s related differently mitigating inves- evidence comprehensive Despite death. 2052; Thompson, Barnes recognize the trauma of child- 8. While I that cf. (4th Cir.l995)(stating victims to re- sexual abuse can cause F.3d 979-80 hood abuse, memory of such the fact press their "may rely.on his the truthfulness counsel trial counsel Kandies never informed his in decid- and those whom he interviews client was, was, sexually or believed he investigation"). ing pursue This how to important because abused is especially present case because true in the unequivocally that “what has stated background nothing could have in Kandies's de- investigation are reasonable decisions - alleged to his child- his trial counsel alerted supplied critically” “information pends hood sexual abuse. Strickland, the defendant.” jury been informed that Kandies was fon- was not unreasonable in concluding like- dled his uncle and forced to fondle his wise.

uncle in return while period for a living York. In imposing New sentence, a death IV. jury found several mitigating factors I now turn to argument Kandies’s related difficult childhood, Kandies’s the North Carolina Supreme e.g., Court’s con- Kandies did not positive have a role clusion that model, the trial came court dysfunctional properly from a over- family, ruled objections was reared in unstable State’s use environ- ment. Nonetheless, peremptory challenges to pro- concluded remove nine spective these and the other African mitigating American factors is con- outweighed were trary to the two or an aggravating application unreasonable of found, factors that it namely Supreme the that Kandies holding Court’s in Batson v. murdered Natalie while raping Kentucky, 79, her and 476 U.S. 1712, 106 S.Ct. 90 that Natalie’s murder was especially (1986). hei- L.Ed.2d 69 nous, atrocious or I cruel. am not con-

vinced, at least not point to the I where A. lack confidence in the outcome of Kan- In Batson v. Kentucky, Supreme the dies’s sentencing Strickland, proceeding, Court held that a may defendant raise an 466 694, U.S. at 2052, 104 S.Ct. that the equal protection challenge to the State’s jury, had it been informed that Kandies use of peremptory challenges at his or her was fondled by his uncle and forced to own showing that the State used fondle his uncle in return during the peri- such challenges for purpose the od of exclud- he lived in York, New would have ing members of the defendant’s balanced the race.10 aggravating and mitigating 96, 476 U.S. at 106 factors S.Ct. 1712. differently. In so I in While no way holding, the Supreme minimize Court set Kandies’s forth a childhood sexual abuse, three-part test occurred, if it that trial I courts are am not em- convinced ploy in jury, the evaluating once a informed of defendant’s allegation Kandies’s alleged that the abuse, childhood sexual State has peremptorily would challenged have a prospective sentenced juror Kandies to death solely on after the of basis having First, found guilty him race. rape a trial court must decide of murder whether four-year-old fiancee’s the defendant made prima has a daughter and the half-sister of showing his one- that the circumstances sur- facie year-old son, dumping her in body a plastic rounding the State’s peremptory challenge bag and then lying about the incident for a of a prospective juror give rise to an infer- couple days.9 of Clearly, the state court juror ence was struck of because 9. I knew, also note that the jury through selection, crimination has occurred jury in so Kandies's police, statements to that he never public is confidence undermined where a de- having admitted to raped Thus, Natalie. fendant, by racially assisted discriminatory accepted never responsibility or demonstrated strikes, peremptory acquittal." obtains an rape remorse for the of Natalie. 42, 50, 2348, U.S. 120 L.Ed.2d (1992). Moreover, the Court noted that 10. Similarly, Supreme held "[rjegardless who invokes discrimina- Georgia v. McCollum that may State chal- tory challenge juror ... subjected is lenge a racially defendant's per- use based by] [the harms open public caused racial emptory challenges public because as "Olust 49, discrimination.” Id. at 112 S.Ct. 2348. confidence justice in criminal is undermined by a conviction in a trial where racial dis- juror 96, 106 striking reason for race neutral Id. at or her race.11 S.Ct. 98, by, established may pretextual.14 inference be Id. at 106 S.Ct. 1712.

Such alia, pattern perempto showing inter pro Ohio, non-Caucasian

ry challenges against In Powers v. 97, 106 Id. jurors.12 S.Ct. spective protection the equal prin Court extended has Second, defendant established once the ciple by holding Batson established discrimination, the case of prima juror, having facie an individual while not “a prof require the State trial court must jury, right particular petit to sit on striking race neutral reason fer a possess right ... not to ex does be prof juror. The State’s Id. from on account race.” 499 cluded one persuasive or need not be fered reason 409, holding 111 S.Ct. 1364. This U.S. ‘“[ujnless a dis plausible even because primarily based on Court’s belief criminatory inherent intent is exception voting, that “with the most offered explanation reason ] [State’s] privilege the honor and citizens ”13 race Purkett will deemed neutral.’ opportunity their duty significant most 765, Elem, 1769, v. process.” in the participate democratic curiam)(quot (1995)(per 181 L.Ed.2d 834 ensure that Id. at 111 S.Ct. 1364. To York, New ing Hernandez right a prospective juror’s to not be ex 1859, 114 358-59, 111 L.Ed.2d 395 S.Ct. the of jury duty from on basis race cluded J., (1991)(O’Connor, concurring judg vindicated, is the further held that ment)). Thus, only put the need State standing bring to criminal defendants have clear, race neutral reason that is forth a asserting a equal protection an claim par specific related to the sufficiently not prospective juror’s right to be excluded Batson, 476 ease be tried. U.S. ticular race jury duty from on the basis of has 97-98, 106 Finally, 1712. after the at S.Ct. 415, Id. at 111 S.Ct. 1364. been violated. reason, a proffered has race neutral State Moreover, Court held that criminal the the the trial court must determine whether bring standing have such defendants or has carried his her burden defendant their race challenges even when differs chal proving peremptory that the State’s juror because from that of the excluded lenge purposeful was motivated dis i.e., of a differ- crimination, failure to allow defendants proffered that the State’s proffered reason need Originally, requirement that a de- 13. While the State's Batson's 11. plausible, the persuasive or even State be not prima a case dis- fendant establish facie prima case cannot rebut a defendant’s defendant also mandated facie crimination discriminatory "merely by denying had a [it] a of a or she was member show good 'affirm[ing][its] in mak- or faith motive "cognizable group” and that the State racial ” Batson, 476 U.S. ing selections.’ individual against peremptory challenges exercised 98, (quoting Alexander v. 106 S.Ct. 1712 at group. of the defendant's racial members 1221, 632, Louisiana, 625, S.Ct. U.S. 92 405 96, require- U.S. at 106 S.Ct. 1712. This 476 (1972)). L.Ed.2d 536 31 ment, however, v. was eliminated in Powers 415-16, 1364, 400, Ohio, 499 U.S. 111 finding regarding a trial court's Because (1991). 113 L.Ed.2d 411 large purposeful will turn discrimination determinations, credibility part it should on juror prospective that a has 12. An inference great review. Bat be accorded deference on challenged 21, peremptorily because his son, been at 106 S.Ct. 1712. 98 n. through Thus, finding regarding pur race also be established or her can court’s during may questions poseful and statements over State’s discrimination Hernandez, 97, Batson, clearly erroneous. turned unless voir dire. 476 365, U.S. at 111 S.Ct. 1859. 500 bring given ent race to these claims “would be to reasons opportunity. when Hav arbitrary ing argue prof condone exclusion citizens failed to that the State’s honor, duty, privilege from the pretextual, fered reasons were Kandies, Accordingly, challenge service.” Id. who is waived his Batson I and thus American, standing has it plain Caucasian review for error. Davis v. Balti Co., claim bring asserting Batson that the Gas & Elec. more 160 F.3d (4th Cir.1998)(“[W]e improperly prospec- State excluded nine now follow lead of tive African American because other circuits that have held that the mov- their race. argue ant’s failure to pretext constitutes a

waiver of initial objection.”); see Jackson, United States 347 F.3d B. (6th Cir.2003)(“If a defendant fails to voluntarily Because responded the State explanation rebut race-neutral to each of challenges, Kandies’s Batson I made, it time was ruling district court’s presume that Kandies prima established a objection plain reviewed for er case of racial discrimination on each facie ror.”). directly instance and thus turn For the proffered ruling State’s district court’s striking reasons for each to consti- plain error, of the nine African tute Kandies must show that American (1) (2) jurors. Evatt, occurred, error Matthews v. the error was F.3d Cir.1997). (4th i.e., (3) so, plain, clear, obvious or doing I the error consider (4) rights, each of the affected substantial peremptory challenges State’s er- seriously fairness, ror integri- in turn. affected the ty public reputation judicial pro- 1. Ms. Randleman Olano, ceedings. United States v. 507 725, 731-34, 736, U.S. 123 response In to Kandies’s Bat- (1993). Here, L.Ed.2d I 508 find that the son challenge, the State it asserted that trial court did not err by overruling Kan- peremptorily struck Ms. Randleman be challenge dies’s Batson the peremptory juror cause her although questionnaire removal of Ms. Randleman because the “form that she had not indicate[d] been proffered State race neutral reasons that any offense,” convicted of criminal a check clear, sufficiently were specific and related of her criminal record revealed that she Batson, 97-98, to the case. 476 U.S. at had “been convicted of worthless checks 106 S.Ct. 1712. I Because find that and two speeding violations.” J.A. 131. trial court did not commit an error addition, In the State asserted that Ms. overruling challenge, Kandies’s Batson I Randleman “was hesitant death penalty on not proceed need with error plain review. questions.” Id. undoubtedly Such reasons constitute race neutral reasons that are Jinwright 2. Ms. clear, specific sufficiently and related to Batson, 97-98, the case. 476 at U.S. In response to Kandies’s Batson 1712. Consequently, S.Ct. once challenge, the State the State it per asserted that put reasons, forth these race neutral Kan- emptorily Jinwright struck Ms. because dies had the burden establishing four-year- “she has with worked three- or they Kandies, however, pretextual. were old children and was hesitant the death arg-ue failed to proffered that the penalty.” noted, State’s 131. previously J.A. As fact, pretextual. reasons were In once the State put forth these race neutral reasons, did not even proffered rebut the State’s Kandies had burden of estab- 5. Ms. and Mr. & Rawlinson pretextual. Kan- they were lishing It McClure however, argue that dies, failed to pretextual. were reasons proffered State’s response In to Kandies’s Batson chal- Indeed, respond to the he not even did prosecutor lenge, the stated Ms. Raw- afforded reasons when proffered State’s peremptorily were linson Mr. McClure I review Consequently, the opportunity. struck because: error, plain challenge this Batson thought Ms. Rawlinson had not even Davis, F.3d find. I do not which certainly penalty, the death was about proffered The race neutral reasons strong against for or opinion not [sic] clear, sufficiently specif- by the State were death And Mr. McClure penalty. case, which is all that ic to the and related except in a similar situation he was of its requires part second Batson also—my officer noticed that he nodded 97-98, three-part test. saying that I’m off at least twice. Not interesting most part this was the

trial, certainly I do not but believe paying sufficient attention Massey 3. Ms. Also, case, I discussed the though. response to Kandies’s Batson Point panel High with the Police De- stated that Ms. challenge, prosecutor partment, they indicated Mr. challenged be Massey peremptorily Ms. Rawlinson would not McClure and she: cause good type for this of case. me, I understanding trouble had by the court to J.A. 167. When asked hearing problem because think she has a proffered on his reasons for elaborate continuously with difficul- she answered McClure, striking Ms. Rawlinson and Mr. difficulty getting I her to had ty, “I most prosecutor asserted: asked I ex- my questions, and so understand basically indicated everybody [sic] Massey her Ms. because of hear- cused anyone they contact difficulty and I had some ing problems, Primarily, the trial. the reason prior to ques- her to the understanding answer penalty.” they weak on the death were I her. tions asked Id. at 168. prof assessing In the State’s the set forth After these

J.A. 131. State reasons, reasons, begin by noting I that it is Kandies had the bur fered neutral race for to con proper prosecutors they pretex- completely establishing den of that were pro However, to determine whether police as Ms. Randleman tact tual. with or juror a criminal record has spective has failed to even Jinwright, and Ms. police. I prior contact with had' proffered to the State’s reasons respond to solicit prosecutors that are free Consequent note given opportunity. the when juror’s prospective on a plain police from advice ly, challenge I review this Batson penalty, apparently death as Davis, doing at In stance the 160 F.3d error. so, however, I doing so, here. court did not err was done I find that the trial police most will that in instances challenge be observe overruling Kandies’s Batson to render such upon not a basis which proffered race neutral have the cause State’s course, be some may Of there clear, sufficiently advice. specific reasons were 97-98, 106 can advise police where rare instances case. 476 U.S. at related juror’s prospective pro prosecutors I about a Accordingly, need S.Ct. 1712. to some due penalty on the death stance plain error review. ceed 476 juror

prior prospective contact where the I am equally suspicious of the police at-length discussed death State’s it assertion that removed Ms. Raw- penalty prospective an officer heard the linson Mr. they McClure because did juror discussing his or her views on a strong not hold position on the death Here, penalty. given op- penalty. death when Such prospective jurors are ex portunity, actly the State failed to set forth the ones empaneled that should be Illinois, upon High Morgan basis which Point for a trial. capital Police v. 504 719, 735-36, Department 2222, concluded that Ms. Rawlinson U.S. 112 S.Ct. 119 good 492 ju- (1992)(holding and Mr. “would not be L.Ed.2d McClure defendant right has type “they rors for this case” remove for cause because always who would penalty question.” impose were on the death death weak Moreover, finding guilty sentence after defendant Id. at 167-68. State’s as- crime); Witt, a capital Wainwright 469 High sertion Point Depart- Police 412, 5, 844, U.S. n. 105 S.Ct. ment indicated that Ms. Rawlinson and (1985)(holding L.Ed.2d 841 that “the Mr. State McClure were weak on death pen- may juries exclude from capital sentencing alty observation, contradicts its after ques- ‘class’ of veniremen whose views observing tioning Ms. Rawlinson and prevent would or substantially impair the McClure, they Mr. “were not a[sic] performance of their duties in accordance opinion strong against for or the death oaths”). with their instructions or their penalty.” Id. at 167. Nonetheless, a discriminatory because in Accordingly, the State’s assertion that it tent is proffered not inherent in this rea struck Ms. Rawlinson and Mr. McClure son, Purkett, I must deem it race neutral. High Point Department because Police 768, 115 S.Ct. 1769. Accord [they] good jurors “indicated would not be ingly, Kandies had the burden of showing case,” 167, type this id. at raises reason, race this neutral which was Nonetheless, suspicion.15 I conclude that clear, sufficiently specific and related to proffered reason was race neutral be- case, Batson, 97-98, 476 U.S. at discriminatory cause a intent is not inher- pretextual. This, however, Purkett, explanation. ent in this Kandies failed to do. 115 S.Ct. 1769. Because the State proffered this neutral race reason that State’s last reason for strik clear, ing sufficiently specific Mr. McClure—his lack and at least ar- of attentive Batson, guably case, ness—clearly related to the Batson. is satisfies It a race 97-98, clear, U.S. at neutral reason that sufficiently specific establishing juror’s the burden of pre- that it was related to the case. A textual, which clearly pertinent do. attentiveness is failed to Kan- and vital ly burden, important dies could have his to a capital ju met for exam- case because ple, by being that rors are to establishing prosecution asked make a decision only discussed between life and prospective African Ameri- death. jurors can High with the Point Police De- 6. Campbell Mr.

partment or that the High Point Police Department’s solely assertions were based response In to Batson Kandies’s on race. challenge, prosecutor stated that he 15. pro possibility Unlike four seven history other or of criminal when ex spective plaining African American that striking it its reasons for Ms. Rawlin- struck, the State not history did cite criminal son and Mr. McClure. “worried was Hines Mr. Hines because to strike Mr. challenge peremptory a used of in- his loss employment his about Campbell because: about thought never ha[d] [H]e .... come in the not believe did Campbell] [Mr. indi- records .... [and] penalty the death considering [it] that penalty, death for driv- prior had convictions he cate that I case in this punishment possible ais driving [sic] while impaired ing while quali- be a he would that feel just didn’t date.” his birth under revoked license not It would case. in the juror fied prof- the State’s to response In 605. J.A. tobe answer would matter what re- counsel reason, trial Kandies’s fered Fur- law. following the about question to the access requesting motion a that newed check indicates thermore, a record or, in the by the State upon relied has records Campbell Fred named person to pertaining alternative, conviction, that records robbery law common prior proceed- part made feel I didn’t Mr. Hines here a file without but this denied trial court challenge record. ing’s to enough evidence ... I[had] Batson Kandies’s and overruled request point. him [on] it the time that that at noting challenge, above, that, as discussed Given 583. J.A. Hines, State Mr. struck peremptorily “the that has held (1) African American another accepted had sentencing capital from exclude may State peremptorily then struck was juror, who whose veniremen ‘class’ of juries that African (2) a second Kandies; accepted im substantially or prevent would views peremptorily juror, who was American duties of their the performance pair (3) Kandies; accepted challenged their instructions with their accordance during the juror American African third 5,n. at 424 U.S. oaths,” Wainwright, was Mr. Hines that proceeding same prof that the State’s I find S.Ct. court found trial Accordingly, the struck. Batson reason satisfied race neutral fered that show failed that Kandies clear, sufficiently specific was it because pretextual. was reason proffered 97-98, State’s U.S. to the case. related Thus, Kandies S.Ct. to the deference great I accord Because this reason establishing burden pur regarding determinations court’s to do attempted he which pretextual, Hernandez, 500 discrimination, poseful he Campbell stated Mr. noting that cannot, I despite law to follow be able would Kan me, conclude before the record This ar penalty. to the death opposition improperly challenge Batson dies’s that the however, fails establish gument, trial court. by the overruled peremptorily reason proffered State’s be pretextual Campbell striking Mr. Mr. Wilson conscience, could, good juror “a cause Batson Kandies’s response un yet be law and uphold the swear it struck asserted the State challenge, be dogmatic ... maintaining aware a record “has because Wilson Mr. pre would penalty death about liefs impaired, while driving driving, reckless Morgan, doing so.” from her him or vent injury to checks, [sic] two four worthless 735, 112 2222. S.Ct. assault, and simple a property, personal Mr. Hines In J.A. gun.” a by pointing assault neu race proffered to the State’s response Batson to Kandies’s response In re counsel trial reasons, Kandies’s tral exer that it asserted the State challenge, the to response made the motion newed Mr. to remove strike peremptory cised Hines, challenge jurors peremptory similarly to Mr. situated to Ms. Oliver that State’s ie., the the coun- requested accepted. access to records relied State Kandies’s trial jurors only pointed accepted by sel to upon by the or that the records the State pertaining part State that had contravened the court’s in- to Mr. Wilson made watching structions about proceeding’s record. The trial court television and listening to reports on the same that radio about the case request denied bases concluded, previously it had done so and whereas the State struck Ms. Oliver be- (1) grounds having hearing on the that it overruled cause she was trouble same (2) challenge failed to to Kandies’s Batson to the removal adhere the court’s Hines, I Accordingly, instructions. find that Kan- proffered Mr. the State’s pretextual. disparate dies’s Accordingly, argument reasons were treatment fails court, and thus conclude because the trial court’s determination re the trial garding purposeful given regarding purpose- discrimination is whose determinations deference, Hernandez, deference, ful great great discrimination merit 500 U.S. Hernandez, 365, 1859, 365, 111 S.Ct. I 500 U.S. at conclude 1859, overruling by overruling trial court did not err Kan did not err Kandies’s to challenge peremptory challenge dies’s Batson Batson to peremptory re- removal Mr. Wilson. moval of Ms. Oliver.

9. Ms. Oliver C.

During the sum, selection of alternate In I while have serious doubts jurors, peremptory the State exercised a regarding some the “race neutral” rea- challenge to remove Ms. Oliver. re State, proffered by sons I find sponse, Kandies’s trial counsel raised a unreasonably state court did not conclude challenge. Batson After the court found that Kandies failed to requisite make the showing that Kandies had made of a showing that proffered the State’s reasons prima case, discrimination the State for peremptorily striking prospective nine facie asserted that it struck Ms. Oliver because jurors African pretextual. American were “having she ... hearing trouble certainly

because she didn’t listen to V. [the watching court’s] instructions about t.v. or We hold that the state court was not listening to radio broadcasts about concluding unreasonable that Kandies’s ease.” [the] J.A. 969. To rebut counsel, trial despite not retaining miti- assertion, State’s Kandies’s trial counsel gation expert or specifically inquiring noted the State had accepted Cauca abuse, about sexual thoroughly childhood jurors sian American who had also contra investigated background Kandies’s for mit- vened court’s instructions about igating evidence thus did not render watching television or listening radio ineffective during penalty assistance broadcasts about the case. phase. We also hold that the North Car- disparate While the treatment simi olina Court’s conclusion that the larly prospective jurors situated of differ properly court overruled Kandies’s ent pretext, races can be used to establish challenges perempto- Batson the State’s Cockrell, Miller-El v. ry 343- removal of nine African (2003), 154 L.Ed.2d contrary American neither counsel, Kandies’s trial challenging nor clearly an unreasonable application of Oliver, point removal Ms. did not Accordingly, established federal law.

479 in- unnecessary. investigations lar habeas of Kandies’s denial court’s district case, not particular a decision effectiveness petition directly for assessed must be investigate to AFFIRMED. all the circumstances.” in reasonableness 691, 2052. Strickland, 104 S.Ct. at U.S. 466 concurring Judge, MICHAEL, Circuit un- “reasonableness must measure Courts judgment: in the Id. at norms.” professional prevailing der affirm the to judgment concur in I Bar The American 2052. 688, 104 S.Ct. Jeffrey C. Kan- denial court’s district describing the standards Association’s corpus. habeas for writ petition dies’s of. determin- “guides are to of counsel duties to I vote why explain to I further write Here, Id. is reasonable.” what ing assis- ineffective Kandies’s deny relief Appointment for the Guidelines ABA’s my agree I claim. of counsel tance Penalty in Death of Counsel Performance unreason- not it was colleagues two client in- guidance for specific offer Cases the state for law of federal application able “As cases. soon penalty in death terviews was not to conclude court should,” among counsel appropriate, as is in- to failure his counsel’s prejudiced “[cjollect rele- information things, other sexual of childhood into his quire history trial in- sentencing phase vant however, inquire, failure This abuse. family and to: ... limited cluding, but not per- that counsel’s conclusion compels sexual or (including physical, history social deficient; I constitutionally formance abuse).” Guidelines ABA emotional rea- court the state disagree therefore Performance Appointment concluding law in federal sonably applied Penalty Cases Death in Counsel otherwise. added). The 11.4.1(D)(2) (1989) (emphasis court unrea- state that the I hold would my colleagues overlook court and state law be- Amendment Sixth sonably applied standard. crucial defense Kandies’s no member cause application unreasonable It was an he had him whether to ask bothered team to conclude court the state Strickland Defense child. as abuse sexual .a suffered counsel of Kandies’s performance that the an “obli- have case capital in a lawyers Counsel deficient. constitutionally investigation thorough to conduct gation investigation background charge Williams background.” the defendant’s investigated “never 396, admitted 362, 120 S.Ct. 529 U.S. Taylor, v. miti- possible aas abuse] sexual (2000) 1 ABA (citing [childhood 389 1495, L.Ed.2d 146 utter Counsel’s J.A. factor.” 4-4.1, gating com- Justice for Criminal Standards specifically area into an inquire ed.1980)) failure (2d (emphasis 4-55 mentary, p. good ais guidelines the ABA mentioned can investigation added). background A consti- performance indicator that treason- extent “only to the limited Strickland, 466 See tutionally deficient. support judgments professional able ” Additionally, 688, 104 S.Ct. Smith, 539 U.S. v. Wiggins [ ].’ limitation charges against nature of 2527, L.Ed.2d 533, 510, 123 S.Ct. inquire counsel prompted have Washing- should (2003) Strickland (quoting aas sexually abused been he had 2052, 80 whether ton, 466 U.S. added). Wiggins, See child. (1984)) (emphasis L.Ed.2d investiga- scope of (holding the duty to S.Ct. words, has counsel “In other available of what light unreasonable tion make or to investigations make reasonable defendant’s about revealed records particu- that makes decision a reasonable childhood). Kandies was accused of rap- failure of Kandies’s counsel to conduct ing murdering Osborne, Natalie his sort of inquiry possible into childhood sex- son’s four-year-old half-sister, circum- ual abuse amounted constitutionally de- stances that the prosecution obviously performance, ficient and the state court’s (and did) would use to press for the death conclusion to the contrary is objectively penalty at sentencing. Because statistical unreasonable. evidence shows that men sexually who My two colleagues conclude that Kan- abuse children were often victims of sexual dies’s counsel made a concerted effort to themselves, abuse counsel should have undertake a thorough investigation of Kan- been particularly vigilant in searching for background dies’s for any evidence mitigating evi- Kandies had been sexually dence and that abused as a child. thus cannot estab- lish that his performance counsel’s The state court did not find—and there objectively 471; unreasonable. at Ante is no evidence to support such a finding— post at 490-91. support of their sepa- that Kandies’s counsel made a “reasonable conclusions, rate my colleagues note that professional judgment[ when ]” he failed to Kandies’s counsel conducted in- numerous anyone ask whether Kandies had ever terviews with defendant, friends, been sexually Strickland, abused. See members of his family, and U.S. at mental health 104 S.Ct. 2052. only The professionals. 471; explanation Ante at post provided counsel at 485. for this fail My colleagues ure was further during open-ended observe that Kan- inves tigatory dies’s counsel presented interviews subject thirty-three “the miti- gating child[hood] sexual which factors to jury abuse Mr. Kan that the may dies have suffered was accepted twenty-one never raised” those factors. by anyone. Thus, J.A. counsel, 471; Ante like at post at Likewise, my colleagues, ante at 470-71 post state court reviewed the mitigating evi- 489-90, court, and the state 1381-82, J.A. presented dence by counsel and concluded attempts to blame being those interviewed that “considering all [the] circumstances for not volunteering that ... performance counsel’s was not been sexually However, abused. the ABA objectively unreasonable.” J.A. 1383. guidelines and common sense dictate that My colleagues and the state court focus

it is counsel’s responsibility to inquire into wrong issue. question is not specific areas that might prove useful in whether counsel made overall mitigation. concerted Counsel expect cannot ac effort to investigate Kandies’s background. cused or his family and friends to know Rather, question what is partic- whether “a sorts facts in the accused’s back ular ground decision not might to investigate” be relevant is “rea- sentencing. Moreover, it sonable[ ] all unrealistic to circumstances.” assume Strickland, facts going mitigation are —facts painful added). often (emphasis to discuss because may While they counsel seems to involve abuse or have emotional conducted a meaningful trauma —will be investigation freely volunteered in open-ended into aspects certain inter back- Kandies’s views. open-ended While ground, there interviews is nothing to suggest questions have place, their no lawyer could counsel’s decision to conduct no investiga- expect to uncover all potentially useful in tion into an entire of potentially area miti- formation unless he explores important gating evidence was in[ ] “reasonable all mitigation terrain with specificity. The the circumstances.” Indeed, Id. counsel recommendation, was Kandies unanimous have “would that he his affidavit in admits ” appeals direct His to death. sentenced history of sexual Kandies’s pursued his bid for collat- as was unsuccessful if he were factor mitigating possible as a abuse court. state in Carolina relief North eral (emphasis J.A. it. about had known ac- filed this federal subsequently it for Kandies about added). not know did Counsel 28 U.S.C.A. relief under habeas tion for of Kandies’s investigation reason: one (West The Supp.2004). 1994 & § 2254 unreasonably limited. was background for application court denied district a hired counsel Kandies’s The fact relief, appeals denial and Kandies psy- forensic and expert abuse substance forth be- reasons set For the this court. not al- does to evaluate chologist court’s affirm the district low, I would perform- that counsel’s my conclusion ter I concur relief, and thus of habeas denial because constitutionally deficient ance was Gregory’s Judge reached in result if he had asked expert neither however, be- separately, I write 1371, opinion. J.A. a child. as sexually abused been § 2254 to the state my application cause reached Court Supreme The dif- claims of Kandies’ disposition court’s reasoning Wiggins, conclusion same my col- from that substantially fers psychologist” a to hire decision “counsel’s Gregory. Judge league interviews “clinical psychologist’s and that meetings defendant], as as well [the with I. members,” family defendant’s] [the with of [counsel’s] extent on the light no “sheds thor- are recounted facts pertinent no indica- there was because investigation” North Car- from opinion in the oughly investigated oth- psychologist tion that re- on direct issued olina history) of the (such social as er areas view: background. defendant’s lived Asheboro Patricia Craven Natalie, daughter, four-year-old her with Jeremy, ages Strickland’s sons, Zachary transform My colleagues her (with deference one, due respectively. [Kandies] objective inquiry six and actions) into father. Jeremy’s for his justifications fiancé counsel’s Craven’s of miti- resi- separate a investigation had counsel’s Although [Kandies] rule that a constitutionally away miles ten can never approximately gating factors dence mitigation stayed Craven Randleman, on some with puts if he often deficient up with can come in Asheboro. apartment and a court her evidence a blun- to excuse justification theoretical April Monday, 20 Easter On contravenes approach der. Because Nata- disciplined Craven [Kandies] only that Strickland, hold I would candy by Zachary’s Easter eating lie conclusion court’s state her room stay in her to requiring perform- his counsel’s prejudiced not Na- day. Craven saw remainder application an unreasonable ance was day, but throughout periodically talie law. of federal 4:30 4:00 and alive between her saw last left the p.m., [Kandies] 4:45 Around p.m. Judge, concurring: TRAXLER, Circuit store. grocery go to the apartment eve- 7:30 that until return did not He found Clayton Kandies Jeffrey his tardiness attributed ning. He first-degree murder jury of the guilty by me- couple who elderly helping Lynn Natalie four-year-old rape Winnebago. their with problems chanical jury’s In accordance Osborne. home, Once began fixing [Kandies] On Wednesday, 22 April, Craven and pizza for the children. When it was went [Kandies] to the Asheboro Police ready, Zachary Department he told to call for for questioning.... Nata- Upon Zachary [Kandies’] lie. return to apartment When did not find Natalie [hav- ing interrogated been bedroom, in her longer much [Kandies] and Craven than Craven], Craven asked began him if he looking for her. One knew neighbor anything about ... Natalie. [Kandies] told Craven that he had noticed Natalie responded by telling Craven that he had outside playing afternoon, sometime that hit Natalie with his truck when he was but no one seeing recalled her since that leaving go grocery store.... while, time. After called the [Kandies] [Kandies] said he panicked because he Department Asheboro Police to report had been drinking. picked He Natalie Natalie An missing. extensive search up and her took to the house in Randle- for her conducted night, was but man to clean her off and see how badly without success. she was hurt. During the drive to Ran- Earlier that evening, around 7:00 dleman, said [Kandies] that Natalie was p.m., ... [Kandies] entered a small con- making gurgling noises and that her venience store located about one-half head did right. not look After trying to mile from the Craven residence. Caro- clean her up, [Kandies] concealed Nata- Wood, lyn clerk, testified that at that lie and her clothes a garbage bag and time, [Kandies] was complaining about put bag in a bedroom closet. [Kan- hurting. hand He told Wood that he then got dies] in his truck and took his gotten had fight into a with his brother. time returning to Asheboro. Wood noticed that the hand was begin- Craven called the police immediate- ning to suggested swell and that [Kan- ly.... gave [Kandies] details as to the let a dies] medical technician hap- who location of Natalie’s body and signed pened to inbe the store look at his hand consent to search forms for the Randle- to see if it was broken. [Kandies] de- man house.

clined and immediately left the store. police The searched the Randleman residence and found body Natalie’s in a Later evening, close to midnight, plastic bag, buried pile under a [Kandies] returned the store to ask if clothes carpet pieces in a bedroom Wood had seen Natalie ... and told her closet. A bloody playsuit and a bloody to call police if she saw the girl. little pair of panties, both turned inside out, At time, Wood gar- observed black were also found in the bag.... bage bags in the back of [Kandies’] Clark, Dr. Thomas patholo- forensic truck. gist, performed an ... autopsy [and] Tuesday, On 21 April [Kandies] found two lacerations to top of the agreed to accompany officers to his resi- head which he characterized as blunt- dence in Randleman to look for Natalie. injuries. force He also found lacerations The police surmised that perhaps Cra- on right side of the head and abra- ven and [Kandies] hidden Natalie at sions on the left side of the head and on the Randleman residence because Cra- the front neck; of the there was evi- ven had been a custody dispute over dence the skull had been fractured. Natalie husband, with her former Ed There multiple were bruises on the back Osborne. police The through looked sides; and both the bruises were small house but did not find Natalie. and rounded and had a distribution and on the basis hand. strike an adult suggestive shape Kentucky, of Batson violation race in pelvic to the injuries found Clark L.Ed.2d on both bruises There were region. North Car- The (1986), progeny. its full of vagina, which of the sides rejected Kandies’ vagina olina opening blood. dis- “the State’s claim, holding a laceration Batson and there patulous, jurors was based these long on each of inch missal of and an wide half-inch clearly were opined reasons vagina. Clark race-neutral which back wall responses indicative their individual were injuries supported these Kandies, had oc- they dire.” during voir assault S.E.2d.at sexual death. Court Supreme time of the States or about The United curred of cer- for a writ petition Kandies’ denied a state- denied [in .... [Kandies] all as well as Batson on the claim to tiorari sexual anything doing police] ment to appeal. See on direct claims raised taking Nata- other He remembered Natalie. 894, Carolina, 519 U.S. v. North Kandies bath- her in the house, putting to his lie (1996). 237, 167 136 L.Ed.2d see her clothes tub, taking off and time At that hurt. was badly she how appro- motion for filed a next Kandies ap- extensively but bleeding Natalie (“MAR”) in North Carolina priate relief moving. [Kan- and alive to be peared alia, that Court, inter alleging, Superior the hot handle could that he dies] stated failing to dis- for was ineffective counsel Nata- may strangled have situation sexually abused that he was cover lie. denied court MAR The state early age. 419, Kandies, S.E.2d N.C. 467 recon- 342 for claim. On v. on this State relief remand Kandies (1996). jury found of North The Supreme the 73-74 sideration bases: murder on two its court affirmed first-degree Carolina, MAR state guilty the (2) premeditation sub- (1) order, court supreme murder and the felony earlier found jury petition deliberation. Kandies’ sequently denied Kandies, rape. first-degree v. Kandies See guilty of certiorari. writ State (1999). 539 S.E.2d 350 N.C. sentencing proceedings, the Following (cid:127) circum- aggravating two jury found 're- for habeas applied Finally, Kandies to, (1) committed that Kandies stances: pursuant court in district lief de- first during the commission murder numerous raised 2254. He § U.S.C.A. (2) the murder rape, and gree by the was denied claims, of which each atrocious, cruel. heinous, especially Lee, 252 Kandies court. See district mitigating statutory five offered (M.D.N.C.2003). issued We F.Supp.2d 252 three. jury found factors, of which under appealability a certificate eighteen jury found Additionally, the only (West Supp.2004) § 2253 U.S.C.A. fac- nonstatutory mitigating twenty-eight (1) the prosecu- claims: of these two unanimously recommended tors. The strik- by peremptorily Batson violated tion death, and sentenced that Kandies on race jurors based' ing accord- court sentenced on Supreme Court Carolina that the North ingly. rejected the unreasonably review direct (2) court MAR claim; Batson Carolina the North appeal

On direct rejected Kandies’ ineffective unreasonably is- raised several Court, Kandies claim, which of counsel assistance prosecu- that the claim sues, including the to discover attorneys’ failure on to based challenges peremptory its tion used background Kandies’ of sexual abuse for but unreasonably applies that principle to use a mitigator as during sentencing the facts of prisoner’s case,” Williams, phase. 529 U.S. at objec- An tively application “unreasonable of federal For suggested the reasons my analy- law is from different an incorrect or erro- below, sis I Judge concur with Gregory application neous of federal law.” Id. at is not entitled to habeas re- 412, 120 S.Ct. 1495. “[A] federal habeas lief, although I would apply standard may court issue simply writ be- prescribed by review Congress cause that court concludes its indepen- § 2254 differently. judgment

dent the relevant state- II. court applied decision clearly established federal law erroneously or incorrectly. Because Kandies’ federal claims have Rather, that application must also be un- adjudicated been the merits 411., reasonable.” Id. at 120 S.Ct. 1495 North court, Carolina state we are con- strained in our review the standards set 2254(d). §

forth in Under provision, III. federal precluded habeas court from I begin with Kandies’ claim that his granting habeas relief unless it concludes defense counsel was constitutionally inef- that the state adjudication court’s of a fective for inadequately investigating his claim “resulted in a that decision was con- background and discovering he that had trary to, or involved an ap- unreasonable been sexually child, molested as a and for of, plication clearly established Federal failing present such as mitigat- evidence law, as by determined the Supreme Court ing during penalty phase of his trial. of the United States” or “resulted in a decision that was based on an unreason- A.

able determination of the light facts in presented evidence in the State court The Sixth requires Amendment that proceeding.” 2254(d); § 28 U.S.C.A. see all prosecutions, “[i]n criminal the accused also Taylor, 362, Williams v. 412, 529 U.S. enjoy shall right ... have Assis 1495, (2000). 146 L.Ed.2d 389 tance of defence,” Counsel for his A state court decision is “contrary to ... VI, Const. amend. and that such assis clearly law, established Federal as deter- effective, tance be see Strickland v. Wash by mined Supreme Court,” ington, U.S.C.A. 668, 686, 2052, 104 S.Ct. § 2254(d)(1),“if the state (1984). court arrives at a 80 L.Ed.2d 674 In order to estab opposite conclusion to that by reached lish an ineffective assistance of counsel question th[e] on a claim, law or if the was required Kandies to establish state (1) court decides a case differently than that his representation “counsel’s fell th[e] Court has on a set of materially objective below an standard of reasonable indistinguishable facts,” Williams, ness,” by measured the “prevailing profes 413, U.S. at 120 S.Ct. A 1495. state court norms,” sional 688, id. at 104 S.Ct. decision an (2) “involve[s] unreasonable appli- “that there is a proba reasonable cation clearly of[ ] law, established that, Federal bility but for counsel’s unprofessional as Court,” determined the Supreme eiTors, the result of the proceeding would 2254(d)(1), § U.S.C.A. if the state court different,” have been id. at 104 S.Ct. decision “identifies the correct governing 2052. “Unless a defendant makes both legal principle from th[e] Court’s decisions showings, it cannot be said convic- for baby-sit [her] always wanted uncle] from resulted sentence death tion buying gifts always he “was why son” adversary process in the breakdown years old. was six when he for [Kandies]” Id. at unreliable.” the result renders noted that J.A. She or eleven was tén until he the bed wet B. to let her was reluctant old and years undressing. dressing and him with assist represent- was trial, Kandies During his attorneys, Mr. court-appointed two ed affidavit. also submitted Dunn Mr. as lead appointed Bell, was who Clark as Dunn, “served he Mr. According to Dunn, who counsel, Mr. Scott chair counsel” second court-appointed as second- Bell to assist Mr. appointed “primary responsibility Bell, Mr. before MAE In his counsel. chair phase mitigation preparation he re- court, asserted state Dunn, dur- Mr. 1373-74. the trial.” J.A. counsel be- assistance ineffective ceived preparations, course ing the the mini- (1) not meet Mr. Dunn did cause Mr. Kan- interviews numerous the rules required qualifications mum family, friends and dies, of his members indigent of counsel appointment regarding professionals mental health (2) mitigation defendants; Dunn’s Mr. back- in Mr. Kandies’ items possible inadequate because investigation as miti- presented could be ground had been to discover failed course During the gating factors. child. young aas sexually molested discussionsf,] of child subject these claim, Kan- ineffectiveness of support his may Mr. which abuse sexual by Mr. completed affidavits submitted dies raised, and [he] never was suffered have mother, himself. Dunn, his as, possi- this area investigated never affidavit, he was Kandies’ According to factor. mitigating ble by his molestation of sexual the victim confirms part, Kandies For his 1374. J.A. Kandies, was he six when uncle, Ronald for preparing of the course “[d]uring that:. stated years old. Kandies Mr. Bell Dunn and Mr. trial,” with he “met took abuse of sexual incidents [t]hese “[a]t occasions,” avers but on various York living in New I was when place investigation during no time 15- uncle, an adult who was My State. was [he] case [his] of stage preparation my me, touch would than years older any- áttorneys by [his] questioned ever He would hand. with his parts private if had been [he] behalf their body acting on parts. private me touch make also or' sexual abuse childhood of the victim me and take with also showers would He that “[h]ad states crime.” other My the shower. me while fondle of told have would [he] asked been [he] as GI toys such buy me would uncle ... when uncle by [his] molestation [his] tell get me in order Joes J.A. years old.” six was [he] doing me. was what anybody about haunted Kandies’ experiences rejected traumatic MAR court These The state de- life. my adult throughout representation legal me that his claim Dunn Mr. claim upon his based ficient no had knowl- Kandies’ mother J.A. qualifications minimum not meet did by his molestation sexual edge of Kandies’ appointment rules by the claim, required of Kandies’ learning Upon uncle. The defendants. indigent counsel been that she only could state she represented that Kandies noted court why [Kandies’ as to curious “somewhat c. by (Mr. competent two trial counsel Bell Dunn) and Mr. and that Dunn’s limit- Mr. begin I with the state court’s determina experience ed did not perform- result in a tion that Kandies failed to demonstrate ance that fell applicable below stan- that his representation “counsel’s fell be Additionally, dards. that, court noted objective low standard of reasonable even if it were to assume that Mr. Dunn’s ness,” as by measured the “prevailing pro appointment contrary to the state bar fessional Strickland, norms.” 466 U.S. at rules concerning appointment of counsel 688, 104 S.Ct. 2052. capital cases, Kandies failed to demon- strate that he was prejudiced in his de- In preparation for mitigation phase fense as a result. case, attorneys Kandies’ conducted The MAR court rejected Kandies’ numerous interviews Kandies, mem- claim that his trial attorneys’ performance bers Kandies’ family, and several of was objectively they unreasonable because Kandies’ childhood and current Mends in failed to discover evidence of sexual moles- to prepare order a family and social histo- tation. The court noted subject that the ry. addition, the attorneys enlisted the child sexual abuse now claimed Kandies support two mental professionals health was never raised Kandies or any of the regarding possible items in back- Kandies’ other numerous witnesses interviewed ground that presented could be mitigat- as attorneys in preparation for the mitiga- ing factors. As a efforts, result these case, tion and that the trial attorneys were Kandies’ attorneys presented the testimo- diligent and thorough in presentation ny of eight lay witnesses and two expert of mitigation case, as evidenced by the during witnesses the sentencing phase, de- number and nature of the defense wit- veloping a strategy of mitigation that in- they nesses were able to bring to trial.1 cluded, among other things, evidence court state also concluded that trial Kandies’ difficult childhood and early counsels’ failure to specifically ask Kandies onset and progressively pathological na- whether he had been the victim of child- ture of Kandies’ substance abuse and de- abuse, hood sexual in the any absence of pendence. indication or suspicion been, that he had “was not per During se ineffective this presentation, of assistance Kandies’ moth- counsel, and, considering er circumstances, testified all that her husband physical- trial ly counsel’s performance violent towards her and drank alcohol objectively unreasonable.” J.A. excessively, Kandies, Ad- and that even at a ditionally, the court young age, concluded that Kan- would attempt protect to her dies failed to “demonstrate the existence of his sister and from the man he then be- a reasonable probability that the lieved outcome was his father. Ms. testi- Kandies phase the sentencing that, the trial would fied when Kandies was approximately have been different had trial old, counsel” dis- 14 years and she her husband planned presented covered and his claims of child- to separate and Kandies learned for the hood sexual abuse. J.A. 1383. first time that her husband was not his court, As noted the state MAR place coun- Kandies’ employment where he fre- presented sel testimony of Kandies' quently bought moth- significant beer, quantities of er, three of Kandies' friends from South expert Car- in spent substance abuse who nu- olina, Maine, landlady Kandies' former in Kandies, merous interviewing hours and a driving former instructor and coworker of psychologist forensic spent who numerous Kandies, the clerk from a beer store near interviewing hours testing and Kandies. educational, history. She family and cial, fa- biological that his father and biological September in Kandies interviewed to Ms. According deceased. ther was approximately 1993 for in November and significantly Kandies Kandies, upset this time, psy- and conducted hours each three According to Ms. long time. and for testing, and testing, intellectual chological school high Kandies, got drunk neurolog- screening for neuropsychological and alcohol a 6-week complete to and reviewed Dr. Coleman impairment. ical eventu- and Kandies program, drug abuse Kandies’ reports, investigative police year. his senior of school out ally dropped records, and school, and military, work acquaintances and other friends Kandies’ also consulted She statements. witness abuse. history of substance confirmed testimony presented She Dr. Glover. with Glover, psychologist a clinical Dr. Brian her vari- with had discussed that Kandies disorders in addictive specialty awith with experienced he had problems ous Depart- faculty with member a clinical his army in the when enlisted fighting University at the Psychiatry ment of armed ser- from the discharge ultimate Hill, ap- Chapel Carolina North indicating that testimony vices, no but testi- Glover Dr. for the defense. peared history of sexual discussed interviewed Kan- personally he fied that opinion her. It molestation prior three occasions separate on dies suffered that Kandies Dr. Coleman hours, six trial, approximately a total of alco- clinical disorders: primary from two acquain- of Kandies’ three and interviewed disorder personality and a dependence hol ob- the information to collaborate tances exhibiting passive-aggressiveness, traits his social regarding from Kandies tained immaturity. classi- She impulsivity, trial, Dr. At abuse. history and substance or men- having emotional Kandies as fied testimony re- extensive presented Glover that, in also testified tal disturbances substance history of Kandies’ garding ability to judgment and his opinion, her years 12was abuse, began when he which evening on clearly impaired were think adolescent during his old escalated and murder. rape of Natalie’s that, testified Dr. years. Glover right to to exercise declined se- long-standing, Kandies had opinion, of his phase mitigation testify during constituting a alcohol, dependence vere only make trial, instead choosing Dr. Glo- emotional disturbance. mental or in allocution: following statement Kandies’ that, upon based ver testified everybody apologize just I want approximate- had drunk statement life, and part of Natalie’s that day of Natalie’s on the beers ly twelve Ed, Pat, father her her mother that’s murder, the effect and rape and just I want and grandparents, her and good make ability to upon his quantity I am for sorry you deeply how tell to his control and judgments decisions I have done, grief I have what that Kandies’ emotions, opinion his it was change I can’t through. you all put his criminality of appreciate ability to I I could. really wish I nothing, and evening that on the impaired actions your it find you all can just hope raped killed. Natalie I have what me for forgive hearts Coleman, psy- forensic Dr. Claudia all. That’s done. defense in who assisted chologist J.A. case, also mitigation preparation little review, takes habeas interviews, including On extensive conducted thoroughness general so- issue to Kandies’ pertaining questions asking ” the mitigation investigation by conducted Strickland, able’ (quoting 466 U.S. at 688, 104 2052)). his attorneys. appears And there to be S.Ct. no dispute that mitigation none of the wit- In order to establish an ineffective assis- nesses, himself, nor Kandies ever men- claim, tance of counsel re- anything

tioned about the sexual molesta- quired to demonstrate that the actual rep- allegedly tion upon inflicted Kandies as a resentation he received from his attorneys by Rather, child his uncle. spe- Kandies’ objective “fell below an standard of rea- cific claims of quite ineffectiveness are sonableness,” by as measured “prevail- narrow. He asserts that attorneys’ his ing professional Strickland, norms.” performance fell pro- below the prevailing 688, 104 S.Ct. 2052. by As noted norms, fessional court, and that the state court the state Kandies was represented unreasonably contrary, concluded to the two and competent licensed court-ap- (1) pointed because Mr. Dunn trial attorneys. lacked the neces- The limited expe- sary rience of Mr. Dunn experience and alone failed seek a miti- demonstrates nothing about the gation investigator competency of the rep- contravention of the resentation that Kandies received ABA from Guidelines for capital litigation, and attorneys. Thus, (2) clearly failed to Mr. unreasonably Dunn failed to spe- demonstrate that Mr. Dunn’s expe- limited cifically ask Kandies whether he had in capital rience murder trials resulted in a sexually been molested as child in order performance that fell applicable below the to elicit that withheld information. standards or it resulted any preju- him, dice to state court did not unreasonably conclude to contrary. I need tarry long with Kandies’ first Kandies’ claim that attorneys unrea- claim, i.e., that representation he re- sonably failed to enlist the assistance of a ceived was constitutionally ineffective, and “mitigation investigator” is unavailing. MAR state court unreasonably According Kandies, guidelines the ABA concluded to the contrary, because his sec- required the attorneys to enlist the assis- ond-chair attorney defense lacked the nec- tance investigators and other assistants essary qualifications and experience try and of “experts where it is necessary or a death penalty and, result, case aas also appropriate” for the preparation of the failed to seek a mitigation investigator as defense. As noted by court, the state recommended the ABA guidelines gov- as discussed in below, more detail Kandies’ erning death penalty Wiggins cases. attorneys Cf. enlisted the aid testimony Smith, 2536- law enforcement officers and two mental (2003) 156 L.Ed.2d 471 (noting that health professionals during the mitigation “the standards for capital defense work phase of the case including, most notably, articulated the American Bar Associa- a forensic psychologist with extensive ex- (ABA)” tion have long been referred to “as perience in capital other criminal tri- ‘guides to determining what is reason- als.2

2. The record is unclear as to whether Kandies experience Dunn's gov- under the state rules "mitigation raised this investigator" erning claim be- the appointment of counsel for indi- or, matter, fore the state MAR court gent However, for that defendants. the state does not whether guidelines he raised the ABA sup- assert specific that these more claims are port of his ineffectiveness at event, claim all before procedurally any barred. In I have no that court. opinion The state appears court de novo that Kandies concluding trouble to indicate that Kandies took issue with Mr. failed to demonstrate that his counsel was every case.” sentencing at evidence 2. 2541. 123 S.Ct. at Wiggins, Kandies’ to the heart

Thus, I turn presented the evidence Having reviewed unreason- i.e., court claim, the state that in support offered sentencing counsel at defense that his ably concluded claim, say I cannot fail- MAE of the state constitutionally ineffective not was adjudication of court’s he had the North Carolina whether ask him specifically to ing contrary to or an unreason- In a a child. this claim as molested sexually been governing Su- of these any capi- application that in able nutshell, asserts a is not This molestation, precedents. preme an at- child involving tal case to counsel failed con- or if he case in ineffective which deemed torney must be only a cur- or conducted any inquiry, duct ask whether specifically does not she family into the accused’s sory molesta- inquiry, of sexual history a has defendant history. See social so, as- background This a child. tion as Williams, 120 S.Ct. 1495 at fact 529 U.S. the “well-known” serts, because to failure uncov- sexually (concluding counsel’s often are offenders child sex mitigating evi- voluminous present er and as children. molested justified could not be sentencing dence at cases, attor- defense penalty In death counsel had because a tactical decision as to reasonable undertake neys required are a to conduct obligation their not “fulfill[ed] evi- mitigating possible into investigations defendant’s investigation of the thorough during the presented could be dence that at S.Ct. Wiggins, 123 background”); at 123 S.Ct. Wiggins, See phase. penalty that, [coun- whether deciding “in (noting 691, 104 Strickland, at 2535-36; 466 U.S. professional reasonable exercised sel] to make duty a has “[C]ounsel S.Ct. whether the “focus on we must judgment,” a rea- or to make investigations reasonable decision counsel’s supporting investigation in- particular that makes sonable decision evidence mitigating not to introduce ineffec- unnecessary. vestigations rea- itself background [defendant’s] to not case, decision particular a tiveness (internal marks and quotation sonable” directly assessed be investigate must omitted)). Rather, evidence emphasis circumstances, in all the reasonableness thoroughly counsel that Kandies’ indicates to of deference measure heavy applying so- Kandies’ investigated and competently Strickland, 466 U.S. judgment.” counsel’s the assistance history, and enlisted cial pre- is a “[T]here at same, in to uncov- order experts do to with- conduct falls sumption that ‘counsel’s or any childhood things, er, other among profession- range of reasonable in the wide ” mitigat- have might history that adolescent Ozmint, 339 Byram al assistance.’ it Indeed, process, through this ing value. Cir.2003) (4th (quoting 203, 209 F.3d had been ex- was discovered Strickland, envi- childhood dysfunctional posed to coun- 2052). require not does “Strickland step- an alcoholic which included ronment line of every conceivable investigate sel abuse and verbal father, stepfather’s his unlikely matter no how mitigating evidence mother, Kan- his towards physical abuse defendant assist effort would mother and his attempts protect dies’ re- Strickland sentencing. Nor does Kandies’ stepfather, from sister mitigating present counsel to quire defense unreasonable "experience” claim experience upon level of based ineffective investiga- mitigation one. retain his failure adjudication of the state court’s or that the tor discovery years his during adolescent own statements or actions. Counsel’s ac- not, this man stepfather was as he usually based, tions are quite properly, on believe, had been led to his father. Yet at informed strategic choices by made mother, no Kandies, time did Kandies’ nor defendant supplied by information any of the other witnesses advise defense In particular, defendant. what investi- counsel or experts retained to assist gation decisions are reasonable depends them in the preparation mitigating evi information.”). critically on such dence that Kandies had been the victim or suspected having been the victim of D. any or, matter, sexual abuse for that any I deny would also because, habeas relief physical abuse himself. Barnes v. Cf. view, my the North Carolina state court (4th Thompson, 58 F.3d 979-80 Cir. reasonably concluded that Kandies failed 1995) (holding that defense “may counsel establish he was prejudiced

rely on the truthfulness of his client and present failure to the evidence of his al- those whom he interviews in deciding how leged sexual molestation to the jury. pursue investigation”).3 Although concluding that Kandies’ trial sum, the North Carolina court held counsel were not ineffective in their inves- that defense counsels’ otherwise thorough tigation presentation of the mitigation investigation presentation mitigat- case, the state MAR court went on to ing evidence not rendered objectively reach this second prong Strickland simply unreasonable because counsel did analysis that, and concluded even if the not specifically ask if he had been attorneys’ failure to discover the sexual sexually molested as a child. I concur in abuse could be per- considered deficient the denial of federal habeas relief because formance, the “evidence of record affirma- I say cannot adjudication tively demonstrates that the failure pro- contrary to or involved an unreasonable duce evidence of childhood sexual abuse interpretation applicable did produce the prejudice that is a precedents. Wiggins, 123 S.Ct. Cf. requirement of reversal.” J.A. Spe- (“We at 2535 have declined to articulate cifically, the court determined that specific guidelines for appropriate attorney “failure to discover and present evidence conduct and have emphasized instead of defendant’s childhood sexual abuse does proper ‘[t]he attorney measure of perform- not demonstrate the existence of a reason- ance remains simply reasonableness under ” probability able the outcome of the prevailing professional norms.’ (quoting sentencing phase of the trial would have Strickland, 466 U.S. at been different had trial presented counsel 2052)); Strickland, 466 U.S. at such evidence.” J.A. 1383. (“The S.Ct. 2052 reasonableness of coun- sel’s actions may be determined or sub- In order to establish a Sixth Amend- stantially influenced the defendant’s ment ineffective assistance of counsel 3. As noted the state MARcourt: testified on. anything defendant's behalf said experts Neither of the two psychology being about defendant the victim of sexual who interviewed evaluated defendant abuse as a child. On the one occasion mentioned testimony anything in their indi- personally when defendant addressed the cating that defendant had told that he them jury, he anything did not state being about had been the victim of sexual abuse as a sexually abused as a child. Furthermore, child. neither defendant's J.A. 1379. mother nor of the other witnesses who the neck the front of on An abrasion to demon- required claim, Kandies was approxi- and wide measuring one-inch per- alleged deficient counsel’s that strate in- long In order inches and one-half mately defense. two prejudiced formance re- There was strangulation. prejudice, dicated manual demonstrate a reasonable is the rec- that there around “show discoloration some quired was unpro- that, counsel’s vagina, but tum, sides probability on both bruises proceed- the errors, the result canal. vaginal the deep fessional within blood and A reason- different. have been would ing Natalie that opined pathologist The sufficient a probability probability able injury to of blunt-force as a result died outcome.” in the confidence undermine con- lost probably she head. While the 2052; Strickland, 104 S.Ct. at blows, painful the after soon sciousness at 2542. 123 S.Ct. Wiggins, see caused injuries would have the none context, preju- to assess penalty death the immediately. beating stop heart to her the evidence “reweigh dice, must the court excruciating Therefore, it several was the totality of against the aggravation in actually died. before she moments Wiggins, evidence.” mitigating available “a requires Prejudice at 2542. light the evidence, in viewed This one at least that probability reasonable State, suffi- was to the favorable most a different bal- have struck would juror inference a reasonable support cient Wiggins, ance.” pain physical great Natalie suffered that beaten, brutally being aggravating result of as a dispute that would Few The to cause violence compelling. sufficient case was with raped in this evidence strangled so evidence and vagina, presented bleeding with in her jury was murdered a and raped scratched. brutally neck was forcefully that her on was found child. Blood four-year-old an inference supports It also tub, the bedroom floor and psycho- the bathroom dehumanizing and was murder the kitchen laundry floor, floor, room tes- pathologist The torturous. logically bedroom, floor, the floor between injuries oc- pelvic Natalie’s tified As home. bathroom, and den Kandies’ of death. the time at or near curred Carolina the North noted during the occurs a murder When Court, assault, sexual of a violent perpetration to show evidence tended the State’s and debas- dehumanizing unusually it is beaten, strangled, savagely Natalie Further, abused defendant ing. man whom by a sexually assaulted violated girl and a four-year-old trust discover- and trusted. When she knew jury ways. A reasonable multiple her in the bag buried ed, in a trash she was ter- experienced that Natalie infer could naked, closet, of a bloodied recesses the mo- confusion, anguish from ror, playsuit] [panties soiled her with her drove off the defendant ment autopsy showed of her. An top piled on breath. last truck until her two bluntforce had suffered that Natalie (citations Kandies, at 84-85 467 S.E.2d her head. top of to the lacerations capital omitted). conclusion At the fractured, and her head right side found, based sentencing phase, frag- separate bone seven there were during presented upon the solely evidence area, of which one in the ments murdered Natalie phase, guilt hem- and caused a the brain penetrated commis- engaged Kandies was while multiple bruises There were orrhage. mur- and that rape first-degree sides, sion neck, and chest. face, back, her heinous, der especially atrocious, was or that the defendant suffered person- from a cruel. (17) ality disorder; that the defendant dysfunctional (18) came from a family;

As a thorough result of the efforts of that the defendant as a counsel, however, defense child observed jurors found verbal physical abuse of proposed three of five his mother statutory mitigating (19) stepfather; his that eighteen circumstances and twenty- defendant was eight (20) the child of an nonstatutory alcoholic mitigating step-parent; circum- stances. that the defendant Specifically, jury of the suffered history members from a (1) (21) found depression; that the had signifi- defendant no that the defendant (2) cant history prior activity; criminal was reared an unstable environment. that the murder was committed while the short, In Kandies’ sentencing jurors defendant under the influence of men- heard and found of significant number (3) tal disturbance; or emotional that the factors, mitigating yet still unanimously capacity of the defendant to appreciate the found that mitigating circumstances criminality of his conduct or to conform his did not outweigh the aggravating circum- conduct to requirements of the law was stances and recommended a sentence of (4) impaired; that the defendant cried and death. The North Carolina MAR court expressed talking remorse when to Nata- determined that there was no reasonable (5) lie’s April 1992; mother on that the probability that have re- would defendant cried expressed remorse turned a different sentence recommenda- when talking to Officer on April Wilson tion had it been confronted with Kandies’ (6) 1992; that the defendant called the testimony that he was sexually molested at Asheboro Department Police speak to to age of six in the fashion described Officer regarding Wilson Natalie’s location his affidavit. light of the totality of the (7) prior arrest; to his that the defendant presented evidence at trial and in the state called the Asheboro Department Police to habeas proceeding, I cannot say that this talk to Officer Wilson acknowledge to was an unreasonable decision on its part. responsibility for prior Natalie’s death (8) arrest; that the defendant volun- IV. tarily right waived his to remain silent and The next issue is speak whether to an the North attorney or to have (9) attorney present; Court’s rejection of that the defendant Carolina Kandies’ made Batson claims voluntary contrary to, “was acknowledgments, of his or involved an responsibility for application of, unreasonable Natalie’s death Officer clearly Wilson Officer established Federal law,” on April Mclver “was (10) 1992; based on an that the unreasonable defendant was a chron- determination of ic, long-term (11) light the -facts in abuser; substance evidence presented the defendant in the State suffered court proceeding.” from acute sub- (12) abuse; 2254(d)(1) stance (2). § that the defendant prose- The U..S.C.A. childhood; (13) a troubled cution peremptorily the com- struck pro- several mission of spective the crime was jurors; out character African-American Kan- (14) defendant; for the dies contends defendant the State excluded was led to believe that his stepfather race, these based their which is his biological father until he was constitutionally twelve impermissible under Bat- years old son, and was told at time that his which teaches that Equal Protec- (15) dead; real father was that the defen- tion prohibits Clause the use of perempto- dant (16) never positive model; had a ry role strikes against a prospective juror on respect conclusion 85-86, court’s 106 state race.

the basis discriminatory intent there pre whether has Supreme Court peremptories of exercise for process prosecution’s the analytical three-step a scribed turn, In First, op the determination. is a factual claim. a Batson evaluating factual deter “must proceedings, strike habeas peremptory the federal of ponent pre pros the “shall showing by the state court facie minations prima amake chal correct,” and the peremptory “[habeas] has exercised to be sumed ecutor Hernandez of race.” of rebut the basis burden on shall have the lenges applicant 358, 352, 111 S.Ct. York, by U.S. 500 of correctness New ting presumption v. the (1991) (plurality). 1859, 395 28 114 L.Ed.2d convincing evidence.” clear has been showing Second, Miller-El, prima if a 2254(e)(1); 537 see § U.S.C.A. fade [must] the made, strike proponent “the 340, 123 1029. S.Ct. at explana race-neutral a forward with come law, the to North Carolina Pursuant 767, 765, Elem, 514 U.S. Burkett v. tion.” process dire begin the voir must State (1995) (per 1769, 131L.Ed.2d 834 randomly twelve individually questioning is curiam). explanation the long as As juror prospective members selected face, “the discriminatory on its inherently 15A-1214(d). § N.C. Gen.Stat. panel. See neu race deemed will be offered reason cause juror excused If prospective a 360, 111 Hernandez, at 500 U.S. tral.” a exercises State because the or removed S.Ct. immediately strike, the clerk peremptory has of the strike Third, proponent if the until continues replacement. a This draws “the explanation, a race-neutral proffered 12 in with the is satisfied prosecutor “the ... whether decide court must then trial box,” prospective the point which at the pur proved has of the strike opponent the defendant.” are “tendered to jurors Purkett, discrimination.” racial poseful indi- However, prosecutor “[u]ntil Id. Thus, 767, 115 S.Ct. 1769. at 514 U.S. satisfaction, make a chal- may cates regard persuasion burden “the ultimate peremptory or exercise lenge cause with, never rests motivation ing racial an any juror, whether strike challenge to the strike.” from, opponent shifts Id. juror.” replacement original or step third 768, 1769. The 115 Id. S.Ct. case, both capital Carolina In a North issue “pure court with the trial presents 14 are allotted the defendant the State and 364, Hernandez, 500 U.S. of fact.” jury selec- during challenges peremptory review, the on direct Even S.Ct. 15A-1217(a). § N.C. Gen.Stat. tion. See respect to dis findings with court’s trial is entitled party Additionally, “[e]ach sig are reviewed criminatory intent alter- for each challenge peremptory one findings such because deference nificant chal- any unused in addition to juror nate credibili turn evaluation “largely will on 15A-1217(c). § Gen.Stat. N.C. lenges.” not as well court “is ty” appellate Ran- decided jurors who selecting make court is to as the positioned used twelve case, prosecutor dies’ Miller-El credibility determinations.” strikes. peremptory allotted his fourteen Cockrell, jurors per- twelve Eight of the (internal (2003) quotation 154 L.Ed.2d were prosecutor struck emptorily omitted). true holds approach This marks com- racial final The African-American. review, where habeas more so all the African- two jury included position of stan extremely deferential we apply accepted prosecutor The Americans. See by statute. prescribed dard but Randies juror, above, a third African-American 2254(d). § As noted U.S.C.A. used peremptory Second, one challenges own argues the state juror. to excuse that Following the selec- court ignored other evidence of discrimina- tion of jurors, twelve parties tory intent, also se- including the statistical dispar- jurors. lected three alternate poten- ity Six between the number of African-Ameri- tial jurors jurors alternate can underwent voir struck dire from panel and the examination parties. number of Caucasian prosecu- struck and the tion prosecutor’s peremptorily struck three prospective alleged personal history of jurors, alternate systematically one of whom using was African- peremptory strikes to American. exclude jurors. African-American every In instance that the State exer Disparate A. Treatment of Similarly cised a peremptory challenge against an Situated Caucasian Jurors juror, African-American Kandies raised a The State exercised peremptory chal objection. And, Batson case, in each lenges against nine prospective African- prosecution came forward with race-neu jurors. American claims that six tral reasons for exercising the peremptory of these jurors Randleman, Jinwright, — challenge in question, though even the trial Rawlinson, Hines, McClure, and Oliver— court explicitly never determined whether were struck despite being similarly situat Kandies had established a prima facie ed jurors to Caucasian who accepted were case of during discrimination his series of by the prosecution. Ozmint, See Bell v. essence, Batson motions. In the trial (4th. Cir.2003) 382 (“Com F.3d 241 analysis court’s proceeded from the second parative juror analysis clearly is a relevant Batson step. review, On direct the North in consideration analysis” Batson for Carolina Supreme that, Court noted determining whether the prosecutor’s ex case, such a it appropriate is for planation pretextual.), was cert. de proceed court to if prima “as a facie case - nied, -, 157 had been every established” for venireper (2004). L.Ed.2d 1049 son Kandies, at issue. at 75. S.E.2d Jurors Randleman and Jinwright review, On habeas we have taken the same approach. Evatt, See Matthews v. prosecutor articulated two reasons (4th F.3d Cir.1997) (“Because for striking Juror First, Randleman. prosecutor a offered race-neutral explana answering background questions posed by tion in response objection, Matthews’ questionnaire a which prospective jurors the preliminary issue whether Matthews completed in advance of jury selection, prima established a case of discrimi Randleman failed to facie disclose that she had moot.”). nation is been convicted of a criminal offense. Prior dire, to voir however, the prosecutor per- specific Kandies’ arguments in support formed a criminal records check that re- of his Batson claim can be divided loosely vealed Randleman been “ha[d] convicted of into groups. First, two he contends that worthless checks and speeding two viola- the court’s conclusion that there was no tions.” Second, J.A. 131. prosecutor purposeful discrimination in the State’s use perceived Randleman to be “hesitant” of its peremptory strikes was unreasonable when asked whether she had feelings light fact the State’s reasons about death penalty. J.A. 131. for peremptorily striking the nine prospec- tive jurors African-American were equally With respect to Juror Jinwright, applicable to several Caucasian State’s proffered basis exercising for jurors who accepted by were the State. peremptory challenge Jinwright’s for- views about virtually identical expressed center day care aat employment

mer and Jin- Randleman penalty as four-year- death three- and for she cared where demon- does not Moreover, prosecutor wright, children. fortiori old Jinwright were testimony, and that Randleman voir dire strate believed, on her based the State’s Randleman, “hesi- similarly situated such like Jinwright, necessarily pre- Id. were question.” reasons penalty the death race-neutral tant Indeed, not violated “Batson is textual. prof- state’s reply did of different races veniremen whenever two peremptory using its reasons fered is and one responses same provide the Jinwright. Randleman against strikes Matthews, not.” the other excused the Batson denied Thus, court the trial Ozmint, we Bell v. F.3d at enunci- has “the State motion, finding that rejecting decision court that a state held grounds logical bases clear and ated where not unreasonable claim Batson challenges peremptory exercise Caucasian African-American improper- are not for ... grounds said penal- of the death views similar expressed J.A. discriminatory motives.” racially ly only struck peremptorily the State ty, but juror. The State African-American the Carolina the North appeal to direct On use for its reasons race-neutral two offered the “that Court, argued African- challenge: the peremptory the similarly situat- passed several prosecutor the feelings about death juror’s American pretextual proving the jurors,” white ed ages be- similarity “the penalty and for its explanation of the State’s nature defen- and [the children juror’s] tween [the Randleman against strikes peremptory the 241. Because F.3d 332 at dant].” Kandies, 467 S.E.2d at Jinwright. and children did not have juror Caucasian pretext that Kandies’ court concluded The court con- age, the approximate same the respect Ran- flawed argument was similarly not jurors were the that cluded Jinwright because dleman similarity of situated, apparent “ the despite among factor single ‘a simply picked had id. penalty. See death their views prosecutor articulated the several Matthews, F.3d at 242; see also at juror who passed it to a match[ed] ... and ” similar- not jurors were (finding Caucasian at Id. 75-76 factor.’ same exhibited juror who to African-American ly situated Porter, 326 N.C. (quoting State on the of his views because struck was (1990)). court ex- 144, 152 S.E.2d record and his criminal penalty death rejected previously it had plained any “that evidence no there was where determining pretext approach such record.”). “ a criminal seated had juror white to address ‘fail[ed] it Batson as under ” 76, 106 totality.’ Id. as a factors acknowledge fails argument Kandies’ 152). Porter, 391 S.E.2d (quoting reasons offered other prosecutor Carolina the North argues that men- jurors even before striking these unreason- decision Supreme Court’s about unsure they were tioning accept- the State because specifically to Randle- respect able With penalty. death ex- who jurors utterly Caucasian prospective argument ed this particular, inman penalty, hesitancy on the death pressed distinc- concrete obvious ignores a basis factor as the same jurors used but the Caucasian her and between tion Jinwright. striking Randleman about hesitant similarly were he claims juror infor- Randleman’s penalty. death that vari- correct if Kandies were Even not that she indicated form mation by the State accepted jurors Caucasian ous been when, convicted of a truth, crime required at the stage.. second See id. at the State’s record check listed convictions 115 S.Ct. 1769. Whether the trial for writing bad checks and committing court believes the reason actually motivat speeding violations. Unquestionably, a ed prosecutor question ais that must prospective juror’s alone, criminal record be answered at the third stage of the even if there disclose, was no failure to is Batson analysis, and even then it is the Matthews, race-neutral on its face. See opponent of the strike who shoulders the 105 F.3d at 917-18. Kandies not has burden proof. See id. at shown that Thus, Cauca- 1769. the State’s reliance on Ran- sian he believes held similar views dleman’s history criminal was a perfectly on the death penalty had criminal record appropriate race-neutral reason for exer or, so, if failed to disclose it. I cising see no a peremptory challenge, it and was clear convincing evidence Kandies, State, not the who was required State struck Randleman based on race. to demonstrate otherwise. Kandies has not produced any clear and convincing evi Kandies counters that because pros dence to rebut the state court’s factual ecutor did introduce evidence of Ran- determination in regard. dleman’s history, criminal the basis articu lated the State not supported respect With to Jinwright, who pur- record cannot justification serve as portedly struck because of her day former for a peremptory strike. This argument, employment care and her feelings about view, in my bungles Batson’s analytical the death penalty, again claims framework. It implies State, that the in that the State did not strike similarly situ- coming forward with race-neutral justi its jurors. ated Caucasian prosecutor The fication at the stage Batson, second was concerned about the link between a bears some evidentiary burden.4 That is prospective juror’s employment and the not accurate. The State’s burden at that Department of Services, Social explaining stage merely is to articulate a facially neu that defense counsel “is aware of some of tral reason for having exercised a peremp problems the case involving Social this tory strike. The prosecutor, in other Services and if we into I get that certainly words, simply must up come with a reason do juror not want a that was involved in a “based on something other than the race of Day Care or Social type Services work.” juror.” Hernandez, the U.S. at J.A. Only prospective two 111 S.Ct. 1859. order, This is not a tall Caucasian-jurors had worked in a school- given “[t]he that step second pro this type setting with young children —alter- cess does not demand explanation jurors that nate Arlington Spence. and In both persuasive is plausible.” even Purkett, cases, however, there were obvious rea- 767-68, 514 U.S. at 115 S.Ct. 1769. As sons for State accept jurors. to In long as the State up comes with a Arlington’s case, reason— her husband was a detec- anything other than a mere denial of dis tive who had been job on the years. for 30 criminatory intent —it has done all that is That this is an attractive factor for the least, 4. At appears this to me to be the thrust did not cutor introduce about evidence argument: of his specious "It is ... that the purported these The State should records. prosecutor relied purported on the rec- permitted criminal not justify be its strikes with infor- ords record, several mation not in the African-American especially when jurors nothing when in the record supported does defendant not have access to this infor- these naked Nothing assertions. in the rec- mation.” Brief of Appellant (emphasis at 30 supported ord explanation, this added). prose- as the option in either could consider cated he her sub- makes that one prosecution —and instructions. court’s with the con- accordance Jinwright dissimilar stantially —is challenged that Kandies the fact firmed offered several reasons The prosecutor that, made clear cause and for Arlington wor- that Hines was excusing Hines: per- allotment his not exhausted had he of income that the loss ried about trial, in the point that strikes emptory entail; Hines claimed that would service testi- Spence her. excluded have would the death thought about never “he ha[d] par- her and daughter her that both fied before; to disclose that he failed penalty” victims, that and robbery were ents convictions juror questionnaire prior never cases, perpetrator both driving and impaired driving while noted justice. She brought found license; during his that a valid without angry” about “very had that she been having testimony, he denied voir dire she but daughter, her against crime 605.5 history. J.A. criminal State to both the fair could “probably” claim, trial court rejecting J.A. case. in a criminal defendant and the per- for its bases two of the State’s argument noted Again, Kandies’ over concern similarly situ- emptory challenges are so Jinwright Spence —Hines’ to disclose he exer- failure fact that missing work and undercut ated against Juror as the fact well strike peremptory prior convictions—as cised had the State jurors that eight two of Spence. were the trial point in up to that accepted any clear pointed has trial court American. African rebut would convincing evidence third accepted a that the State noted prosecution finding that court’s state used juror, but African-American Jin- Randleman strike did not to ex- strikes own peremptory of his one intent. discriminatory wright appeal, direct juror. On clude Hines Juror affirmed. Carolina North Batson motions Kandies’ next of The Kandies, at 76. 467 S.E.2d See exercising Before Hines. Juror covered did the State argues that now Kandies moved challenge, the State peremptory its jurors who were Caucasian two not strike he after for cause Hines strike Juror to because, like to Hines similarly situated for support sole the indicated the about concerns him, expressed they imposed hardship the family his employ- their on jury service impact ability to his impair would jury service ignores argument Again, ment. to court refused the trial After serve. articulated reasons other race-neutral peremp- cause, used a the State for strike suggest not does Kandies the State. under objected again Kandies tory strike. concerned were jurors who Caucasian that, stat- Batson, arguing although Hines had criminal employment about their strong no he held during voir dire ed Randleman, Hines juror Like records. he indi- penalty, death feelings about Kandies, The S.E.2d renewing cution.” trial, responded At held that North Carolina Supreme Court of share required to State that the motion subject to disclosure was not this information any criminal gathered from it information law, and that Kandies Carolina North under prosecution. by the performed check record sufficient proof and "had burden of appeal, had on direct issue pursued this pro- that the produce evidence opportunity to pro- required to State arguing that the have crimi- question not did jurors spective checks record the criminal "copies of all duce at 77. Id. records.” prose- nal by the jurors obtained not similarly purposes situated for questions of a during voir dire without request comparative juror analysis under Batson. ing clarification several times. See Kan Ozmint, See 332 F.3d at 241—42. Ce rtainl dies, 467 S.E.2d at 76. y, such evidence does not rise to the clear argues that the State accepted and convincing required level to rebut the a number of jurors Caucasian who failed to presumption of correctness afforded the strictly follow the. instructions of state court’s determination that the State court, regularly which pro- admonished had no discriminatory in striking motive spective jurors during the pro- voir dire Moreover, Hines. for the already reasons exposure cess avoid to media accounts stated respect Randleman, of the trial. In support of his argument,

State’s failure to submit a copy Hines’s Kandies specifies three jurors Caucasian into record evidence had no bearing who indicated that they either read whether the adequately State discharged newspaper account or listened to a televi- obligation its to articulate an explanation sion report about the trial after was neutral on its face. process selection had begun. Kandies also Juror Oliver claims that prosecutor failed to thor- During the selection of jurors, alternate oughly question all of jurors the Caucasian the State a peremptory exercised strike of on their exposure. level media Oliver, Juror who was African-American. responded State to Kandies’ Batson The. Kandies’ argument, best, misper- by explaining motion that Oliver had diffi- ceives the nature of concern, the State’s culty hearing, as evidenced by her failure which obviously Oliver’s hearing. Oli- to follow the court’s ver’s, instructions refrain requests numerous prosecutor from watching television radio broad- repeat questions prompted pros- casts about the trial. prosecutor’s ecutor to Oliver if ask she had difficulty primary concern was whether she would hearing, to which she responded she did be able “to hear and understand me as this very hear well and that “everybody’s case goes along.” J.A. 969. Kandies not talking enough.” loud J.A. 967. The countered that the State accepted trial court’s conclusion that there was no Caucasian who had not followed the discriminatory intent was also obviously preliminary court’s instructions. The trial based on Oliver’s inability to hear; rejected court argument Kandies’ that the court mentioned her apparent failure to jurors similarly situated, were finding per- follow instructions aas of manifestation suasive the proffered State’s reasons: “the her problem. hearing Kandies, See juror’s apparent inability to hear the S.E.2d at 76. Kandies has not suggested Court’s ... instructions and juror’s the that there non-minority jurors were who, inability obvious hear questions to the Oliver, like could not hear or had difficulty the District Attorney without requesting following proceedings the but accept- were clarification on numerous during occasions by ed the fact, State nonetheless. the the process.” voir dire J.A. 970 (emphasis only juror other who apparently had hear- added). ing difficulty was Juror Massey, who

The North Carolina struck by Court re- the State because she “had trou- jected Kandies’ Batson claim to the ble extent understanding” questions by asked the it was Oliver, based on specifically prosecutor men- during dire, voir “continuously the tioning trial court’s own observation answered difficulty,” with and because the that Oliver was not able to respond prosecutor to easily could not understand her Honor, I asked Your [PROSECUTOR]: Kan- Accordingly, 131.6 J.A.

responses. basically indicated and everybody most similarly jurors any to pointed has not dies with any contact they had that anyone race, who Oliver, except to situated reason Primarily, the to the trial. prior dur- the State differently by treated were the death on they weak that were strikes. peremptory its exercise ing question. penalty with come forward to Thus, failed he has the object to to the rebut did not convincing evidence Kandies 167-68. J.A. clear no offered there was reason finding particular that of this sufficiency court’s state strikes using peremptory intent. State discriminatory the Rawlinson, did he nor against McClure and Rawlinson McClure Jurors from the explanation any further request that he struck indicated prosecutor this basis. respect The to with State because, other among McClure Juror the bases that court concluded The present officer a law enforcement things, valid were prosecutor offered at sleeping him noticed the court-room were jurors these found that refute did not two times. least on the basis State not struck to trial, point does nor this assertion Su- Carolina the North appeal, On race. race- suggest this would anything now offered reasons held preme Court re-With pretextual. reason neutral the trial and that valid were by the State Rawlinson, prosecutor to Juror spect concluding that not err court did during voir express not did noted that she against challenges peremptory exercise regard to strong opinion with dire “motivat- was not and Rawlinson McClure indi- prosecutor penalty. death discrimination.” racial by impermissible ed local of the employees he asked cated Kandies, 467 S.E.2d they had whether department police re- their used prosecutor Because jury panel on anyone knowledge pen- the death about questions sponses selected, and be would whom from striking bases for alty as one nor Rawlinson neither learned that McClure them, argues choice good to be thought McClure were disparate subject to also were Rawlinson jury: murder trial capital for a ac- by the State’s treatment, as evidenced were jurors who I discussed of Caucasian ceptance [PROSECUTOR]:.... or am- Police High Point weak because similarly situated jury panel Mr. they punishment. indicated capital views Department, bivalent not would Mrs. Rawlinson McClure McClure, has respect With case. type of for this jurors good record in the anything pointed Caucasian were that there suggest to elabo- Do want you THE COURT: they though even accepted the State that, please? rate on the correctness presumptive the overcome belief prosecutor’s argues that the 6. Kandies there that determination factual court’s the state easily understand Massey could that 28 discriminatoiy See intent. no explanation strik- awas sham proceedings Here, particular, 2254(e)(1). § by U.S.C.A. the record supported was not ing her and judg- substituting our wary be should we prosecutor "Massey only the asked because ment, transcript, for that bare based the prosecutor never question, repeat one during court, present who state her repeat answers.” asked her prospective observed this proceedings and observation This Appellant Brief Smith, 220 Evans See juror first-hand. con- the clear and dramatically short of falls Cir.2000). 306, (4th 316 produce to F.3d must vincing Kandies evidence 500

were nodding off in court or to pay unable ed States v. Horsley, 1543, 864 F.2d 1546 r again, Once (11th attention. simply Cir.1989) has curiam) (pe (rejecting ignored a race-neutral reason clearly that prosecutor’s explanation “just that he distinguishes juror the stricken from oth- him”). a feeling [had] about But see Unit ers by accepted the State. ed States v. Bentley-Smith, 2 1368, F.3d (5th Cir.1993) curiam) 1375 (per (stating respect Rawlinson,

With there was no prosecutor’s intuition, standing other juror, except alone, is McClure, a sufficient who the race-neutral reason State struck based on Batson). for purposes of juror’s prior contact with employees of police the local department and the em- Batson instructs that the State must ployees’ impressions juror’s feelings rebut a prima case articulating “a facie capital about punishment. Again, this un- clear and reasonably specific explanation dercuts Kandies’ “similarly argu- situated” legitimate of his reasons for exercising the ment. Batson, challenges.” 20, 476 U.S. at n.98 Kandies counters that the prosecutor’s (internal 1712 S.Ct. quotation marks purported reliance opinion on the of local omitted). Subsequent decisions clarified police personnel, contact, based on prior the limited nature of this requirement, that Rawlinson and McClure were weak on which was imposed to prosecutor prevent, capital punishment was pro- insufficient from “satisfying] his of production burden vide a race-neutral basis for striking Raw- by merely denying that he had a discrimi- linson and McClure. argues natory motive or merely affirming his this explanation was “little more than a good Purkett, faith.” 769, 514 U.S. at hunch, very type of explanation S.Ct. Certainly, the explanation giv- that is inherently suspect.” Ap- Brief of en prosecutor here is sufficient.to pellant added). 29 (emphasis Although satisfy Batson’s modest race-neutral re- argument precision, lacks appears it quirement. It specific is and reasonably clearly to be step directed at two of the case; related to the it need not “persua- Batson analysis, which is long satisfied as sive, or plausible.” even 768, Id. at as the State does not offer a reason in S.Ct. face, 1769. On its proffered ex- which “discriminatory intent is inherent.” planation is “based on something other Hernandez, 500 U.S. at than the race” of prospective jurors, added). (emphasis Indeed, Kandies ar- which is all that Hernandez, is required. gues basis articulated by pros- 500 U.S. at 111 S.Ct. 1859. I my note ecutor was “legally to survive insufficient concern, however, about this type of rea- challenge.” Batson Brief of Appellant at son as it virtually impossible for the added). 29 (emphasis, two, At step defense to effectively challenge. Never- trial court examines the prosecutor’s ex- theless, under the circumstances of this planation to whether, determine “as a mat- case, I say cannot the state court’s law,” ter of it is a valid race-neutral reason decision contrary to, or an unreason- on its face. Id. at 111 S.Ct. 1859. of, application able Batson its progeny. then, Specifically, argues reliance on feedback from the police local B. Other Evidence of Discriminatory department cannot constitute a race-neu Intent tral basis’ because it nothing more than an undefined “feeling” about a prospective Kandies’ next argument is that the trial juror. Brief of Appellant at 29. Unit ignored court statistically significant evi- Cf. Miller- case.” prima the support finding discrimi- a of supported facie that dence of (empha 340, 123 El, at S.Ct. that he contends Specifically,

nation. added). that the The concluded Court sis per- fifteen exercised prosecutor [t]he fully peti to consider failed court district were of which challenges, nine emptory prosecu that evidence prima tioner’s Americans. African facie against directed eligible African- of the “91% struck them, tors to each objected Kandies When members”—-which venire a American if determine did not court the trial sufficiently debat create a enough to presented. alone been had facie case prima a certifi warranted that simply volun- Batson issue able Rather, prosecutor the Id. § 2253. challenges. under these appealability cate explanations teered if these 342, 123 then decided court trial By pro- race-neutral. were explanations argu- me, Kandies’ appears it that To fashion, trial court the in this ceeding conten- discrete two encompasses ment Kandies’ strength of the judged never from Miller- snippets on these tions based words, the other facie case. prima presented never Kandies El. Because the num- considered neither trial court trial court to the state evidence statistical exercised prosecutor the of strikes ber (so challenges far his Batson support of nor evaluated Americans African against tell), argument would Kandies’ as I can percent- in the difference the dramatic could mean, first, state court that a Ameri- against African of strikes ages Batson, step the skip first properly it Because to whites. opposed as cans a of whether a determination requiring the strength of the determined never made. It bears been case had prima could case, trial court facie facie the prima acceptable perfectly it that was repeating determina- the ultimate it into not factor court for the trial the circumstances under contrary to Batson. ... tion of whether analysis any specific bypass sup- at 22-23. Appellant Brief of prima established had facie disparity of statistical his claim ports has ex- As case. per- used prosecutor that explaining reiterated, has court this plained, otherwise of eleven eight on emptories a race- has offered prosecutor “[o]nce (73%), African-American qualified peremptory explanation neutral on challenges peremptory that used but ruled on has trial court and the challenges (15%) twenty-six only four dis- of intentional question ultimate contends jurors. Caucasian issue crimination, preliminary not, to, did but required court was the trial prima made a the defendant justifi- whether [race-neutral] the asserted “weigh Hernan- moot.” becomes showing prima facie [his] strength against cation 1859; see 359, 111 S.Ct. dez, totality of circum- case under fade Moreover, Kan- Hill, Bell, 146 F.3d n. 5. at 240 332 F.3d States United stances.” Cir.1998). from not (6th benefitted dies, have would who hurdle, first Batson clear the having to primarily argument Kandies bases make the court at trial insisted never suggesting in Miller-El language rather than determination prima whether, facie ultimate determination showing had prima if a as proceeding explanation facie the neutral “despite now suggest For him made. been ... strikes peremptory prosecution, having for not derelict trial court “the facts include should based” were race disingenuous. as so strikes me done were adduced and circumstances argument Kandies’ would also alleviate Black race.... The District Attorney has o his burden of proof t a certain extent. passed one of the prospective jurors called Miller-El, however, does not alter the replacement juror as a who is a member of three-step analysis Batson or its allocation a minority race and had peremptorily ex- proof burden to the opponent of cused [the two other] [African-American the peremptory Rather, strike. it con jurors].” J.A. 168A. In cases, both as firms that statistical evidence a discrimi above, discussed detail court went natory pattern peremptory strikes is on to find that the State had articulated prima relevant to a case. See Bat facie valid basis for striking each of the African- son, 96-97, 1712; U.S. see jurors and, American ultimately, that the Moore, Howard v. 131 F.3d 407 peremptory strikes had not been exercised (4th Cir.1997) (en banc). Although Kan- on the basis of race.

dies was actually required not to make a prima here, sum, case neither was In pro this does not constitute the clear facie hibited from adducing evidence that bol and convincing evidence needed rebut stered allegations the State was the presumption of enjoyed by correctness striking African-Americans because of the state finding court’s that there was no their race. Technically, what he is sug discrimination. gesting is that the trial court take into Finally, Kandies contends that the trial consideration evidence that he could have ignored court prosecutor’s alleged per- used, not, but did support prima facie sonal history of purposely excluding pro- case. I am not aware of a require such spective minority jurors on the basis of ment in Miller-El or other case. In race. This “evidence” fact, was nothing more very language Kandies relies on than a eónclusory by indicates statement that the trial defense court should consid er counsel that facts he had “adduced” in never in support past prima seen case. the prosecutor leave a minority panel facie member on jury. He cites Miller-El Moreover, although the trial court was in support, bare, but a unsubstantiated presented evidence, statistical statement defense counsel is nothing record reveals that the trial court did con- like the testimony extensive sider, Miller-El following each round of peremptory about the strikes, history of discrimination and number of strikes exercised official against policy adopted by the African-American district attor- vis-a-vis jurors. ney’s Caucasian office to For exclude example, after the minorities from first round duty. of peremptory Miller-El, See 334-35, strikes State, the trial court prefaced its ruling short, S.Ct. 1029. In defense counsel’s Kandies’ Batson motion by noting that the comment is insufficient to rebut the trial State “exercised six peremptory chal- court’s factual determination by clear and lenges, ... three [of ... which] have been convincing evidence.

exercised toas the members of the black race.” J.A. 135. After the second round C. Conclusion strikes, the trial court prefaced its rul- ing as sum, “[Fallowing follows: I cannot say exercise of the state the State’s first [six] court’s peremptory chal- rejecting decision Kandies’ Batson lenges ... replacement jurors six claim to, was contrary [were] or involved an un- called, three their questionnaires indi- of, reasonable application clearly estab- cated that they were members of law, lished federal nor can I say that this unreasonable upon based decision was

factual determination.

V. reasons, I concur foregoing

For the Judge Gregory reached

the result claim assistance ineffective

both claim. Batson JOHNSON, Keith

Roderick

Plaintiff-Appellee, Defendants, ah, JOHNSON, et

Gary Treon, Senior Johnson; R. Robert

Gary E. Unit; Richard Allred

Warden Mooneyham, Assis

Wathen; D. James Tommy Unit; Allred

tant Warden Bright, Major; Kenneth

Norwood, Tracy Kuyava, Administrative

Major; Com Classification Unit

Technician Vitolo, Administrative

mittee; Tina Committee; Classification Unit

Technician Director, Wright, D. kki

Vi Boyle, Joseph Captain; Classification; Bowman, Major; Kenneth

Jimmy Paul, Sergeant; Oscar

Willingham, Ranjel, Lieu

Lieutenant; Onessimo Lieutenant, De Taylor,

tenant; David

fendants-Appellants. 03-10455, and 03-10722. 03-10505

Nos. Appeals, States

United

Fifth Circuit. 8,

Sept.

Case Details

Case Name: Jeffrey Clayton Kandies v. Marvin Polk, Warden, Central Prison, Raleigh, North Carolina

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Sep 24, 2004

Citation: 385 F.3d 457

Docket Number: 03-9

Court Abbreviation: 4th Cir.