Daniels v. Lee ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN DENNIS DANIELS, 
Petitioner-Appellant,
v.
 No. 02-9
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-99-225-3-MU)
Argued: October 29, 2002
Decided: January 10, 2003
Before WILKINSON, Chief Judge, and WIDENER and
KING, Circuit Judges.
Certificate of appealability denied and appeal dismissed by published
opinion. Judge King wrote the opinion, in which Chief Judge Wilkin-
son and Judge Widener joined.
COUNSEL
ARGUED: Kimberly Candace Stevens, STEVENS & WITHROW,
P.L.L.C., Winston-Salem, North Carolina; Ann Bach Petersen,
GLOVER & PETERSEN, P.A., Chapel Hill, North Carolina, for
Appellant. Edwin William Welch, Special Deputy Attorney General,
2 DANIELS v. LEE
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Roy Cooper, Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
OPINION
KING, Circuit Judge:
In September of 1990, John Dennis Daniels was convicted in the
Superior Court of Mecklenburg County, North Carolina, of capital
murder and multiple related crimes. The jury recommended that Dan-
iels be sentenced to death and the presiding judge imposed the death
sentence. After an unavailing direct appeal process, Daniels unsuc-
cessfully sought post-conviction relief in the courts of North Carolina.
He then petitioned for habeas corpus relief in the Western District of
North Carolina. The district court denied his petition, and Daniels
now seeks to appeal that denial to this Court. As explained below,
Daniels has failed to make a substantial showing of the denial of any
of his constitutionally protected rights. We therefore decline to issue
a certificate of appealability, and we dismiss his appeal.
I.
A.
Daniels was indicted in early 1990 by a Mecklenburg County grand
jury for the strangling death of his aunt, seventy-seven-year-old Isa-
belle Daniels Crawford. He was also charged with assault with a
deadly weapon against his wife, his son, and a neighbor; with com-
mon law robbery; and with the attempted burning of his dwelling. In
rejecting Daniels’s direct appeal, the Supreme Court of North Caro-
lina summarized the relevant facts underlying the jury’s verdict. State
v. Daniels, 446 S.E.2d 298, 304-07 (N.C. 1994). We are unable to
improve on that factual summary, and we here set it forth in haec
verba:
By 3:00 p.m. on 17 January 1990, defendant, John Dennis
Daniels, had consumed two beers. Later, he consumed a
DANIELS v. LEE 3
fifth of wine and became "somewhat drunk." In the late
afternoon or early evening, defendant went to the home of
his seventy-seven-year-old aunt, Isabelle Daniels Crawford,
to ask for money and to ask if Crawford would permit
defendant’s wife, Diane, and his twelve-year-old son, Mau-
rice, to stay with Crawford. Defendant was behind on his
rent, and he was having marital problems. Upon arrival at
Crawford’s house, defendant asked Crawford for money and
asked her to take in his wife and son. Crawford did not give
defendant any money and told defendant that she intended
to phone his mother. Defendant told Crawford not to call his
mother and then punched Crawford in the mouth, knocking
her to the floor. Defendant, using an electrical cord he
wrapped around his aunt’s neck three times, strangled Craw-
ford and dragged her body to the back of the house. He
located Crawford’s purse, removed $70.00 to $80.00, and
left. In his pre-trial statement, defendant stated, "I don’t
know why I killed her. Bills set me off. My lady has got
bills. I tried to kill my lady."
After purchasing some cocaine, defendant walked around
Charlotte and then returned to his home around 10:30 p.m.
At home, he spoke briefly with his wife, Diane, and smoked
some cocaine in their bathroom. After smoking the cocaine,
defendant left the bathroom, holding a hammer. He
approached his wife, who was lying on the bed in their bed-
room, and began striking her in the head with the hammer.
A struggle ensued during which defendant lost the hammer.
Responding to defendant’s wife’s cries for help, their son,
Maurice, joined the altercation. The fight moved into the
hallway, where defendant hit his wife on the head with a
kerosene heater. Defendant then chased his wife and son
into the kitchen and den as defendant’s wife attempted to get
out of the house. Once in the den, defendant got a rock out
of the aquarium and struck Maurice with it; defendant then
found the hammer and hit Maurice in the head with it.
Defendant’s wife and son were finally able to run out the
front door. Defendant pursued his wife outside and again hit
her in the head with the hammer; he then returned to his
house.
4 DANIELS v. LEE
The Daniels’ neighbor, Glenn Funderburke, was aroused
by the commotion and went outside. Funderburke discov-
ered defendant’s son, Maurice, in his yard and took him into
Funderburke’s house. He then phoned the police and went
to defendant’s house to investigate. Upon entering defen-
dant’s house, Funderburke noticed flames near defendant.
Defendant, holding a knife, threatened to kill Funderburke
if Funderburke did not leave. Funderburke immediately
returned to his home and again phoned the police.
At about 12:30 a.m., Charlotte Police Officer Thomas
Griffith arrived on the scene, joining two other officers and
a fire truck that had already arrived. Griffith observed the
house on fire. After extinguishing the fire, the firemen
brought defendant from the house and gave him oxygen.
After defendant refused further medical treatment, Officer
Griffith told defendant that he was going to jail for assault.
At about 12:50 a.m., Griffith left the scene with defendant
and proceeded toward the Law Enforcement Center.
In the car, defendant repeatedly urged Griffith to go to
"Mint Street." When Griffith asked defendant why he was
making this request, defendant responded: "I think I might
have killed my aunt." Griffith then changed course slightly,
followed defendant’s directions, and at 12:55 a.m. arrived at
the house identified by Daniels. After knocking on the back
door and receiving no response, Officer Griffith entered the
home. Inside, Griffith found a trail of blood beginning in a
hallway.
Following the trail to a bedroom, Griffith found Craw-
ford’s lifeless body lying face down on the floor, with a cord
wrapped around her neck. A wastebasket was overturned,
and the carpet disturbed; the remaining contents of the
house were intact.
Griffith then took defendant to the Law Enforcement
Center, arriving at 1:15 a.m. After smoking a cigarette and
using the bathroom, defendant was placed in a room and
given a pen and paper, which he had requested. A few min-
DANIELS v. LEE 5
utes later, defendant returned the paper, requesting that it be
sent to the Governor. On it he had written:
Dear sir
I’m not crazy
What I did was premediated! [sic]
Time 1:42 1/18/90
John D. Daniels
I do not want a trial
I do not want my family around
I do not want news report [sic]
Shortly after receiving this letter, Griffith heard a noise in
the room. He entered the room to find defendant on the floor
with the drawstring from his pants around his neck. Another
string was attached to a filing cabinet that was four feet,
three inches high. Defendant was not injured.
At 2:00 a.m., Investigator Robert A. Holl arrived at the
Center and spoke with Griffith. The two men took defendant
to an interview room, and Holl left to investigate the crime
scene. Holl returned between 4:30 a.m. and 4:45 a.m. Holl
advised defendant of his Miranda rights, and at 5:05 a.m.,
defendant waived his rights by signing a waiver form. Holl
proceeded to interview defendant. The interview, which
concluded at 6:00 a.m., yielded a confession that detailed
the events of the night before. After being taken to jail,
defendant was committed to Dorothea Dix Hospital for two
weeks. He was then returned to jail to await trial.
Dr. James Sullivan, the Mecklenburg County medical
examiner and an expert in forensic pathology, performed an
autopsy on Crawford. His examination revealed that Craw-
ford had bled from the nose and mouth, her left eye was
bruised, her lip was cut and bruised, and her nose was bro-
ken. There were also two contusions to her frontal scalp.
There were abrasions on the sides and back of her neck and
indications that the victim had been dragged. Crawford also
had bruises on her right arm and hand which were consistent
with defensive-type wounds.
6 DANIELS v. LEE
Defendant’s evidence was largely directed to showing a
lack of premeditation and deliberation and an inability to
understand his rights before making his confession. It
tended to show as follows:
Lieutenant G.W. Bradshaw of the Mecklenburg County
Sheriff’s Department, the shift supervisor at the intake cen-
ter on 17 and 18 January, saw defendant at 7:15 a.m. on 18
January when Holl and other officers brought defendant to
the intake center. Pursuant to jail policy, Bradshaw had
refused to accept defendant because of information given to
Bradshaw indicating potential suicidal tendencies. Bradshaw
requested that Public Defender Isabel Scott Day seek an
emergency commitment of defendant to allow for a mental
evaluation. Bradshaw and defendant spoke during the morn-
ing, but defendant did not always seem to understand what
Bradshaw was saying. Mrs. Day spoke with defendant in
Bradshaw’s presence, but at times defendant did not respond
to her.
Dr. William Tyson, a clinical psychologist, testified as an
expert in clinical and forensic psychology. He interviewed
defendant for one and one-half to two hours, administered
psychological tests, and reviewed material from previous
evaluations of defendant. According to Dr. Tyson, defendant
had a chronic and pervasive mixed personality disorder,
marked by unstable moods and behavior. Defendant was
dependent on cocaine and alcohol and had a history of abus-
ing and experimenting with drugs, including amphetamines,
LSD, heroin, and tranquilizers. His substance abuse aggra-
vated his personality disorder. As a result of these problems,
defendant’s emotional and social development skills were
those of an eleven- or twelve-year-old child. According to
Dr. Tyson, defendant’s ability to think or evaluate his
behavior would have been compromised to the point of
being "inconsequential."
Psychiatrist John N. Bolinsky, Jr., also testified as an
expert in psychiatry. Dr. Bolinsky had interviewed defen-
dant twice and had reviewed defendant’s medical records,
DANIELS v. LEE 7
including records for treatment of alcoholism. Dr. Bolinsky
testified that defendant had an unspecified personality disor-
der. Based on this disorder and defendant’s chronic sub-
stance abuse, coupled with his use of alcohol and cocaine on
17 January, Dr. Bolinsky testified that defendant would have
been "perhaps ‘paranoid’" and extremely impulsive.
According to Dr. Bolinsky, defendant’s ability to form a
specific intent to kill his aunt "would have been profoundly
impaired, if not in essence absent." Dr. Bolinsky explained
that the combination of defendant’s psychological problems,
his chronic substance abuse, and his substance abuse on the
day of the slaying would have made defendant impulsive
and paranoid, causing him to act reflexively, without think-
ing.
Id. After considering the evidence presented during the guilt phase of
his trial, which was conducted in September of 1990, the jury con-
victed Daniels on all charges.
During the sentencing phase of the trial, the prosecution presented
evidence from two witnesses. First, it offered the testimony of Dr.
Cynthia White, a psychiatrist, who opined that Daniels possessed an
antisocial personality disorder and that, due to extensive drug and
alcohol abuse, he had developed such a tolerance for alcohol and
cocaine that he could react and think while under their influence. Dr.
White also concluded that Daniels killed Ms. Crawford with both pre-
meditation and deliberation. The prosecution also recalled Dr. Sulli-
van, who testified concerning the trauma that Ms. Crawford had
suffered before she died.
To rebut Dr. White’s testimony, Daniels’s counsel recalled Dr.
Bolinsky, who testified that it was improbable that Daniels would
have killed Ms. Crawford absent depression and substance abuse. Dr.
Bolinsky explained that Daniels’s substance abuse was not of the sort
that leads to increased tolerance levels, and that his use of alcohol and
cocaine on the day of the offenses caused him to be mentally
impaired. Dr. Bolinsky concluded that Daniels’s problems were treat-
able and that Daniels felt remorse for his actions. His counsel also
presented evidence from several members of Daniels’s family. Two
of his siblings, John and Mary, testified that they typically noticed a
8 DANIELS v. LEE
change in Daniels’s personality and attitude when he was drinking.
His mother testified that Daniels’s personality changed markedly
when he consumed alcohol, and she advised the jury that her son had
expressed remorse for his crimes.
The jury recommended that Daniels be sentenced to death, and the
judge accordingly imposed that penalty.1 The court also sentenced
Daniels to consecutive terms of imprisonment on his convictions for
assault and for attempting to burn his dwelling, but it arrested judg-
ment on the robbery conviction.
B.
Daniels appealed his convictions and sentence to the Supreme
Court of North Carolina.2 On March 5, 1992, while the direct appeal
was pending, Daniels also filed a Motion for Appropriate Relief (the
"First MAR") in that court.3 On July 29, 1994, the Supreme Court of
North Carolina affirmed Daniels’s convictions and sentence on the
direct appeal.4 Daniels, 446 S.E.2d at 298. Then, on August 1, 1994,
the court summarily denied the First MAR. State v. Daniels, Order,
506A90-1 (N.C. Aug. 1, 1994). Daniels’s conviction became final on
January 23, 1995, when the Supreme Court of the United States
denied his petition for certiorari. Daniels v. North Carolina, 513 U.S.
1In a capital case in North Carolina, the jury hears evidence in the sen-
tencing phase of a trial and makes a binding recommendation to the
judge. N.C. Gen. Stat. § 15A-2000(b); see State v. McCollum, 433 S.E.2d
144, 153 (N.C. 1993).
2
Daniels’s direct appeal bypassed the North Carolina Court of
Appeals. See N.C. Gen. Stat. § 7A-27(a).
3
A defendant convicted of a capital crime in North Carolina may seek
post-conviction relief by way of an MAR. An MAR is not identical to
a habeas corpus petition, but it provides an avenue for any attempt to
obtain relief from "errors committed in criminal trials." See N.C. Gen.
Stat. § 15A-1401.
4
On August 25, 1994, the Supreme Court of North Carolina granted
reconsideration of its decision in the direct appeal in order to correct a
factual misstatement. The award of reconsideration had no impact on any
of the issues Daniels raised in his direct appeal. See State v. Daniels,
Order, 506A90 (N.C. Aug. 25, 1994).
DANIELS v. LEE 9
1135 (1995). On December 29, 1995, Daniels filed a second MAR
(the "Second MAR"), this time in the Superior Court of Mecklenburg
County (the "Second MAR Court"). That court, however, dismissed
the Second MAR on February 11, 1997, without conducting an evi-
dentiary hearing. State v. Daniels, Findings of Fact and Conclusions
of Law, 90 CRS 4580 (N.C. Super. Ct. Feb. 11, 1997) (the "Second
MAR Decision"). Thereafter, on May 28, 1998, the Supreme Court of
North Carolina denied certiorari on the Second MAR Decision. See
State v. Daniels, 506 S.E.2d 248 (N.C. 1998).
On May 4, 1999, Daniels filed a motion for discovery, pursuant to
N.C. Gen. Stat. § 15A-1415(f), in the Superior Court of Mecklenburg
County (the "§ 1415(f) Proceeding"). This statute was enacted by the
North Carolina legislature in 1996, and it provides that, upon timely
request, a prisoner convicted of a capital crime is entitled to access
to the complete files of his case from all law enforcement and pro-
secutorial agencies involved in his prosecution. Because Daniels had
filed his Second MAR before § 1415(f) was enacted, and because the
Second MAR was dismissed before Daniels filed the § 1415(f) Pro-
ceeding, the State contended that he was not entitled to any § 1415(f)
relief.
On May 28, 1999, while the parties were still contesting the
§ 1415(f) Proceeding in state court, Daniels sought federal habeas
corpus relief in the Western District of North Carolina. Thereafter, in
April of 2000, the Supreme Court of North Carolina ruled that
inmates convicted of capital offenses, such as Daniels, were entitled
to discovery under § 1415(f). State v. Williams, 526 S.E.2d 655, 657
(N.C. 2000). On the basis of the Williams decision, the State capitu-
lated in the § 1415(f) Proceeding. Daniels’s § 1415(f) discovery was
completed on January 31, 2001, and, on February 13, 2001, the par-
ties filed a consent order in federal court authorizing Daniels to
amend his habeas corpus petition. Before filing his amended petition,
however, Daniels again sought relief in the Supreme Court of North
Carolina, asserting that his murder conviction and death sentence
were invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000). On
February 22, 2001, the Supreme Court of North Carolina summarily
denied that claim. State v. Daniels, Order, 506A90-3 (N.C. Feb. 22,
2001) (the "Summary Opinion").
10 DANIELS v. LEE
On March 2, 2001, Daniels filed his amended petition for federal
habeas corpus relief, adding his Apprendi claim and a false testimony
claim. The Apprendi claim had been denied in the Summary Opinion,
and Daniels’s false testimony claim was premised on the evidence he
had obtained in § 1415(f) discovery. In its answer to the amended
petition, the State waived any exhaustion requirement on the false tes-
timony claim,5 and it then moved for summary judgment on all of
Daniels’s claims. On January 19, 2002, the district court concluded
that neither an evidentiary hearing nor further discovery was neces-
sary, and it awarded summary judgment to the State. Daniels v. Lee,
Order, 3:99CV225MU (W.D.N.C. Jan. 19, 2002) (the "Summary
Judgment Order"). Daniels then filed a motion for reconsideration of
the Summary Judgment Order, which the district court denied. Dan-
iels v. Lee, Order, 3:99CV225MU (W.D.N.C. April 3, 2002) (the "Re-
consideration Order"). Finally, Daniels filed a timely notice of appeal
from the Summary Judgment Order and the Reconsideration Order,
and he now seeks issuance of a certificate of appealability and rever-
sal of those orders.
II.
In assessing Daniels’s claims, we must adhere to the principles
established by the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"). Under AEDPA, a federal court may award habeas
corpus relief with respect to a claim adjudicated on its merits in a
state court proceeding only if the state court’s adjudication resulted
in a decision that was: (1) "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States"; or (2) "based on an unreason-
able determination of the facts in light of the evidence presented in
the State court proceeding." 28 U.S.C. § 2254(d). As the Supreme
Court has explained, a state court adjudication is "contrary to" clearly
established federal law only if "the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law
or if the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts." Williams v.
5
Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of
habeas corpus shall not be granted unless the applicant exhausted the
remedies available to him "in the courts of the State."
DANIELS v. LEE 11
Taylor, 529 U.S. 362, 413 (2000). A state court decision unreasonably
applies clearly established federal law if it "unreasonably applies that
principle to the facts of the prisoner’s case." Id.6
Before a petitioner may pursue an appeal from a final order in a
habeas corpus proceeding arising out of a state court conviction, a
"circuit justice or judge" must issue a certificate of appealability
("COA") on the petitioner’s behalf. 28 U.S.C. § 2253(c)(1). Under
AEDPA, a COA "may issue . . . if the applicant has made a substan-
tial showing of the denial of a constitutional right." Id. § 2253(c)(2).
In order to satisfy this standard, a petitioner must demonstrate to a cir-
cuit justice or judge that "reasonable jurists could debate whether
. . . the petition should have been resolved in a different manner or
that the issues presented were ‘adequate to deserve encouragement to
proceed further.’" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quot-
ing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
III.
Daniels asserts five errors in his conviction and sentence. Specifi-
cally, he contends:
(1) that during closing argument in the sentencing phase,
the prosecution improperly referred to the Bible and incor-
rectly advised the jury that it would not be the ultimate deci-
sionmaker on a death sentence (the "Closing Argument
claim");
(2) that he was deprived of both his right to call a material
6
Significantly, findings of fact by a state court are entitled to a "pre-
sumption of correctness," which a petitioner, such as Daniels, must rebut
by "clear and convincing evidence." See 28 U.S.C. § 2254(e)(1). Finally,
"even if the state court’s determination that there is no constitutional
error was ‘contrary to’ or ‘an unreasonable application of’ Supreme
Court precedent, we are not permitted to grant habeas corpus relief
unless we are convinced that the error had a ‘substantial and injurious
effect or influence in determining the jury’s verdict.’" Fullwood v. Lee,
290 F.3d 663, 679 (4th Cir. 2002) (quoting Brecht v. Abrahamson, 507
U.S. 619, 637 (1993)).
12 DANIELS v. LEE
witness during the guilt phase and his right to self-
representation (the "Sixth Amendment claim");
(3) that he was unaware of his right to testify in the trial’s
sentencing phase and that he received ineffective assistance
of counsel regarding his right to testify (the "Right to Tes-
tify claim");
(4) that the indictment failed to make the allegations nec-
essary for either the first degree murder conviction or the
death sentence (the "Indictment claim"); and
(5) that the State, in the sentencing phase, presented false
testimony through Dr. White (the "False Testimony claim").
As in many cases involving AEDPA issues, this proceeding
presents an issue of procedural default. On the Closing Argument
claim, Daniels failed to object to the prosecution’s closing argument
during the trial’s sentencing phase, and the Supreme Court of North
Carolina, on direct appeal, ruled that he had thus failed to preserve
any error arising from that argument. Daniels, 446 S.E.2d at 298.
Unless Daniels can show cause and prejudice,7 we are procedurally
barred from considering his Closing Argument claim. Davis v.
Allbrooks, 778 F.2d 168, 174 (4th Cir. 1985). By contrast, Daniels
exhausted his state court remedies on his Sixth Amendment claim, his
Right To Testify claim, and his Indictment claim. Those three claims
are subject, in this proceeding, to the deference mandated by AEDPA
for state court decisions. In particular, the Sixth Amendment claim
was decided on Daniels’s direct appeal to the Supreme Court of North
Carolina, see Daniels, 446 S.E.2d at 298; his Right to Testify claim
was decided by the Second MAR Court, see Second MAR Decision
at 9-11; and his Indictment claim was decided by the Supreme Court
of North Carolina in its Summary Opinion. See Summary Opinion at
7
To show cause for a procedural default, a petitioner must demonstrate
that the "factual or legal basis for [the] claim was not reasonably avail-
able" at the time of the default. Fisher v. Angelone, 163 F.3d 835, 845
(4th Cir. 1998) (internal citations and quotations omitted). He must also
show actual prejudice resulting from his failure to timely object or
present the claim. Waye v. Townley, 871 F.2d 18, 20 (4th Cir. 1989).
DANIELS v. LEE 13
1. Finally, Daniels’s fifth and final claim, the False Testimony claim,
was never adjudicated on its merits in state court. Indeed, the evi-
dence on which it is premised was only discovered by Daniels in Jan-
uary of 2001, when he completed discovery following the § 1415(f)
Proceeding. The State, however, has waived any exhaustion require-
ment on the False Testimony claim. And because that claim was
never adjudicated in state court, it does not trigger the deference man-
date of AEDPA.
IV.
A.
Turning to our assessment of Daniels’s claims, we first consider his
Closing Argument claim, i.e., his assertion that the prosecution made
a constitutionally defective closing argument to the jury during his
trial’s sentencing phase. This claim has two prongs: first, Daniels con-
tends that the State violated his Fourteenth Amendment due process
rights by improperly seeking the death penalty on the basis of quota-
tions from the Old Testament of the Bible; and second, he maintains
that the prosecution violated the Eighth Amendment by suggesting
that the jury was not ultimately responsible for the imposition of the
death penalty. Daniels acknowledges, as he must, that he failed to
timely object to either of these alleged errors in the prosecution’s
closing argument. While he sought to raise these issues on direct
appeal, the Supreme Court of North Carolina concluded that Daniels
had failed to properly preserve either aspect of the Closing Argument
claim. It therefore reviewed the record only to assess whether the
prosecutor’s comments "so infected the trial with unfairness as to
make the resulting conviction a denial of due process." Daniels, 446
S.E.2d at 319 (internal quotations and citations omitted).8 In so doing,
the court concluded that the prosecution’s closing argument did not
deny Daniels his due process rights.
Having failed to preserve these issues for his direct appeal, Daniels
did not obtain an adjudication on the merits of his Closing Argument
8
When a defendant fails to timely object and properly preserve an issue
for appeal, the Supreme Court of North Carolina reviews the record for
plain error. See Davis v. Allbrooks, 778 F.2d 168, 176 (4th Cir. 1985).
14 DANIELS v. LEE
claim in state court. As a result, we are procedurally barred from con-
sidering this claim, unless Daniels can show cause and prejudice for
his failure to preserve the issue by a timely objection. See Davis, 778
F.2d at 174 (citing Wainwright v. Sykes, 433 U.S. 72, 82 (1977)). A
federal court is unable to consider a claim dismissed by a state court
on a procedural ground, unless the petitioner shows cause and preju-
dice in failing to follow the relevant state procedure. Wainwright, 433
U.S. at 82. In Davis, we held that the Wainwright rule applies when
a state court also discusses the claim on its merits, e.g., in conducting
a plain error review having found a procedural default. 778 F.2d at
176; see also Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001)
("We have held that [a] contemporaneous objection rule . . . bars fed-
eral habeas review absent a showing of cause and prejudice. . . .
Moreover, we view a state appellate court’s review for plain error as
the enforcement of a procedural default."). Simply put, Daniels has
not made the necessary showing of cause and prejudice. Indeed, Dan-
iels has alleged neither cause nor prejudice with respect to his failure
to timely object to the prosecution’s closing argument. We are there-
fore precluded from considering the merits of the Closing Argument
claim, and we are thus unable, on this claim, to decide that Daniels
has made a substantial showing of the denial of a constitutional right.
Accordingly, we decline to issue a COA with respect to the Closing
Argument claim.
B.
Daniels’s Sixth Amendment claim has two aspects: (1) his right to
call witnesses during his trial, and (2) his right to self-representation.9
Specifically, Daniels sought to call Isabel Day, a Public Defender in
Mecklenburg County, to testify during the trial’s guilt phase regarding
his incapacity on the night he committed the offenses for which he
was convicted and sentenced. After his confession on January 18,
1990, Daniels was committed to Dorothea Dix Hospital in Raleigh,
9
The Sixth Amendment provides, inter alia, that: "[i]n all criminal
prosecutions, the accused shall enjoy the right to have compulsory pro-
cess for obtaining witnesses in his favor, and to have the Assistance of
Counsel for his defence." U.S. Const. amend. VI. The compulsory pro-
cess aspect of Daniels’s "Sixth Amendment claim" is also grounded in
Fourteenth Amendment due process.
DANIELS v. LEE 15
North Carolina. Ms. Day represented Daniels in the commitment pro-
ceeding, and she spoke with and observed him for approximately an
hour before his admission to the hospital. During a pre-trial suppres-
sion hearing, Ms. Day testified regarding Daniels’s mental condition
on the night of the offenses. The court, however, refused to allow her
to testify during the trial’s guilt phase because Grady Jessup, an
Assistant Public Defender who worked with Ms. Day, was one of
Daniels’s two trial lawyers. In seeking to enable Ms. Day to testify
at trial, Mr. Jessup unsuccessfully sought to withdraw from his repre-
sentation of Daniels.
Daniels raised these issues in his direct appeal to the Supreme
Court of North Carolina. In deciding them, the court first considered
whether Ms. Day should have been allowed to testify at trial. Daniels,
446 S.E.2d at 315. It began its analysis by recognizing that North Car-
olina’s rules of professional responsibility provide that a "party’s
attorney or any other member of the attorney’s firm ordinarily may
not testify as a witness." Id. at 312 (citing N.C. Rules of Prof’l Con-
duct, R. 5.2). Further, it observed that so long as "witnesses are avail-
able who can provide the information sought, [a court can refuse to]
to permit an attorney for a party to testify." Id. Upon reviewing the
record, the court concluded that the "substance of Mrs. Day’s testi-
mony about defendant’s behavior was revealed through other testi-
mony." Id. Thus, the Supreme Court of North Carolina deemed Ms.
Day’s testimony cumulative, because adequate testimony was
presented from other witnesses, and it held that there was no error in
excluding it. Id. Finally, the court concluded that the trial judge had
properly refused to permit Mr. Jessup to withdraw as counsel for Dan-
iels. Id.
In this proceeding, Daniels asserts that his inability to call Ms. Day
as a witness violated his Sixth Amendment right to compulsory pro-
cess and that the denial of Mr. Jessup’s motion to withdraw violated
his right of self-representation. We will assess each aspect of the
Sixth Amendment claim in turn.
1.
The Supreme Court has observed that the "right to offer testimony
of witnesses . . . if necessary, is in plain terms the right to present a
16 DANIELS v. LEE
defense, the right to present the defendant’s version of the facts as
well as the prosecution’s to the jury so that it may decide where the
truth lies. . . . The right is a fundamental element of due process of
law." Washington v. Texas, 388 U.S. 14, 19 (1967). The right to call
witnesses is not absolute, however, and it may "bow to accommodate
other legitimate interests." Chambers v. Mississippi, 410 U.S. 284,
295 (1973). In fact, a petitioner "cannot establish a violation of his
constitutional right to compulsory process merely by showing that
[the court] deprived him of their testimony. He must at least make
some plausible showing of how their testimony would have been both
material and favorable to his defense." United States v. Valenzuela-
Bernal, 458 U.S. 858, 867 (1982).
In this instance, as the Supreme Court of North Carolina observed,
several witnesses had already testified during the guilt phase regard-
ing Daniels’s mental state on the evening of the offenses. They
included Lieutenant Bradshaw of the Sheriff’s Department, who was
present when Ms. Day met with Daniels. According to the Supreme
Court of North Carolina, Lt. Bradshaw "testified that defendant was
‘[w]ithdrawn’ and just stared at the floor. He further surmised that
defendant was shaking and ‘possibly . . . in shock.’ Bradshaw testified
that defendant did not seem to understand what was being said to him
and that he was unresponsive to Mrs. Day." Daniels, 446 S.E.2d at
318. Daniels also presented other witnesses who testified to his inca-
pacity. Thus, because witnesses had testified regarding Daniels’s
mental status on the evening of the offenses, it was reasonable for the
Supreme Court of North Carolina to conclude that the trial testimony
he sought from Ms. Day was cumulative and not essential to his
defense. See generally United States v. Fuentes-Cariaga, 209 F.3d
1140, 1144 (9th Cir. 2001) ("[T]he right to present a defense is funda-
mental, but exclusion of evidence reached constitutional proportions
in Washington and Chambers only because it significantly under-
mined fundamental elements of the accused’s defense." (internal quo-
tations and citations omitted)); Romano v. Gibson, 239 F.3d 1156,
1166 (10th Cir. 2001) (denying habeas corpus relief on compulsory
process claim because defendant had presented evidence on same
subject as witness’s proffered testimony).
2.
Daniels also maintains that the trial court’s denial of Mr. Jessup’s
motion to withdraw as his counsel violated his constitutional right of
DANIELS v. LEE 17
self-representation. Daniels correctly asserts that the Sixth Amend-
ment right to the assistance of counsel includes the right to forego
such assistance and to represent oneself. Faretta v. California, 422
U.S. 806, 814 (1975). In order to show a violation of the right of self-
representation, however, an assertion of that right must be (1) clear
and unequivocal; (2) knowing, intelligent, and voluntary; and (3)
timely. United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000).
This prong of Daniels’s Sixth Amendment claim verges on being
frivolous. One of Daniels’s two defense lawyers, Mr. Jessup, had
moved to withdraw from the trial so that Ms. Day could testify. And
if the court had granted the motion, Daniels would still have been rep-
resented by his other trial attorney. Indeed, Daniels never indicated to
the trial court that he had any desire to represent himself; and a funda-
mental part of the Faretta doctrine is that the defendant must clearly
and unequivocally assert his right to self-representation. See, e.g.,
Frazier-el, 204 F.3d at 558; Munkus v. Furlong, 170 F.3d 980, 983
(10th Cir. 1999); United States v. Allen, 789 F.2d 90, 94 (1st Cir.
1986) (holding that right of self-representation did not attach because
defendant had made no indication of his desire to proceed without
counsel); Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982)
("While the right to counsel is in force until waived, the right of self-
representation does not attach until asserted."). Because Daniels did
not assert his right of self-representation at trial, that right cannot have
been infringed in these proceedings.
3.
In sum, Daniels is unable, on his Sixth Amendment claim, to make
a substantial showing of the denial of a constitutional right. In light
of the deference we must accord the Supreme Court of North Caro-
lina, this claim is inadequate to "deserve encouragement to proceed
further." Slack, 529 U.S. at 484. Thus, Daniels is not entitled to a
COA on either prong of his Sixth Amendment claim.
C.
We next turn to Daniels’s Right to Testify claim, which arises out
of rights protected by the Sixth and Fourteenth Amendments. This
claim also has two prongs: first, Daniels maintains that he was
18 DANIELS v. LEE
unaware of his right to testify at his trial’s sentencing phase; and sec-
ond, he maintains that his lawyers were ineffective both in failing to
make him aware of that right and in failing to compel him to testify.
In support of this claim, Daniels asserts by affidavit that he did not
know of his right to testify at the sentencing phase, and he states that
he would have testified to his remorse had he known that he could do
so. Further, both of Daniels’s trial attorneys have stated in affidavits
that, although they spoke with Daniels about testifying during the
trial’s guilt phase, they do not recall advising him that he was entitled
to testify in the sentencing phase.
Daniels presented his Right to Testify claim to the Second MAR
Court, which concluded that Daniels’s "affidavits and the transcript
demonstrate that [he] knew he had a fundamental right to testify [at
the sentencing phase] and that he waived his right to testify by failing
[to do so]." Second MAR Decision at 9. Further, the Second MAR
Court found that neither "the transcript nor defendant’s affidavits sup-
port a conclusion that [he] was deprived of his right to effective assis-
tance of counsel by his counsel’s advice concerning his right to
testify." Id.
1.
It is elementary "that a defendant in a criminal trial has a constitu-
tional right to testify on his own behalf." United States v. McMeans,
927 F.2d 162, 163 (4th Cir. 1992) (citing Rock v. Arkansas, 483 U.S.
44, 51 (1987)). And it is "the defendant who retains the ultimate
authority to decide whether or not to testify." Id. (citing Jones v.
Barnes, 463 U.S. 745, 751 (1983)). In this instance, however, the Sec-
ond MAR Court specifically found that Daniels was aware of his right
to testify in the trial’s sentencing phase, and it found that he had
waived that right. And Daniels failed to present any clear and con-
vincing evidence to rebut the presumption of correctness we must
afford to such state court findings under AEDPA.
First, the record reflects that Daniels was present during the trial’s
voir dire proceedings when his lawyers questioned prospective jurors
on how they would react if Daniels decided not to testify. Second,
Daniels had initially expressed a desire to testify during the guilt
phase but, after discussing the matter with his lawyers, he had decided
DANIELS v. LEE 19
not to take the stand. Finally, at the outset of the trial’s sentencing
phase, the court advised all those present, including Daniels, as fol-
lows:
All right, before we bring the jury in, let me say that for this
phase of the trial, I have requested that the deputies leave
the leg irons on Mr. Daniels. Now, even though I have
requested that, that will not be displayed in the presence of
the jury if Mr. Daniels decides to take the witness stand and
testify.
Id. It was on this evidence that the Second MAR Court found that
Daniels was aware of his right to testify during the entire trial, and
that he had waived that right. Id. Other than offering general after-the-
fact denials that he was unaware of his right to testify during the sen-
tencing phase, Daniels provided the district court with no evidence to
rebut the Second MAR Court’s findings. Accordingly, Daniels has
failed to offer any clear and convincing evidence to displace those
findings. 28 U.S.C. § 2254(e)(1).
2.
The ineffective assistance of counsel prong of Daniels’s Right to
Testify claim is similarly unavailing. To prevail on an ineffective
assistance claim, a habeas corpus petitioner must satisfy the two-
pronged test of Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, he must show "that counsel’s performance was deficient,"
meaning that "counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment." Id. Second, he must show "that the deficient perfor-
mance prejudiced the defense." Id. Daniels bases part of this claim’s
ineffective assistance prong on his assertion that he was unaware of
his right to testify in his trial’s sentencing phase. While "the burden
shouldered by trial counsel [to inform defendant of right to testify] is
a component of effective assistance," Sexton v. French, 163 F.3d 874,
882 (4th Cir. 1998), Daniels was, as the Second MAR Court found,
aware of his right to testify in the trial’s sentencing phase. Thus, his
contention that his lawyers were ineffective in failing to inform him
of his right to testify must fail.
20 DANIELS v. LEE
Daniels’s related contention that his lawyers failed to compel him
to testify in his trial’s sentencing phase is similarly unavailing. In this
regard, the Second MAR Court concluded that Daniels’s lawyers
were appropriately concerned with and aware of his right to testify.
Indeed, during voir dire, his lawyers questioned potential jurors about
how they might react if Daniels did not testify. As the Second MAR
Court found, Daniels wanted to testify during the trial’s guilt phase.
Second MAR Decision at 11. His lawyers, however, warned against
his taking the stand, and Daniels changed his mind and did not testify.
Id. Finally, in order to ensure that a witness testified regarding Dan-
iels’s remorse, his lawyers called Daniels’s mother to the stand in the
trial’s sentencing phase. She advised the jury that her son had indeed
expressed remorse for his crimes. Thus, the record — particularly as
reflected in the Second MAR Opinion — indicates that Daniels’s law-
yers made a tactical decision that Daniels should not testify in the sen-
tencing phase. Cf. Carter v. Lee, 283 F.3d 240, 249 (4th Cir. 2002)
("[T]he advice provided by a criminal defense lawyer on whether his
client should testify is a paradigm of the type of tactical decision that
cannot be challenged as evidence of ineffective assistance.") (internal
quotations and citations omitted). Accordingly, Daniels has failed to
make a substantial showing that the performance of his defense law-
yers was constitutionally deficient.
3.
In sum, Daniels has failed to provide us with any basis for deeming
unreasonable the Second MAR Court’s finding that he was aware of
his right to testify at the trial’s sentencing phase. Assessing both
prongs of his Right to Testify claim, we conclude that Daniels has
failed to establish that it is "adequate to deserve encouragement to
proceed further." See Slack, 529 U.S. at 484. Because he has failed
to make a substantial showing of the denial of a constitutional right,
Daniels is not entitled to a COA on either prong of this claim.
D.
In his Indictment claim, Daniels maintains that his murder convic-
tion and death sentence are invalid because the state court indictment
failed to allege the necessary elements of the murder offense, and
because it failed to allege the aggravating factors essential to the
DANIELS v. LEE 21
death penalty. He contends that the deficiencies of the indictment ren-
der his conviction and sentence unconstitutional pursuant to the
Supreme Court’s decisions in Ring v. Arizona, 122 S. Ct. 2428(2002); Harris v. United States, 122 S. Ct. 2406 (2002); Apprendi v.
New Jersey, 530 U.S. 466 (2000); Jones v. United States, 526 U.S.
227 (1999); and Hodgson v. Vermont, 168 U.S. 262 (1897).10 In Janu-
ary of 2001 — before Ring or Harris had been decided, but after the
Supreme Court’s decisions in Apprendi, Jones, and Hodgson — Dan-
iels presented this claim in a habeas corpus petition to the Supreme
Court of North Carolina. That court denied the claim in a summary
fashion, without elaboration or explanation. See Summary Opinion at
1.11
The Apprendi, Jones, and Harris decisions establish the principle
that, in order to pass constitutional muster, the elements of a criminal
offense must be submitted to the jury and proven beyond a reasonable
doubt. See Harris, 122 S. Ct. at 2413-14; Apprendi, 530 U.S. at 489-
90; Jones, 526 U.S. at 232, 246. Further, in Ring, the Court held that
a jury must determine the presence or absence of aggravating factors
when those factors are essential to imposition of the death penalty.
See Ring, 120 S. Ct. at 2439-44. In considering the Indictment claim,
however, we must decide, pursuant to 28 U.S.C. § 2254(d)(1),
whether the state court decision being challenged, i.e., the Summary
Opinion, was contrary to, or an unreasonable application of, clearly
established law, as determined by the Supreme Court of the United
States as of the time Daniels’s conviction became final.12 See Muhl-
10
The Indictment claim is premised on the Fifth and Fourteenth
Amendments’ guarantees of due process.
11
If a state court has failed to "articulate the rationale for its decision,
our review is no less deferential than it is when we review a detailed state
court analysis of a petitioner’s claim." Hartman v. Lee, 283 F.3d 190,
194 (4th Cir. 2002) (citing Bell v. Jarvis, 236 F.3d 149, 158, 163 (4th
Cir. 2000)). We will, nevertheless, "conduct an independent review of
the record and the applicable law to determine whether the result reached
by the state court contravenes or unreasonably applies clearly established
federal law." Id. (internal quotation and citations omitted).
12
Under 28 U.S.C. § 2254(d)(1), we review "clearly established law, as
determined by the Supreme Court of the United States . . . as of the time
of the relevant state court decision." Williams, 529 U.S. at 378-79 (citing
22 DANIELS v. LEE
eisen v. Ieyoub, 168 F.3d 840, 844 (5th Cir. 1999) ("[Under AEDPA,
federal courts] can grant a writ of habeas corpus only if the state
court’s determination of law . . . violated Supreme Court precedent
in existence at the time of the petitioner’s conviction."). Because the
principles of Ring, Harris, Jones, and Apprendi had not been clearly
established when Daniels’s conviction became final in 1995,13 those
decisions cannot serve as bases for invalidating either his murder con-
viction or his sentence.
Finally, we have held that North Carolina’s short-form murder
indictment does not contravene the Supreme Court’s long- standing
decision in Hodgson. See Hartman, 283 F.3d at 197. Thus, the Sum-
mary Opinion was neither contrary to, nor an unreasonable applica-
tion of, "clearly established Federal law, as determined by the
Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), and the
Indictment claim does not warrant the issuance of a COA.
E.
In his final assertion of error, the False Testimony claim, Daniels
contends that the prosecution knowingly presented false testimony to
the jury, through one of its witnesses, Dr. White. As we noted above,
Daniels failed to present this claim in any state court proceeding
because he did not discover the alleged false testimony until after his
28 U.S.C. 2254(d)(1)). The phrase "the time of the relevant state court
decision," however, "obviously refers to the time of the state court con-
viction being attacked . . . and not the time of the state court decision
denying collateral relief from the conviction." Williams v. Cain, 229 F.3d
468, 475 n.6 (5th Cir. 2000). Indeed, any other interpretation would "al-
most completely eviscerate the previous law of non-retroactivity and
would vastly expand, rather than add a new constraint on, the power of
federal courts to grant habeas relief to state prisoners." Id. (citing Wil-
liams v. Taylor, 529 U.S. at 378-79).
13
Daniels’s conviction became final on January 23, 1995, when the
Supreme Court denied his certiorari petition on his direct appeal. Daniels
v. North Carolina, 513 U.S. 1135 (1995) (denying Daniels’s petition for
certiorari); Satcher v. Pruett, 126 F.3d 561, 574 (4th Cir. 1997) (observ-
ing that conviction became final when Supreme Court denied certiorari
on direct appeal).
DANIELS v. LEE 23
Second MAR had been denied by the Second MAR Court. Because
the False Testimony claim was never adjudicated on its merits in state
court, we owe no AEDPA deference to any state court findings of fact
on this issue.
1.
The legal basis for this claim is the Fourteenth Amendment’s Due
Process Clause. A state "denies a defendant due process by knowingly
offering or failing to correct false testimony." Basden v. Lee, 290 F.3d
602, 614 (4th Cir. 2002) (citing Napue v. Illinois, 360 U.S. 264, 269
(1959)). Furthermore, "[a] Napue claim requires a showing of the fal-
sity and materiality of testimony." Id. False testimony is "material"
when "‘there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury.’" Boyd v. French, 147
F.3d 319, 329-30 (4th Cir. 1998) (quoting Kyles v. Whitley, 514 U.S.
419, 433 (1995)).
2.
Daniels’s allegation of false testimony relates solely to the evi-
dence presented by Dr. White during the sentencing phase. Based
upon her education, expertise, and prior experience as an expert wit-
ness, the court qualified Dr. White as an expert in general psychiatry
with an emphasis on substance abuse. She testified that, in preparing
for her court appearance, she had reviewed various materials, includ-
ing Daniels’s confession; his employment files; his military records;
the evaluations of Daniels completed by Drs. Bolinsky, Gross, and
Tyson; and the police report on Daniels’s criminal activity. Dr. White
testified that, prior to forming her opinions, she had interviewed Dan-
iels’s estranged wife, "some of his high school classmates[,] one of
his supervisors in the service during the time that [Daniels] was in the
Marines," and his former employer. Summary Judgment Order at 33.
Dr. White testified that she based her opinions on the materials she
had reviewed and on the interviews she had conducted. Id.In support of the False Testimony claim, Daniels asserts that, just
prior to trial, the prosecution sent Dr. White certain additional materi-
als concerning Daniels’s case. These additional materials included
police reports, documents relating to his prior criminal record, his
24 DANIELS v. LEE
Marine Corps Reserves file, and an article about violent behavior and
cocaine, which the prosecution described to her as a "favorite of
[Daniels’s psychiatrist] Dr. Bolinsky." Two days before her appear-
ance in the trial’s sentencing phase, Dr. White arrived in Mecklenburg
County. The morning after her arrival, the prosecutor left a note for
a member of his staff, requesting that Dr. White do the following:
(1) interview Daniels’s wife, Diane Daniels, and discuss
photos of Daniels’s and Diane’s son Maurice;
(2) meet with Daniels’s coworkers and supervisors and
review his personnel file;
(3) ensure that Daniels’s coworkers and supervisors under-
stood that they might have to testify;
(4) interview Sergeant Tillman and Jimmy James, both
acquaintances of Daniels.
The prosecutor’s note observed that interviewing Sgt. Tillman was "a
hassle[,] but it may be important at trial to show the basis of [Dr.
White’s] opinion." The note also stated that "all of this needs to be
done by 2:00 p.m. [because] Dr. White may testify this afternoon."
On the basis of this note and the related events, Daniels claims that
the prosecution requested that Dr. White interview the witnesses
solely to bolster her credibility, and that she had already formed her
opinions before the interviews. Daniels contends that Dr. White’s tes-
timony that her opinions were based in part on the interviews was
thus false, and that this false testimony was prejudicial to him in the
trial’s sentencing phase.
Daniels also alleges that Dr. White testified falsely regarding the
number of Daniels’s classmates that she interviewed. Daniels asserts
that Dr. White testified that she had "interviewed some of his high
school classmates." The material discovered pursuant to § 1415(f),
however, indicates that she interviewed only one classmate. On this
basis, Daniels maintains that Dr. White falsely represented to the jury
the extent of her interviews.
DANIELS v. LEE 25
In our view, reasonable jurists would agree that Daniels’s allega-
tions on this issue do not "deserve encouragement to proceed further."
Slack, 529 U.S. at 484. First, the fact that Dr. White interviewed wit-
nesses the day before she testified fails to indicate that her opinions
were not premised, in part, on those interviews. Indeed, Daniels has
failed to allege or demonstrate any factual basis for his assertion that
Dr. White’s interviews did not assist in the development of her opin-
ions. See generally McCarver, 221 F.3d at 597-98 (denying COA
because petitioner failed to allege facts that would aid his claims).
Second, Daniels’s allegation that Dr. White testified as to the spe-
cific number of classmates she had interviewed is spurious. Although
she testified that she had interviewed some of his "classmates," she
later testified — still on direct examination — that she premised her
opinions in part on her "interview with the high school classmate."
Had there been any possibility of confusion, it was eliminated when
Dr. White corrected herself.
Thus, Daniels has failed to make a substantial showing of the
denial of a constitutional right on his False Testimony claim. We
therefore decline to issue a COA on this claim.
V.
For the foregoing reasons, we are unable to issue a certificate of
appealability on any of Daniels’s claims, and we must dismiss his
appeal.
CERTIFICATE OF APPEALABILITY
DENIED AND APPEAL DISMISSED