UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-6551 

RICHARD L. MCLEOD, 

 Petitioner - Appellant, 

 v. 

JAMES V. PEGUESE, Warden, 

 Respondent - Appellee. 

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Andre M. Davis, District Judge. 

(1:05-cv-01589-AMD) 

Argued: October 28, 2008 Decided: July 22, 2009 

Before WILKINSON and AGEE, Circuit Judges, and John T. 

COPENHAVER, Jr., United States District Judge for the Southern 

District of West Virginia, sitting by designation. 

Affirmed by unpublished opinion. Judge Copenhaver wrote the 

opinion, in which Judge Wilkinson and Judge Agee joined. 

ARGUED: Mitchell Scott Ettinger, SKADDEN, ARPS, SLATE, MEAGHER & 

FLOM, L.L.P., Washington, D.C., for Appellant. Edward John 

Kelley, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, 

Maryland, for Appellee. ON BRIEF: Douglas F. Gansler, Attorney 

General of Maryland, Baltimore, Maryland for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
COPENHAVER, District Judge: 

 On October 27, 1992 a Maryland jury convicted Richard 

Lawton McLeod of the murder of Jacqueline Roberson. He was 

sentenced to life in prison without the possibility of parole. 

The Court of Special Appeals of Maryland affirmed his conviction 

on June 21, 1993, and his sentence on August 26, 1994. McLeod’s 

petition for a writ of certiorari was denied by the Maryland 

Court of Appeals on December 16, 1994. His petition for postconviction relief to the Circuit Court for Prince George’s 

County, where he had been convicted, was denied on February 25, 

1998; leave to appeal was also denied. On July 16, 2001 McLeod 

filed a pro se petition under 28 U.S.C. § 2254 for a writ of 

habeas corpus with the United States District Court for the 

District of Maryland, which was denied as being time-barred. 

Arguing that new evidence had been discovered that ought to 

have been disclosed to him by the State under Brady v. Maryland, 

373 U.S. 83 (1963), McLeod returned to the Circuit Court for 

Prince George’s County and filed a motion to re-open his postconviction proceedings on April 22, 2003. Following a two-day 

evidentiary hearing in January, 2004, that court issued a 

statement of reasons, which included findings of fact, denying 

the motion. 

On June 1, 2005 this court granted McLeod’s motion for 

authorization to file a second or successive § 2254 petition for 

2 
a writ of habeas corpus. See 28 U.S.C. § 2244(b)(3)(A). 

Following a non-evidentiary hearing, the district court, on 

March 30, 2007, dismissed the petition with prejudice. McLeod 

v. Peguese, 482 F. Supp. 2d 658 (D. Md. 2007). The district 

court did grant McLeod’s application for a certificate of 

appealability. See 28 U.S.C. § 2253(c)(1)(A). This appeal 

ensued. 

Because McLeod has failed to meet the threshold requirement 

of 28 U.S.C. § 2244(b)(2)(B)(ii), his successive § 2254 petition 

must be dismissed. That is, McLeod has failed to show that the 

facts underlying his due process Brady claim, if proven and 

viewed in light of the evidence as a whole, would be sufficient 

to establish by clear and convincing evidence that, but for 

constitutional error, no reasonable factfinder would have found 

him guilty of murder. See § 2244(b)(2)(B)(ii). 

Proceeding nevertheless to the merits, as did the district 

court, McLeod has not shown that the Circuit Court for Prince 

George’s County made an objectively unreasonable determination 

of the facts in light of all the evidence presented to it, or 

that it unreasonably applied clearly established federal law as 

determined by the Supreme Court of the United States. See § 

2254(d). 

We affirm. 

3 
I. 

 Jacqueline Roberson, then twenty-eight years old, was last 

seen waxing her car off to the side of Governor’s Bridge Road 

near the entrance to Izaak Walton League Park in Bowie, Maryland 

on August 10, 1987. Three days later Roberson’s nude body was 

discovered in a wooded area approximately three hundred feet 

from the road. Her body was found under leaves and branches, 

face down, with her hands underneath her body and her legs 

spread apart. Roberson’s clothing, consisting of a white 

strapped t-shirt, a navy blue cut-off t-shirt and a pair of 

light blue jeans which had been cut off and made into shorts, 

were found next to her body. Her undergarments were found 

beneath her. The cause of death was determined to be two stab 

wounds to the abdomen, which had not been inflicted through the 

clothing. There was no evidence of vaginal or anal penetration, 

and an autopsy failed to reveal the presence of semen in or on 

her person. 

 A red “WMZQ, Country FM” bandana and a knife were found at 

or near the crime scene. Hair found on the bandana, which was 

next to Roberson’s body, was determined to be that of a cat. No 

fingerprints or blood residue were found on the knife, which was 

discovered on the unpaved shoulder of Governor’s Bridge Road 

approximately one-hundred and fifty feet east of the entrance to 

Izaak Walton League Park. Six latent fingerprints were 

4 
discovered on Roberson’s car, none of which have been 

identified. 

 On August 13, 1987, the same day Roberson’s body was 

discovered, McLeod was arrested for the rape of fifteen year old 

Lori Webb. Webb was raped in her home earlier that day, and at 

the time of the rape was wearing a purple shirt and white shorts 

with thin red stripes. McLeod subsequently pled guilty to 

raping Webb and was sentenced to forty years in prison with 

fifteen years suspended. 

 Detective Robert Edgar, and other members of the Prince 

George’s County Police Department (“PGPD”), interviewed a number 

of prospective witnesses and suspects in connection with the 

Roberson murder between August 13, 1987 and February 1, 1988. 

During this time, members of the PGPD interviewed Pamela Sue 

Fike. Fike informed the PGPD that she was told by her brother, 

Christopher Fike, that Harold Freese told him that “the 

Saunders” were at Governor’s Bridge Road on August 10, 1987. 

Pamela Fike’s brother also told her that he believed the 

Saunders may have killed Roberson because “they are the type 

that may do something like that.” Fike’s statement was 

memorialized in an undated, but signed, witness statement. 

 On August 15, 1987, two days after McLeod’s arrest for the 

rape of Webb, his mother, Barbara Bricker, found a pair of 

shorts in McLeod’s room with a wax-like substance in the crotch 

5 
area. She immediately contacted the PGPD. Detective Edgar went 

to Bricker’s home where he was given the shorts and other items 

of McLeod’s clothing. At this point, McLeod became a suspect in 

the Roberson murder. 

 Edgar first interviewed McLeod regarding Roberson’s murder 

on February 1, 1988 at the Prince George’s County Detention 

Center (“Detention Center”). During the interview, McLeod 

denied any involvement in, or knowledge of, the murder and 

provided a written statement. On that same day, and despite his 

denials, McLeod was charged with the murder of Roberson and 

related offenses. The following month, however, in March of 

1988, the charges were nolle prossed. 

 Following withdrawal of the charges against McLeod, the 

Roberson murder investigation remained at a standstill for more 

than two years. At some point in 1991, Edgar decided to once 

again actively pursue the case, enlisting the assistance of 

Detective Douglas LaFoille to that end. During the summer of 

1991, Edgar and LaFoille asked one of McLeod’s acquaintances to 

send McLeod a letter designed to elicit an admission from McLeod 

regarding his involvement in the Roberson murder. Upon receipt 

of the letter, McLeod demanded that the letter’s true author 

contact him. 

 During an October 2, 1991 interview conducted by Edgar and 

LaFoille, McLeod again denied any involvement in the Roberson 

6 
murder. McLeod told the detectives that after being charged in 

February of 1988, he was approached by a fellow inmate named 

“Rick.” McLeod said that Rick, who was later determined to be 

Richard Nelson, told him that he knew that McLeod had not 

murdered Roberson and that he knew who did. At the time of the 

interview, McLeod told the detectives that Nelson had provided 

the name of Roberson’s killer, but McLeod could not recall the 

name. Some 12 years later, however, during the circuit court’s 

hearing in 2004 on McLeod’s motion to re-open the postconviction proceedings, McLeod testified that Nelson stated that 

the murderer’s name was “Brian.” Nelson allegedly told McLeod 

that Roberson was killed because she happened upon a drug deal 

and was “in the wrong place at the wrong time.” McLeod informed 

the detectives that Nelson had refused to speak with authorities 

and would deny ever having discussed the murder. McLeod also 

provided two written statements, one setting forth what he could 

recall of his conversation with Nelson, and the other regarding 

his whereabouts on the day of Roberson’s murder. 

 Nelson was known by the PGPD and the State’s Attorneys 

Office to be a violent man with an extensive criminal history. 

Following the 1991 interview with McLeod, the PGPD undertook 

extensive efforts to locate him. At the time, the PGPD believed 

Nelson was either a suspect, or a material witness, in the 

Roberson murder. In furtherance of the effort to locate 

7 
Nelson, Edgar and LaFoille sought the assistance of state, 

federal and international law enforcement agencies. The 

detectives also contacted Nelson’s family members, friends and 

acquaintances. In the fall of 1991, LaFoille was in contact 

with Nelson’s ex-wife, Karen Clark. As will be seen, the extent 

of the contacts, and the information exchanged between LaFoille 

and Clark, are in sharp dispute. Ultimately, the efforts to 

locate Nelson were to no avail. He was never found and his 

whereabouts remain unknown. 

 In April of 1992, McLeod was indicted for Roberson’s 

murder. Prior to trial, defense counsel moved to compel 

discovery, complaining that the State had not complied with its 

obligations under Brady. The trial court directed the State to 

produce any witness statements arguably containing exculpatory 

information. In an attempt to comply with the court’s 

directive, the lead prosecutor, Laura Gwinn, sent defense 

counsel a letter. The letter made no reference to Nelson’s exwife, Karen Clark, and failed to disclose that the state 

possessed Pamela Fike’s written statement regarding what she had 

been told by her brother. The State did, however, provide the 

defense with a list of prosecution witnesses containing eightythree names, including Fike’s. The defense attempted to locate 

Fike, but was unable to do so. 

8 
 Beginning on October 21, 1992, McLeod was tried before a 

jury for the murder of Roberson and carrying a dangerous weapon 

openly with the intent to injure. The State presented evidence 

that McLeod owned a bandana and a knife like those found at the 

scene. The State also showed that McLeod lived in a home with 

cats, which, according to the State, explained why cat hair was 

found on the bandana. Members of McLeod’s family testified that 

when they visited him at the Detention Center following his 

arrest for the rape of Webb, they asked why he had been 

arrested. According to McLeod’s step-father, William Bricker, 

McLeod responded “rape, murder, something.” McLeod’s mother 

testified that McLeod responded by asking “was it murder, was it 

rape or what? He seemed very confused.” McLeod’s mother and 

step-father testified further that when asked how he could rape 

a fifteen year old, McLeod responded, “I thought she was older.” 

When asked by his family to describe his victim’s clothing, 

McLeod stated, according to his step-father, “[a] blue pullover 

and blue shorts,” and according to his mother, “a pullover and 

navy blue shorts.” The parties stipulated that Webb, who broke 

down in front of the jury and could not complete her testimony, 

would testify that she was raped in her home by McLeod on August 

13, 1987, and would have identified her clothing. The clothing 

Webb was wearing at the time of her rape was admitted into 

evidence. 

9 
The State offered, and the court admitted, the shorts 

smudged with car wax recovered from McLeod’s room. The 

Turtlewax® brand of car wax found on McLeod’s shorts was shown 

to be the same brand of wax used by Roberson the day of her 

murder. McLeod would typically wax his step-father’s racecar 

once every two weeks, and the police recovered a container of 

Turtlewax® from McLeod’s home. There was a dispute as to the 

last time McLeod waxed his own car, and washed his clothing, 

prior to the murder. McLeod’s mother testified that she 

believed McLeod had waxed his car on August 7, 1987. The State 

also offered evidence that McLeod gave his step-father 

conflicting alibis regarding his whereabouts the night of 

Roberson’s murder. 

The State argued that McLeod may not have acted alone in 

murdering Roberson. At trial, the defense specifically 

referenced other possible suspects, namely, Brian Rose and Wayne 

Hurley. Upon being called by the defense, Rose invoked his 

Fifth Amendment rights and refused to answer any questions. In 

closing, the State made reference to the defense’s claim that 

Rose murdered Roberson, stating “[w]e heard a lot about Brian 

Rose. . . . We heard that he has a red and white striped 

bandana. We heard from his mom that he had a cat.” Based on 

the forgoing, the State argued that the defendant had not 

offered a reasonable hypothesis of innocence, and that based on 

10 
all the evidence, which cumulatively tended to show that McLeod 

was involved in Roberson’s murder, he should be found guilty. 

The defense argued, among other things, that in light of 

the State’s theory that McLeod may not have been the one 

wielding the knife, and because the evidence did not suggest 

that Roberson was killed during the course of an attempted rape, 

McLeod was not guilty of felony murder. The defense also argued 

that other people were seen near the crime scene with red WMQZ 

bandanas, and that the evidence implicated Rose to the same 

extent as McLeod. In sum, the defense argued that the State had 

not met its burden of proof. On October 27, 1992, the jury 

convicted McLeod of first degree felony murder and carrying a 

dangerous weapon openly with intent to injure. McLeod’s 

requests for post conviction relief on the murder charge failed. 

In March of 2001, nine years after his conviction, McLeod 

requested that the red bandana and cat hairs recovered from the 

scene be tested for DNA. The State, however, had destroyed 

those items, McLeod’s shorts, Roberson’s clothing, and the 

latent fingerprints taken from Roberson’s car. 

II. 

According to Karen Clark, she and Detective LaFoille were 

in contact on numerous occasions in the fall of 1991. Clark 

maintains that over the course of these contacts she informed 

11 
LaFoille of the following, which constitutes the core of the 

Brady claim: Nelson was a violent drug addict; during the summer 

of 1987 Nelson gave their son Richard Nelson III a red WMZQ 

bandana and Nelson owned a matching bandana; at some point 

during the summer of 1987 Nelson demanded the return of their 

son’s bandana;1 Nelson was adamant that the bandana be returned 

but would not tell Clark why; during the summer of 1987 she met 

with Nelson and gave him the son’s bandana; Nelson carried 

knives and his favorite knife was wooden handled with brass 

fittings, similar to the one found on the shoulder of Governor’s 

Bridge Road not far from where Roberson’s body was discovered; 

when she saw Nelson during the summer of 1987 she noticed that 

he had a new knife and upon inquiry Nelson told her that he had 

lost his favorite knife; and that Nelson had told her, before 

they married in 1983, that he was present when a young woman 

named Donna Dustin was murdered on November 17, 1973 in Anne 

Arundel County. According to Clark, Nelson stated that Dustin’s 

head had been slammed into the bumper of a car and that his 

knife was used during the assault. Dustin’s body was found 

 1

 Nelson was in a relationship and had a child with a woman 

named Virginia Acree who testified to the circuit court on 

January 13, 2004 that during the summer of 1987, Nelson 

occasionally stayed with her at her apartment in Frederick, 

Maryland. 

12 
approximately three miles from the spot where Roberson’s body 

was found. 

On August 16, 2002, Clark wrote to McLeod in prison 

requesting the name and contact information of his attorney. 

McLeod complied with her request and on August 23, 2002 Clark 

met with McLeod’s counsel, Mitchell Ettinger. In addition to 

the information allegedly provided to Detective LaFoille, Clark 

told McLeod’s attorney that Nelson frequented Rips, a restaurant 

where Roberson worked during the summer. Clark also stated that 

Nelson was associated with Neil Vaughn, one of three individuals 

who acknowledged being near the crime scene the day of 

Roberson’s murder. Clark further informed counsel that during 

the summer of 1987, Nelson lived with his then girlfriend 

Virginia Acree and that Clark had received items from Nelson 

that summer with cat hair on them. Clark provided a business 

card containing the notation, “Hyattsville Chapter Izaak Walton 

League.” The business card was allegedly from Nelson’s 

briefcase, and the notation allegedly in Nelson’s handwriting. 

Finally, Clark told counsel not only of the Donna Dustin murder, 

but also that in the fall of 1980, prior to her 1983 marriage to 

Nelson, he took her to a wooded area in Bowie, Maryland which he 

referred to as his “shrine.” At the “shrine,” Nelson asked 

Clark to lie on the ground and pose “in some particular 

position.” Clark, who was under the impression Nelson wanted 

13 
her to pose in the nude, refused and walked away. Upon turning 

to look back, Clark saw Nelson masturbating. 

Following receipt of this information, McLeod’s attorney 

contacted Acree who confirmed that Nelson stayed with her during 

the summer of 1987. Acree stated that she owned a cat at the 

time and that Nelson owned a number of bandanas, most of them 

red. Acree also confirmed that Nelson was a violent man, and 

that during the summer of 1987, he frequently used drugs. 

 As a result of this new information, on April 22, 2003 

McLeod filed a motion in the Circuit Court for Prince George’s 

County to re-open his post-conviction proceedings. The motion 

requested that the court hold an evidentiary hearing regarding 

alleged Brady violations. McLeod argued that the State failed 

to disclose favorable and material information to the defense in 

the form of Clark’s statements to Detective LaFoille. On 

September 4, 2003 the circuit court scheduled an evidentiary 

hearing. By order dated December 23, 2003, the court directed 

the State and PGPD to produce all witness statements taken in 

connection with the Roberson murder investigation. The only 

statements produced were created on or before February 1, 1988. 

The State confirmed that all evidence of the police 

investigation and all prosecution files created after that date 

had been lost or destroyed. The State did retain and produce 

witness statements taken in connection with its initial 1987 

14 
investigation into the Roberson murder, including the statement 

of Fike. Thus, in January of 2004, McLeod learned for the first 

time of Pamela Fike’s statement that her brother had heard that 

“the Saunders” were at Governor’s Bridge Road on August 10, 

1987, and that her brother had speculated that “the Saunders” 

may have been involved in Roberson’s murder because “they are 

the type that may do something like that.” 

 In January of 2004 the circuit court held an evidentiary 

hearing on McLeod’s motion to re-open the post-conviction 

proceedings. The court heard testimony from, among others, 

McLeod, Clark, Acree, Gwinn, Edgar and LaFoille. Testimony was 

also received from the Chief Investigator of the Anne Arundel 

County State’s Attorneys Office, David Cordle. In the course of 

her continuing quest to learn of Nelson’s whereabouts, Clark 

became aware that Cordle was interested in the 1973 murder of 

Donna Dustin. Besides the Roberson murder, Clark believed 

Nelson was involved in a number of other murders, and in late 

1998 or early 1999 she had contacted Cordle to discuss the 

murders of Dustin and a woman named Jeany Kline. Clark 

contacted Cordle again in December of 2000, and on February 9, 

2001 Cordle spoke with Detective LaFoille. At the hearing 

numerous inconsistencies emerged regarding the content of the 

conversations of each Clark and Cordle with LaFoille. See infra

pp. 29-34. 

15 
In its July 11, 2004 statement of reasons, the circuit 

court concluded that, 

[w]hen examining the totality of the circumstances and 

evidence presented at the hearing, as it relates to 

the credibility of Karen Clark and Detective Douglas 

LaFoille, the Court finds Detective LaFoille to be the 

more credible witness. Consequently, the Court finds 

further that no information linking Richard Nelson to 

the murder of Jacqueline Roberson was provided by 

Karen Clark to Detective LaFoille in the Fall of 1991 

or at any time pertinent to the Defendant’s claim. . . 

. [T]he Court finds that the statement of Pamela Sue 

Fike, although arguably favorable, was not provided to 

the defense. As to its materiality, however, it is 

non-existent and the Court so finds. 

State v. McLeod, No. CT92-0611X, slip op. at 25 (Md. Cir. Ct. 

Prince George’s County June 11, 2004). 

In the second § 2254 petition heard by the district court, 

McLeod contends that the circuit court unreasonably concluded 

that the State did not withhold exculpatory information in the 

form of Clark’s statements to Detective LaFoille and erred as a 

matter of law in finding Fike’s statement to be immaterial. On 

March 30, 2007, following a non-evidentiary hearing, the 

district court dismissed McLeod’s petition by memorandum 

opinion. McLeod, 482 F. Supp. 2d 658. 

III. 

 We review the district court’s dismissal of McLeod’s 

petition for a writ of habeas corpus de novo. See McNeil v. 

Polk, 476 F.3d 206, 210 (4th Cir. 2007); Buckner v. Polk, 453 

16 
F.3d 195, 198 (4th Cir. 2006); see also LeFevers v. Gibson, 238 

F.3d 1263, 1266 (10th Cir. 2001). 

A. 

 A successive habeas corpus petition such as McLeod’s cannot 

be filed without first obtaining pre-filing authorization 

(“PFA”) from the court of appeals. See 28 U.S.C. § 

2244(b)(3)(A); In re Williams, 330 F.3d 277, 279 (4th Cir. 

2003). In granting McLeod’s PFA motion, this court determined 

that McLeod made a “prima facie showing” that the claims in his 

petition satisfied the requirements of § 2244(b)(2)(B). See § 

2244(b)(3)(C). In pertinent part, § 2244(b) provides, 

(2) A claim presented in a second or successive habeas 

corpus application under section 2254 that was not 

presented in a prior application shall be dismissed 

unless-- 

. . . . 

(B)(i) the factual predicate for the claim 

could not have been discovered previously 

through the exercise of due diligence; and 

(ii) the facts underlying the claim, if 

proven and viewed in light of the evidence 

as a whole, would be sufficient to establish 

by clear and convincing evidence that, but 

for constitutional error, no reasonable 

factfinder would have found the applicant 

guilty of the underlying offense. 

§ 2244(b)(2). In this circuit as in others, “prima facie 

showing” is understood to mean, “a sufficient showing of 

possible merit to warrant a fuller exploration by the district 

17 
court. . . . If in light of the documents submitted with the 

[PFA motion] it appears reasonably likely that the [motion] 

satisfies the stringent requirements for the filing of a second 

or successive petition, we shall grant the [motion].” Williams, 

330 F.3d at 281 (quoting Bennett v. United States, 119 F.3d 468, 

469-70 (7th Cir. 1997)). The grant of a PFA motion, however, is 

“tentative in the following sense: the district court must 

dismiss the motion that we have allowed the applicant to file, 

without reaching the merits of the motion, if the court finds 

that the movant has not satisfied the requirements for the 

filing of such a motion.” Bennett, 119 F.3d at 470 (citing § 

2244(b)(4)). 

 Enacted as part of the Antiterrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”), which “greatly restricts the 

power of federal courts to award relief to state prisoners who 

file second or successive habeas corpus applications,” § 

2244(b)(2)(B) is “one of two narrow exceptions” to the rule that 

a claim not presented in an earlier § 2254 petition must be 

dismissed.2 Tyler v. Cain, 533 U.S. 656, 661 (2001). The 

district court held, and the parties do not dispute, that McLeod 

could not have discovered Clark’s alleged communication with 

 2

 The other narrow exception, found in § 2244(b)(2)(A) for 

certain claims based on new rules of constitutional law, does 

not apply here. 

18 
Detective LaFoille prior to August of 2002. Similarly, McLeod 

had no means of discovering the existence of Fike’s written 

statement prior to January of 2004 when it was produced by the 

State. The district court, therefore, correctly found that “the 

factual predicate for the claim could not have been discovered 

previously through the exercise of due diligence.” § 

2244(b)(2)(B)(i). 

 In order to “squeeze through the narrow gateway” created by 

§ 2244(b)(2)(B), Felder v. McVicar, 113 F.3d 696, 698 (7th Cir. 

1997), McLeod was also required to prove to the district court 

that “the facts underlying the claim, if proven and viewed in 

light of the evidence as a whole, would be sufficient to 

establish by clear and convincing evidence that, but for 

constitutional error, no reasonable factfinder would have found 

the applicant guilty of the underlying offense.” § 

2244(b)(2)(B)(ii). If McLeod failed to make such a showing, the 

district court was obliged to dismiss the petition without 

reaching the merits. Section 2244(b)(4) directs that “[a] 

district court shall dismiss any claim presented in a second or 

successive application that the court of appeals has authorized 

to be filed unless the applicant shows that the claim satisfies 

the requirements of this section.” See United States v. 

Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (“When the 

application is thereafter submitted to the district court, that 

19 
court must examine each claim and dismiss those that are barred 

under § 2244(b) . . . .”). Respect for the finality of criminal 

judgments provides the impetus for the heavy burden placed on 

successive § 2254 petitioners by § 2244(b)(2)(b)(ii). See

Calderon v. Thompson, 523 U.S. 538, 558 (1998) (“Section 2244(b)

. . . is grounded in respect for the finality of criminal 

judgments.”). While noting this requirement, the district court 

proceeded to the merits of McLeod’s petition without applying § 

2244(b)(2)(B)(ii) to the underlying facts. 

Under § 2244(b)(2)(B)(ii), a petitioner must not only show 

that reasonable doubt exists in light of the new evidence, but 

that no reasonable juror would have found him guilty beyond a 

reasonable doubt. Thus, the question initially to be resolved 

is, assuming the information allegedly disclosed by Clark to 

LaFoille had been turned over to the defense, and Fike’s 

statement was also disclosed, whether this new evidence, viewed 

in conjunction with all the evidence, clearly and convincingly 

establishes that no reasonable fact finder would have found 

McLeod guilty. 

 In an attempt to shoulder his heavy burden and satisfy § 

2244(b)(2)(B)(ii), McLeod characterizes the State’s case at 

trial as extremely weak and entirely circumstantial. He first 

points to the fact that the initial charges against him were 

nolle prossed, and contends that the evidence that was deemed 

20 
insufficient when the initial charges were dropped in February 

of 1988, was the same evidence relied upon when he was indicted 

in April of 1992. McLeod also argues that the primary evidence 

relied upon by the State to tie him to Roberson’s murder was the 

red bandana with cat hair on it, and the knife. According to 

McLeod, the defense, through Clark, would have established the 

following, taken verbatim from McLeod’s brief: 

• During the summer 1987, Nelson possessed two red 

WMZQ bandanas, one that he wore and one that he gave 

to his and Clark's minor son. 

• During the summer 1987, Nelson demanded that Clark 

take the WMZQ red bandana from her son and return it 

to Nelson, and that Clark complied. 

• Nelson possessed and wore on his belt a wood-handled 

knife with brass fittings on each end, matching 

exactly the description of the knife found at or near 

the crime scene. 

• During the summer 1987, Clark noticed that Nelson 

had a new knife and when she inquired what happened to 

old knife, he told her that he had “lost it.” 

• During the summer 1987, Nelson lived with a woman 

named Virginia Acree, who has confirmed that she lived 

with Nelson and that she owned a cat having the same

color fur as the cat hairs found on the red WMZQ 

bandana. Acree also confirms that Nelson regularly 

wore red bandanas. 

• Nelson had a long history of violence, particularly 

toward women, and during the summer 1987 was heavily 

using drugs. 

• Nelson took Clark to a wooded area in Bowie, 

Maryland, which Nelson call his “shrine,” and asked 

her to lie on the ground naked while he masturbated. 

This sexual practice is consistent with the crime 

scene evidence presented by the State, namely that 

Roberson disrobed before being stabbed, that her 

21 
clothes were found folded underneath her body, and 

that there was no evidence of physical rape trauma or 

the presence of seminal fluid on or in the victim. 

• The wooded area Nelson referred to as his “shrine” 

is within three miles of where Roberson was murdered 

and is the very location where Dustin's nude and 

beaten body was found in 1973. Nelson admitted to 

Clark to having “wailed on” Dustin with a knife and 

accurately described injuries to Dustin that were 

never released to the public. 

• Nelson frequented a restaurant in Bowie, Maryland 

known as Rips and was known to spend a considerable 

amount of time there. Roberson, a school teacher, 

worked at Rips during the summer months as a waitress, 

thus providing a possible social nexus that never 

existed between the victim and any putative suspect, 

including McLeod. 

• Nelson was a friend to Neil Vaughn, who acknowledged 

to police that he was in Izaac Walton Park on the day 

that Roberson was murdered. 

• Nelson possessed a business card on which he wrote

the name of the park where Roberson was last seen 

waxing her car. 

(McLeod’s Opening Br. at 29-30) (emphasis in original). McLeod 

contends that had he been advised of the statements Clark says 

she made to LaFoille, the defense would have been able to “train 

the beacon directed at McLeod upon Nelson” who McLeod claims is 

the more likely perpetrator of Roberson’s murder. (McLeod’s 

Reply Br. at 9). 

 The State argues that even assuming McLeod’s factual 

allegations are true, they do not satisfy § 2244(b)(2)(B)(ii). 

While admitting that a red bandana with cat hair, and a knife, 

were part of the State’s case at trial, the State argues that 

22 
other evidence clearly implicated McLeod in Roberson’s murder. 

That evidence being: when asked by his family the reason for his 

arrest following the Webb rape, McLeod replied that it was 

either rape or murder; Roberson was 28 years old when she was 

murdered, Webb was 15 at the time of her rape, and when informed 

of Webb’s age following his arrest for her rape, McLeod 

responded by saying he thought she was older; when asked by his 

family to describe his victim’s clothing, McLeod’s description 

matched Roberson’s blue clothing, not Webb’s purple and white 

clothing; McLeod was placed in the vicinity of the murder the 

day it was committed by the pair of shorts smudged with the same 

brand of wax Roberson used to wax her car; and McLeod gave 

conflicting alibis to his step-father. (State’s Resp. Br. at 

22-24). In reply, McLeod notes that he waxed his step-father’s 

race car frequently, and that none of the fingerprints on 

Roberson’s car were his. He points out that the allegedly 

conflicting alibis were regarding his whereabouts the evening of 

August 10, 1987, while Roberson was murdered in the afternoon. 

McLeod characterizes his statement that he thought his victim 

was older as unremarkable and defensive. 

 With respect to his victim’s clothing, McLeod contends that 

the record does not support the inference the State sought to 

draw at trial. Yet, the evidence was as follows. The day of 

her rape, Webb was wearing a purple shirt and white shorts with 

23 
thin red stripes. An evidence technician testified that at the 

time of her murder, Roberson was wearing a navy-blue t-shirt 

with the sleeves cut off, a white strapped t-shirt and a “pair 

of light blue jeans.” (J.A. at 190-91). McLeod’s mother 

testified that McLeod indicated his victim was wearing “a 

pullover and navy blue shorts.” (J.A. at 119). McLeod’s stepfather testified that McLeod “mentioned blue. A blue outfit,” 

and upon further questioning stated a “blue pullover and blue 

shorts.” (J.A. at 98-99). While not an exact description of 

Roberson’s clothing, McLeod’s response is more likely a 

description of Roberson’s predominantly blue outfit as opposed 

to Webb’s outfit of purple and white. 

 McLeod attempts to diminish the incriminating force of his 

uncertainty regarding whether he had been arrested for rape or 

murder by noting that his mother testified he appeared 

disoriented at the Detention Center. Having been asked whether 

she visited McLeod at the Detention Center following his August 

13, 1987 arrest, Mrs. Bricker testified: “We did. And there was 

a lot of confusion during that time.” (J.A. at 117). She also 

testified that when McLeod was asked what he had been arrested 

for, McLeod “asked was it murder, was it rape or what? He 

seemed very confused.” (J.A. at 118). McLeod, though, was not 

a suspect in the Roberson murder until August 15, 1987, when his 

mother provided Detective Edgar with his wax smudged shorts. 

24 
McLeod’s being “confused” does not explain away the 

incriminating fact that he included murder, along with rape, as 

a possible reason for what was his rape arrest. 

 The only mention of the effect of Fike’s statement on the § 

2244(b)(2)(B)(ii) inquiry is the State’s contention that its 

limited evidentiary value is self-evident. Fike’s statement 

regarding what her brother told her, which was what someone else 

told him –- namely, that the Saunders were at Governor’s Bridge 

Road on the date that Roberson was murdered -- is the epitome of 

inadmissible hearsay. See Md. R. Evid. 5-802. McLeod has 

offered no evidence that “the Saunders” were involved in the 

Roberson murder, and the mere speculation of Fike’s brother that 

the Saunders “are the type that may do something like that” is 

sheer conjecture. The circuit court’s conclusion that the 

materiality of Fike’s statement is “non-existent” is supported 

by the fanciful nature of the statement. McLeod, No. CT92-

0611X, slip op. at 25. 

 Undoubtedly, accepting Clark’s assertions regarding what 

she told Detective LaFoille in the fall of 1991 as true, and 

assuming that the information had been turned over to the 

defense, McLeod could have attempted to show that Nelson 

murdered Roberson. That a jury would have been convinced that 

Nelson was the perpetrator, and McLeod was not involved, is far 

from a foregone conclusion. Even assuming Clark’s testimony was 

25 
believed, it would not negate the several incriminating 

statements made by McLeod at the Detention Center. Still, a 

reasonable juror may well have found that the evidence regarding 

Nelson created enough doubt as to McLeod’s guilt to acquit him. 

This, however, does not satisfy § 2244(b)(2)(B)(ii). McLeod’s 

burden was to show, by clear and convincing evidence, that no 

reasonable juror would have found him guilty; not merely that it 

is conceivable that he could have been acquitted. The evidence 

that would have been received at trial as a result of the 

information Clark claims to have conveyed to LaFoille does 

present an alternative theory of Roberson’s murder. Yet, as the 

state has pointed out, it would not have rebutted or called into 

question much of the State’s case against McLeod. 

Even accepting as proven fact the evidence allegedly 

provided by Clark, and that to which it leads, such evidence 

would be insufficient, when viewed in light of the evidence as a 

whole, to establish by clear and convincing evidence that no 

reasonable juror would have found the defendant guilty. McLeod 

thus failed to satisfy § 2244(b)(2)(B)(ii) and dismissal of his 

petition was appropriate. 

26 
IV. 

 Had McLeod’s petition satisfied § 2244(b)(2)(B)(ii), 

dismissal was nevertheless appropriate on the merits. Under the 

AEDPA, 

(d) An application for a writ of habeas corpus on 

behalf of a person in custody pursuant to the judgment 

of a State court shall not be granted with respect to 

any claim that was adjudicated on the merits in State 

court proceedings unless the adjudication of the 

claim— 

(1) resulted in a decision that was contrary 

to, or involved an unreasonable application 

of, clearly established Federal law, as 

determined by the Supreme Court of the 

United States; or 

(2) resulted in a decision that was based on 

an unreasonable determination of the facts 

in light of the evidence presented in the 

State court proceeding. 

28 U.S.C. § 2254(d). 

A. 

Turning first to § 2254(d)(2), McLeod contends that the 

conclusion of the Circuit Court for Prince George’s County that 

the State did not withhold evidence favorable to him, consisting 

of Karen Clark’s alleged statements to Detective LaFoille, was 

an objectively unreasonable determination of the facts. In 

reaching its conclusion, the circuit court was presented with a 

pure question of fact that centered primarily on whether Clark 

or LaFoille was the more credible witness. If, consistent with 

27 
her testimony, Clark conveyed the information regarding Nelson 

to LaFoille, the State likely violated McLeod’s due process 

rights under Brady; if not, no Brady violation occurred. But 

the question presented for review is a narrow one. It is 

whether, applying the § 2254 framework, it was objectively 

unreasonable for the circuit court to conclude that Clark did 

not convey the information regarding Nelson to LaFoille in the 

fall of 1991 and, as a consequence, to disregard Clark’s version 

of events. 

In the context of federal habeas challenges to state court 

judgments, “a determination of a factual issue made by a State 

court shall be presumed to be correct. The applicant shall have 

the burden of rebutting the presumption of correctness by clear 

and convincing evidence.” § 2254(e)(1). See Cagle v. Branker, 

520 F.3d 320, 323 (4th Cir. 2008). Discussing federal court 

collateral review of state court factual determinations under § 

2254(d)(2), and noting federalism’s call for deference, the 

Supreme Court in Miller-El v. Cockrell stated, 

[f]actual determinations by state courts are presumed 

correct absent clear and convincing evidence to the 

contrary, § 2254(e)(1), and a decision adjudicated on 

the merits in a state court and based on a factual 

determination will not be overturned on factual 

grounds unless objectively unreasonable in light of 

the evidence presented in the state-court proceeding, 

§ 2254(d)(2). 

28 
537 U.S. 322, 340 (2003). Deference, however, does not imply 

abandonment or abdication of judicial review and does not by 

definition preclude relief. Id. (“A federal court can disagree 

with a state court's credibility determination and, when guided 

by AEDPA, conclude the decision was unreasonable or that the 

factual premise was incorrect by clear and convincing 

evidence.”). 

 At the circuit court’s hearing on McLeod’s motion to reopen the post-conviction proceedings, LaFoille testified that 

“everything and anything” was done to locate Nelson in the fall 

of 1991. (J.A. at 1041). LaFoille also testified that he did 

not recall meeting Clark. Clark, however, saved two message 

slips, dated October 14th and 22nd of 1991, both evidencing 

LaFoille’s attempts to contact Clark. One of the message slips 

contains LaFoille’s contact information, which he testified was 

both accurate and in his handwriting. It is undisputed, 

therefore, that some interaction between Clark and LaFoille 

occurred. McLeod argues that the circuit court’s conclusion was 

unreasonable because there was no conflict between Clark’s 

testimony that she provided LaFoille with the information 

regarding Nelson, and LaFoille’s testimony that he did not 

recall meeting Clark. But simply because Clark claims to have 

told LaFoille certain information, which he does not recall 

receiving, does not mean that Clark in fact conveyed the 

29 
information. It is just as likely, as the circuit court found, 

that LaFoille does not remember receiving the information 

because Clark never conveyed it to him. Indeed, if Clark did 

not in the fall of 1991 inform LaFoille of the bandanas and 

knives that she connects in a variety of ways to Nelson, it 

makes sense that Detective LaFoille would not, twelve years 

later, recall meeting her. 

 In late 1998 or early 1999, after seeing a reference to 

Investigator Cordle’s investigation into the death of Donna 

Dustin on the Bowie High School website, Clark called Cordle to 

discuss the deaths of Dustin, and another murder victim, Jeany 

Kline. During the call, Clark asked Cordle to describe the 

cause of Kline’s death. Cordle, however, was not familiar with 

the details of the Kline murder which had occurred outside his 

jurisdiction. While nothing came of this initial call by Clark, 

Cordle testified that Clark was interested in locating her exhusband, Nelson. 

Clark contacted Cordle again on December 6, 2000. 

According to Cordle’s testimony, during a December 7, 2000 

meeting, Clark was once again interested in locating Nelson 

because Clark believed Nelson had been involved in Dustin’s 

murder and because “she wanted some resolution of what may have 

happened to him.” (J.A. at 905). Following this December 7th 

meeting, Cordle and Clark were in contact hundreds of times. 

30 
Throughout the course of their communications, Clark conveyed a 

great deal of information pertaining to her belief that Nelson 

was involved in a number of murders.3 Some of the information 

provided by Clark to Cordle implicated Nelson in certain murders 

in the Bowie, Maryland area, particularly Dustin’s. Regarding 

Nelson’s involvement in the Roberson murder, Cordle testified, 

“I don’t recall her saying that he admitted to being involved.” 

(J.A. at 910). 

 At some point between December of 2000 and February of 2001 

Clark told Cordle that in October of 1991 LaFoille attempted to 

contact her seeking to locate Nelson. However, despite Cordle’s 

testimony that Clark was very open and detail oriented in 

discussing her attempts to locate Nelson and determine his 

involvement in the various murders, Cordle never testified that 

Clark told him that she provided LaFoille any information 

regarding Nelson’s involvement in the Roberson murder. 

 At Clark’s behest, Cordle called LaFoille at his home in 

Michigan on February 9, 2001. According to Cordle, during their 

 3

 In addition to her effort to link Nelson to the Roberson 

murder, Clark attempted to link him to the murders of Dustin, 

Kline, and Tom King, a man who in Clark’s words was “an 

associate of Rick’s [Nelson] that went missing.” (J.A. at 961). 

Clark also contacted the police in an attempt to establish 

Nelson’s role in the death of several people she claims Nelson 

mentioned were buried on a farm in Mitchville, Maryland. The 

farm was searched, but no bodies were discovered. 

31 
conversation, LaFoille “stated that when he retired he may have 

taken a couple of boxes [of notes] and some personal records 

with him when he moved out to the Midwest.” (J.A. at 879). 

During cross-examination, LaFoille testified that he made no 

such assertion and that his reference to files during the 

conversation was to files in Maryland. Cordle’s notes of the 

February 9th conversation read, “JW [Jimmy Weidemeyer] was very

tight with Nelson.” (J.A. at 1299).4 LaFoille denied making 

such a statement. There were other contacts, or attempted 

contacts, between Cordle and LaFoille, but their extent and 

existence are disputed. Cordle testified that LaFoille did not 

return two of his phone calls, made in March and April of 2001, 

and further that he spoke with LaFoille at some point between 

February and April of 2001, but made no record of the 

conversation because LaFoille informed him that he was too busy 

to search for records regarding Nelson. LaFoille, however, 

testified that he returned all of Cordle’s phone calls. 

Ultimately, the circuit court conceded that it was “perplexed by 

the discrepancies between the testimony of Detective LaFoille 

and that of Investigator Cordle.” McLeod, No. CT92-0611X, slip 

op. at 24. 

 4

 Jimmy Weidemeyer was a suspect in the Dustin murder. 

32 
 McLeod maintains that the inconsistencies between 

LaFoille’s testimony and that of Cordle, and other witnesses, 

rendered all of LaFoille’s testimony unreliable. While there 

were discrepancies between the testimony of LaFoille and Cordle, 

these discrepancies do not render unreliable that which LaFoille 

said. Even if LaFoille told Cordle that he “may” have documents 

pertaining to the Roberson case, this does not mean that he did 

have them. Indeed, Cordle’s notes of the February 9, 2001 

conversation, upon which McLeod relies in arguing that Cordle, 

not LaFoille, accurately testified to the content of that 

conversation, make no reference to LaFoille’s possession of 

notes or files. Further, as found by the circuit court, 

LaFoille’s testimony was bolstered by the testimony of Detective 

Edgar and Gwinn: 

 Detective Robert Edgar, to whom Detective 

LaFoille reported, testified that he never heard of 

Karen Clark before the matter herein was filed. As the 

lead investigator, he was also actively involved in 

the search for Richard Nelson, and in the course of 

his interviews with Mr. Nelson's acquaintances and 

family members, no one directed him to, or even 

mentioned, Karen Clark. Similarly, Assistant State's 

Attorney Laura Gwinn had not heard of Karen Clark 

prior to the filing of this Motion. 

McLeod, No. CT92-0611X, slip op. at 20-21 (internal citation 

omitted). Finally, while any discrepancies between the 

testimony of Cordle and LaFoille may bear on LaFoille’s 

credibility, his credibility alone is not dispositive of whether 

33 
Clark, in fact, conveyed the information regarding Nelson to him 

in the fall of 1991. 

 After hearing Clark’s testimony, in its statement of 

reasons, the circuit court found that, 

From her testimony, it is clear to this Court 

that Ms. Clark is fixated on her former husband, his 

whereabouts, and his actions over approximately the 

past twenty-five years. Ms. Clark’s continued focus 

on Mr. Nelson, whom she has admittedly not seen since 

1989, seems to have emerged with single-minded 

determination in 1998 when she initially contacted 

Investigator Cordle, some seven years after her 

alleged conversations with Detective LaFoille. 

McLeod, No. CT92-0611X, slip op. at 18. One need only look to 

Clark’s testimony to see the reasonableness of the circuit 

court’s finding. Clark’s description of Nelson’s courtship of 

her is of interest. She testified that prior to their marriage, 

though the two never dated, Nelson stalked and beat her. 

According to Clark, the reason she married and subsequently had 

a child with Nelson was because “[h]e threatened to murder my 

family if I didn’t.” (J.A. at 959). Yet, despite this 

brutality, Clark repeatedly testified to her desire to locate 

Nelson. 

 Clark testified that after LaFoille contacted her in the 

fall of 1991, she met with him on three occasions and spoke with 

him on the telephone several times. According to Clark, the 

first face-to-face meeting occurred when LaFoille came to 

Clark’s place of work, the McEldon Library at the University of 

34 
Maryland, and the two spoke for two hours. It is during this 

time that Clark claims to have informed LaFoille of much of the 

evidence McLeod contends implicates Nelson in the Roberson 

murder. Clark submitted an affidavit stating, and she testified 

that, in October of 1991 she accompanied LaFoille to the police 

station to look at photographs. During the third alleged 

meeting, Clark claims to have provided LaFoille with Nelson’s 

address book, which she obtained in 1987. According to Clark, 

the address book was never returned. 

 Despite Clark’s testimony that she met with LaFoille on 

three occasions, once for two hours, she could not recall his 

height. (J.A. at 947). In a February 2001 email to LaFoille, 

Clark wrote, 

I don’t know if you remember me, but you came to see 

me in College Park to ask some questions about my exhusband . . . which were somehow related to a case you 

were investigating about a woman that was murdered at 

Allen’s Pond. I don’t remember what year that was, 

but Rick has been missing since Sept. 1989. I was 

wondering if you ever managed to locate Rick, etc. I 

also remember discussing with you his relationship to 

some older members of the Pagan Motorcycle gang in 

Bowie as well as some other issues. 

(J.A. at 1129). McLeod argued to the circuit court that 

LaFoille’s response to the email, “I remember a lot of what you 

are talking about,” (id.), proves he remembered speaking with 

Clark. As noted by the circuit court, however, LaFoille’s 

response does not necessarily show he remembered meeting Clark. 

35 
In any event, acknowledging that Clark and LaFoille spoke to 

each other at some point does not compel the conclusion that 

Clark disclosed the information regarding Nelson as she now 

claims. 

 Of all of Clark’s assertions, perhaps the most notable is 

her belated description of Nelson’s behavior at what he referred 

to as “the shrine.” While the shrine was purportedly in 

relation to the murder of Dustin, not Roberson, Clark’s story is 

consistent with the lack of semen in or on Roberson’s person, 

and the fact she was not vaginally or anally penetrated. Yet, 

despite her claim that she divulged a mass of information 

regarding Nelson in the fall of 1991, Clark, by her own 

admission, inexplicably neglected to inform LaFoille of what 

occurred when she and Nelson visited the shrine in the fall of 

1980. (J.A. at 938-39, 958). Clark’s first mention of the 

shrine was to Cordle at some point after she contacted him a 

second time on December 6, 2000. While Nelson’s alleged 

behavior at the shrine is consistent with Roberson’s injuries, 

Clark could have fabricated the story after learning the details 

of Roberson’s murder through the media or other sources. It is 

also possible that Nelson was somehow involved in the Roberson 

murder. But inculpation of Nelson does not necessarily 

exculpate McLeod. At trial the State argued that McLeod may not 

have acted alone in murdering Roberson, and evidence of Nelson’s 

36 
involvement in the murder does not negate the other evidence 

incriminating McLeod. Finally, on cross examination in 2004, 

Clark suddenly recalled that, 

[s]hortly before he [Nelson] went missing, my last 

phone call with him was basically that he had 

information about this [the Roberson] case. Although, 

nothing specifically, he didn’t say the name. 

Although he said a woman murdered in Bowie up by 

Allen’s Pond and that people were going to try and 

kill him because of what he knew. 

(J.A. at 955). Yet, this critical, and damning, piece of 

information was omitted from Clark’s affidavit, which was 

executed over a year earlier on August 23, 2002, describing the 

information she possessed implicating Nelson in the murders of 

Dustin, Kline and Roberson. 

 Based on its conclusion that LaFoille, not Clark, was the 

more credible witness, the circuit court found that McLeod 

failed to demonstrate that the State withheld evidence favorable 

to him in violation of Brady. Rejecting McLeod’s contention 

that the circuit court’s finding was objectively unreasonable 

under § 2254(d)(2) and (e)(1), the district court stated that, 

this court is not persuaded that the state court's 

findings, and in particular its determinations of 

credibility of the witnesses, can be called 

"unreasonable" by a "clear and convincing" standard in 

light of the entirety of the evidence presented in 

the state court proceedings. . . . As the fact finder, 

the state court weighed the credibility of the 

witnesses, and undertook to resolve the many conflicts 

in the evidence. After considering all the testimonial 

and documentary evidence presented, the state court 

concluded that LaFoille's testimony, as supported by 

37 
that of his supervisor Edgar, was more credible than, 

and should be weighed more significantly than, that of 

Clark. 

McLeod, 482 F. Supp. 2d at 666. 

 Like the instant appeal, Cagle v. Branker involved review 

of a district court’s dismissal of appellant’s § 2254 petition 

challenging the credibility determination of a state court. 

Affirming, this court stated, 

for a federal habeas court to overturn a state court's 

credibility judgments, the state court's error must be 

stark and clear. Indeed, "federal habeas courts 

[have] no license to redetermine credibility of 

witnesses whose demeanor has been observed by the 

state trial court, but not by them." Marshall v. 

Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 

L.Ed.2d 646 (1983). 

Cagle, 520 F.3d at 324 (internal citation omitted). While the 

evidence does not compel the credibility determination reached 

by the state court, it certainly provides a sufficient basis for 

purposes of section 2254(d)(2) to support such a determination. 

See Wilson v. Ozmint, 352 F.3d 847, 860 (4th Cir. 2003). The 

circuit court witnessed first hand the testimony of Clark, 

LaFoille, Cordle and the other witnesses and the circuit court’s 

statement of reasons provides a thorough review of that 

testimony. In deeming LaFoille the more credible witness, the 

circuit court did not act unreasonably, let alone commit “stark 

and clear error.” This being the case, the presumption of 

correctness mandated by § 2254(e)(1) stands unrebutted. McLeod 

38 
has failed to show that the circuit court’s factual finding 

resulted in a decision based on an unreasonable determination of 

the facts in light of the evidence as required by § 2254(d)(2). 

B. 

 With respect to § 2254(d)(1), McLeod argues that the 

circuit court erred as a matter of law in finding Fike’s written 

statement to be immaterial under Brady. See supra p. 25. As 

this court has noted, § 2254(d)(1) “is quite deferential.” 

Mosley v. Branker, 550 F.3d 312, 319 (4th Cir. 2008). To be 

entitled to relief, a petitioner must show that “the state court 

decision was either contrary to, or an unreasonable application 

of, clearly established federal law as determined by the Supreme 

Court.” Robinson v. Polk, 438 F.3d 350, 354-55 (4th Cir. 2006) 

(citing § 2254(d)(1)). A decision is contrary to clearly 

established federal law “if the state court arrives at a 

conclusion opposite to that reached by th[e] [Supreme] Court on 

a question of law or if the state court decides a case 

differently than th[e] [Supreme] Court has on a set of 

materially indistinguishable facts.” Williams v. Taylor, 529 

U.S. 362, 413 (2000). A state court unreasonably applies 

clearly established federal law if it “identifies the correct 

governing legal principle from th[e] [Supreme] Court's decisions 

but unreasonably applies that principle to the facts of the 

39 
prisoner's case.” Id. The circuit court committed no such 

error here. 

 For purposes of Brady, evidence withheld by the state is 

material “if there is a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the 

proceeding would have been different.” United States v. Bagley, 

473 U.S. 667, 682 (1985). While finding the statement “at least 

arguably favorable to the defense,” the circuit court determined 

that “the justification for Ms. Fike’s brother’s suspicion, 

that being ‘they are the type that may do something like that,’ 

strains the Court’s ability to conclude that such information 

could reasonably be taken to put the whole case in a different 

light as to undermine confidence in the verdict, and the Court 

declines to do so.” McLeod, No. CT92-0611X, slip op. at 11-12. 

Thus, after identifying the appropriate legal standard, the 

circuit court concluded that Fike’s statement was not material. 

The district court correctly found this conclusion not to be an 

unreasonable application of federal law as determined by the 

Supreme Court, and rightly left the decision of the circuit 

court undisturbed. 

40 
41 

V. 

 McLeod’s second § 2254 petition was appropriately dismissed 

because it failed to satiate the demanding threshold requirement 

of § 2244(b)(2)(B)(ii). Even had § 2244(b)(2)(B)(ii) been met, 

McLeod failed to show that the circuit court made an 

unreasonable factual determination under § 2254(d)(2), or 

unreasonably applied federal law under § 2254(d)(1). 

Accordingly, the judgment below is 

AFFIRMED.