PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JIMMIE WAYNE LAWRENCE, 

Petitioner-Appellee,

v.  No. 07-2 GERALD J. BRANKER, Warden,

Central Prison, Raleigh, North

Carolina,

Respondent-Appellant. 

JIMMIE WAYNE LAWRENCE, 

Petitioner-Appellant,

v.  No. 07-4 GERALD J. BRANKER, Warden,

Central Prison, Raleigh, North

Carolina,

Respondent-Appellee. 

Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(5:03-hc-00327-BO)

Argued: December 7, 2007

Decided: February 22, 2008

Before WILLIAMS, Chief Judge, and MOTZ and

KING, Circuit Judges.
Affirmed in part; reversed in part by published opinion. Chief Judge

Williams wrote the opinion, in which Judge Motz and Judge King

joined. 

COUNSEL

ARGUED: Sandra Wallace-Smith, Assistant Attorney General,

NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North

Carolina, for Appellant/Cross-Appellee. Bruce Tracy Cunningham,

Jr., Southern Pines, North Carolina, for Appellee/Cross-Appellant.

ON BRIEF: Roy Cooper, Attorney General of North Carolina,

Raleigh, North Carolina, for Appellant/Cross-Appellee. Amanda S.

Zimmer, LAW OFFICE OF BRUCE T. CUNNINGHAM, JR., Southern Pines, North Carolina, for Appellee/Cross-Appellant.

OPINION

WILLIAMS, Chief Judge: 

A North Carolina jury convicted Petitioner Jimmie Wayne Lawrence of first-degree murder, burglary, kidnapping, conspiracy to

commit kidnapping, and conspiracy to commit murder. The jury sentenced Lawrence to death for the first-degree murder conviction.

Thereafter, Lawrence unsuccessfully worked his way through the

direct appeal and post-conviction review process in North Carolina.

He then filed a petition under 28 U.S.C.A. § 2254 (West 2006) seeking habeas relief in federal court. The district court granted the petition in part, issued Lawrence a writ of habeas corpus, and vacated his

death sentence, holding that the state post-conviction court unreasonably applied the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), in denying Lawrence post-conviction relief.

The district court granted Lawrence habeas relief because it concluded that Lawrence’s appellate counsel was ineffective for failing

to appeal the submission of Lawrence’s burglary conviction as an

aggravating factor supporting a death sentence. 

The State appeals the district court’s issuance of the writ to Lawrence, and, for the reasons set forth below, we reverse. We conclude

2 LAWRENCE v. BRANKER
that the state court reasonably applied Strickland in rejecting Lawrence’s claim that his counsel was ineffective for not appealing the

use of his burglary conviction as an aggravator. We also reject Lawrence’s cross-appeal of the district court’s partial denial of his habeas

petition, concluding that another of his ineffective-assistance claims

is procedurally defaulted and that his due-process claims relating to

the adjudication of his state post-conviction motion are not cognizable

on federal habeas review. 

I.

A.

The facts, as recounted by the Supreme Court of North Carolina in

its opinion in Lawrence’s direct appeal, are as follows: 

The State’s evidence tended to show that [Lawrence] and

Gwen Morrison dated for almost two years and that their

relationship ended in early December 1996. Morrison began

living with Dale McLean in late December 1996. On 18 January 1997, Morrison and McLean were at home with

McLean’s two children, ten-year-old Chastity McLean and

five-year-old Dale "Junior" McLean, when someone

knocked on the back door. McLean looked out the window

and said, "It’s Jimmie." Morrison opened the door and stood

on the top step in her nightgown and slippers. 

[Lawrence] was standing on the ground in front of the

mobile home; and a man that Morrison had never seen

before, William Rashad Lucas, was standing behind [Lawrence] holding a sawed-off shotgun. [Lawrence] asked Morrison to leave with him. When Morrison refused,

[Lawrence] pulled a nine millimeter handgun from the front

of his pants. Morrison then told [Lawrence] that she did not

want any trouble and that she would leave with him, but that

she needed to get her shoes and coat first. Morrison turned

toward the door and [Lawrence] ran up the steps, pushing

Morrison through the door into the mobile home. As [Lawrence] and Morrison came through the door, Chastity and

Junior were sitting in the living room and McLean was

LAWRENCE v. BRANKER 3
walking empty-handed down the hallway toward the door.

[Lawrence] pushed Morrison away and shot McLean, who

grabbed his head and fell to the floor. [Lawrence] stood over

McLean and fired several more rounds. [Lawrence] then

grabbed Morrison by the arm and said that he would also

kill her if she did not leave with him. [Lawrence] led Morrison outside and put her into the backseat of his vehicle. 

Lucas drove to [Lawrence]’s house. Lucas told [Lawrence]

that he should have shot Morrison, too, because she "was

going to tell everything." Morrison, [Lawrence], and Lucas

then got into Lucas’ car; and Lucas drove to the Comfort

Inn in Sanford, North Carolina, where Lucas stayed in the

car with Morrison while [Lawrence] rented a room. Once

inside the room, Lucas put his shotgun on a bed and left; he

returned thirty minutes later with a pair of jeans that

belonged to his girlfriend. Lucas left again, and [Lawrence]

took a shower after telling Morrison that he would kill her

if she tried to leave. 

Morrison sat on the bed while [Lawrence] showered. When

[Lawrence] came out of the bathroom, he lay on the bed

next to Morrison and fell asleep with his arm or leg over her

body so that she could not leave the room. [Lawrence]

awoke later and asked Morrison to have sex with him. Morrison agreed out of fear that [Lawrence] would kill her if she

refused him. 

Sometime thereafter, [Lawrence] returned a call to his

mother and told her to have his father pick him up. He then

told Morrison to put on the jeans that Lucas had brought

earlier. Someone arrived at the Comfort Inn driving [Lawrence]’s vehicle; [Lawrence] put the shotgun under the mattress and left. Morrison then called her cousin to come get

her. 

Meanwhile, after [Lawrence] and Lucas had driven away

with Morrison, Chastity called her grandmother, who

instructed Chastity to call the police. Shortly thereafter,

members of the Harnett County Sheriff’s Department

4 LAWRENCE v. BRANKER
arrived. The officers found no signs of life in McLean. A

detective carried the children away from the crime scene,

and Chastity calmed down enough to give a statement that

[Lawrence] had shot her father. The Lee County Sheriff’s

Department subsequently took [Lawrence] into custody; and

with [his] consent, several agents from the State Bureau of

Investigation ("SBI") searched [Lawrence]’s room at the

Comfort Inn. The agents found the shotgun in the hotel

room, and Lucas’ girlfriend later turned over the ninemillimeter handgun to the Harnett County Sheriff’s Department. 

The pathologist who performed the autopsy on McLean

found a total of nine gunshot wounds on McLean’s body, all

fired at a close range of no more than three feet. The gunshot wounds on McLean’s right arm, nose, and forehead

were not the fatal injuries. The cause of death was any one

of the four bullets that entered McLean’s brain through the

right side of his skull. A forensic firearms examiner from

the SBI determined that the shell casings collected at the

scene from around McLean’s body had been fired from

[Lawrence]’s nine-millimeter pistol. 

State v. Lawrence, 530 S.E.2d 807, 812-13 (N.C. 2000). 

B.

On February 10, 1997, a state grand jury in Harnett County, North

Carolina, indicted Lawrence, charging him with the first-degree murder of Dale McLean. Later, the grand jury added charges of firstdegree burglary, first-degree kidnapping, conspiracy to commit kidnapping, and conspiracy to commit murder. 

On December 1, 1997, Lawrence proceeded to trial in Harnett

County Superior Court. After a week-long trial, a jury convicted him

on all counts. The jury convicted Lawrence of first-degree murder

under alternate theories of premeditation and deliberation and felony

murder, relying on Lawrence’s convictions for burglary and kidnapLAWRENCE v. BRANKER 5
ping for the felony-murder theory. The predicate felony underlying

Lawrence’s burglary conviction was the murder itself.1

Pursuant to North Carolina law, a capital sentencing hearing was

held. Two statutory aggravating factors were submitted to the jury,

which found both to exist: (1) that "[t]he capital felony was committed while the defendant was engaged . . . in the commission of . . .

burglary," N.C. Gen. Stat. § 15A-2000(e)(5) (2007), and (2) that

"[t]he murder for which the defendant stands convicted was part of

a course of conduct in which the defendant engaged and which

included the commission by the defendant of other crimes of violence

against another person or persons," id. § 15A-2000(e)(11).2 On

December 11, 1997, the jury sentenced Lawrence to death for the

first-degree murder conviction. 

After Lawrence’s death sentence was imposed, the court appointed

Lawrence new counsel to represent him on direct appeal, and Lawrence appealed his convictions and death sentence. On June 16, 2000,

the Supreme Court of North Carolina affirmed Lawrence’s convictions and capital sentence, Lawrence, 530 S.E.2d at 807, and on January 8, 2001, the U.S. Supreme Court denied him a writ of certiorari,

Lawrence v. North Carolina, 531 U.S. 1083 (2001). 

Once Lawrence had exhausted his direct appeals, he was again

appointed new counsel to represent him in state post-conviction proceedings. On August 1, 2001, Lawrence began his state postconviction appeals, which in North Carolina are brought via a Motion

for Appropriate Relief ("MAR") in the Superior Court ("MAR

1North Carolina’s definition of first-degree burglary tracks the

common-law understanding of the crime: it requires the breaking and

entering at night of an occupied dwelling house or sleeping apartment of

another with the intent to commit a felony therein. N.C. Gen. Stat. § 14-

51 (2007). It is undisputed that the felony underlying Lawrence’s burglary conviction is his murder of Dale McLean; the trial court instructed

the jury that Lawrence would be guilty of burglary only if he broke into

and entered the home with the intent to commit murder. 

2The "(e)(11)" aggravating circumstance was based on Lawrence’s

kidnapping of Morrison, which he accomplished by brandishing a handgun and demanding that she leave with him. 

6 LAWRENCE v. BRANKER
court"). N.C. Gen. Stat. § 15A-1411 (2007). The MAR court denied

Lawrence relief on all his claims, finding that many of Lawrence’s

claims were procedurally defaulted and, alternatively, that all of his

claims failed on the merits. Lawrence appealed the MAR court’s ruling, and the Supreme Court of North Carolina denied discretionary

review of the MAR court’s judgment on November 21, 2002, State

v. Lawrence, 573 S.E.2d 159 (2002), as did the U.S. Supreme Court,

Lawrence v. North Carolina, 538 U.S. 987 (2003). 

Lawrence then turned to the federal courts for habeas relief. On

May 2, 2003, Lawrence timely filed a § 2254 petition in the Eastern

District of North Carolina alleging, inter alia, (1) that the MAR court

violated his due-process rights by permitting the judge who presided

over his trial to also adjudicate his MAR; (2) that the MAR court violated his due-process rights by instructing counsel for the State to

"draft [an] order summarily denying all of Lawrence’s claims," (J.A.

at 645), without specifying any grounds for denial; (3) that Lawrence’s trial counsel was ineffective for conceding his guilt to rape

and kidnapping without his consent; and (4) that both Lawrence’s trial

and appellate counsel were ineffective because they failed to argue

that submission of Lawrence’s burglary conviction as an aggravating

circumstance supporting a death sentence violated the Due Process,

Double Jeopardy, and Cruel and Unusual Punishment Clauses of the

U.S. Constitution. Through this last claim, Lawrence contended that

his burglary conviction could not be used as an aggravating circumstance because "the underlying felony to the burglary was the murder

itself." (J.A. at 462.) 

The State moved for summary judgment, and the district court held

a hearing on the State’s motion on August 30, 2006. On March 19,

2007, the district court granted summary judgment in favor of the

State on all of Lawrence’s claims except one: his claim that his counsel was ineffective for failing to challenge on appeal the submission

of his burglary conviction as an aggravating circumstance supporting

a death sentence. With respect to this claim, the district court issued

Lawrence a writ of habeas corpus and vacated his death sentence,

concluding that, under Strickland, Lawrence’s appellate counsel was

ineffective for failing to argue on direct appeal that the burglary

aggravator was constitutionally defective. The district court reasoned

that Lawrence’s burglary conviction "failed to perform its constituLAWRENCE v. BRANKER 7
tionally required function of narrowing the class of death-eligible

defendants," (J.A. at 833), because the predicate felony underlying the

burglary was the murder itself. In the district court’s view, "use of the

burglary aggravator was tantamount to aggravating the murder based

upon Lawrence’s intent to commit the murder." (J.A. at 832.) Thus,

the court concluded that Lawrence’s appellate counsel was ineffective

for failing to raise the issue on appeal.

On April 9, 2007, the State appealed the district court’s issuance

of the habeas writ to Lawrence and vacatur of his death sentence. On

April 23, 2007, Lawrence filed a cross-motion for appeal and

requested a certificate of appealability pursuant to 28 U.S.C.A.

§ 2253(c)(1) (West 2006), which the district court granted on the following issues: (1) whether the MAR court unreasonably applied

Strickland in rejecting Lawrence’s claim that his trial counsel was

ineffective for conceding his guilt to kidnapping and rape without his

consent, and (2) whether Lawrence’s due-process claims relating to

the adjudication of his MAR in state court are cognizable on federal

habeas review. 

II.

A.

We review de novo the district court’s decision on Lawrence’s

§ 2254 petition based on the record before the MAR court, applying

the same standards as did the district court. Robinson v. Polk, 438

F.3d 350, 354 (4th Cir. 2006). Pursuant to the Anti-Terrorism and

Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-

132, 110 Stat. 1214 (1996), the scope of federal review is highly constrained. We may grant a petition with respect to any claim adjudicated on the merits in state court only if the state-court decision was

either contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. 28 U.S.C.A.

§ 2254(d)(1). 

A decision of a state court is contrary to clearly established federal

law "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

8 LAWRENCE v. BRANKER
materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362,

413 (2000). A state-court adjudication is an unreasonable application

of federal law when the state court "correctly identifies the governing

legal rule [from the Supreme Court’s cases] but applies it unreasonably to the facts of a particular . . . case," id. at 407-08, or "applies

a precedent in a context different from the one in which the precedent

was decided and one to which extension of the legal principle of the

precedent is not reasonable [or] fails to apply the principle of a precedent in a context where such failure is unreasonable," Robinson, 438

F.3d at 355 (internal quotation marks omitted). The state court’s

application of clearly established federal law must be "objectively

unreasonable," for a "federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law

erroneously or incorrectly." Williams v. Taylor, 529 U.S. at 409, 411.

The phrase "clearly established federal law" refers "to the holdings,

as opposed to the dicta, of [the Supreme] Court’s decisions as of the

time of the relevant state-court decision." Id. at 412. 

In deciding whether a petitioner has demonstrated the deficiency of

the state-court adjudication under § 2254(d), we must presume state

court findings of fact to be correct unless the petitioner rebuts that

presumption by clear and convincing evidence. 28 U.S.C.A.

§ 2254(e)(1).

B.

The State appeals the district court’s issuance of a habeas writ to

Lawrence and vacatur of his death sentence. The district court issued

the writ based on its conclusion that, under Strickland, Lawrence’s

appellate counsel was ineffective for failing to argue on direct appeal

that submission of Lawrence’s burglary conviction as an aggravating

circumstance violated the U.S. Constitution. Specifically, the district

court reasoned that, because the predicate felony underlying the burglary conviction was the first-degree murder, submission of the burglary conviction as an aggravating circumstance amounted to

aggravation of the first-degree murder based on the murder itself. For

this reason, the district court concluded that the burglary aggravator

did not sufficiently narrow the class of death-eligible defendants,

which is required under the Supreme Court’s decision in Lowenfield

LAWRENCE v. BRANKER 9
v. Phelps, 484 U.S. 231 (1988), for a death sentence to pass muster

under the Eighth and Fourteenth Amendments. The court concluded

that Lawrence’s appellate counsel was ineffective for failing to raise

the issue on direct appeal. 

The State argues that the district court erred in issuing the habeas

writ to Lawrence because the MAR court’s denial of Lawrence’s

claim was not an objectively unreasonable application of Strickland.

1.

The law pertaining to claims of ineffective assistance of counsel is

well-established. To show that counsel rendered ineffective assistance, a defendant must satisfy the two-pronged standard set forth in

Strickland. First, the defendant must show that his counsel’s performance "fell below an objective standard of reasonableness" in light

of the prevailing professional norms. Strickland, 466 U.S. at 688. Second, the defendant must show that "there is a reasonable probability

that but for counsel’s unprofessional errors, the result of the proceeding would have been different." Id. at 694. 

Keenly aware of the difficulties inherent in evaluating counsel’s

performance, the Supreme Court has admonished that courts "must

indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance." Id. at 689; see also

id. (directing that "[j]udicial scrutiny of counsel’s performance must

be highly deferential"). Given this strong presumption of reasonable

performance, it is no wonder that we have stated that the showing

required under Strickland’s first prong is a "difficult" one to make.

James v. Harrison, 389 F.3d 450, 457 (4th Cir. 2004). Moreover,

even if a petitioner is able to show that his counsel’s performance fell

below an objectively reasonable standard, he has won only half the

battle, for he must also show that, absent his counsel’s errors, the outcome of the proceeding would have been different. Id.

Effective assistance of appellate counsel does not require the presentation of all issues on appeal that may have merit, Bell v. Jarvis,

236 F.3d 149, 164 (4th Cir. 2000) (en banc), and we "must accord [ ]

counsel the presumption that he decided which issues were most

likely to afford relief on appeal," id. (internal quotation marks omit10 LAWRENCE v. BRANKER
ted). "Generally, only when ignored issues are clearly stronger than

those presented, will the presumption of effective assistance of counsel be overcome." Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986),

cited with approval in Smith v. Robbins, 528 U.S. 259, 288 (2000).

Thus, under Strickland, Lawrence’s appellate counsel was only

ineffective if his failure to challenge the submission of the burglary

conviction as an aggravating circumstance fell below an objective

standard of reasonableness and, but for that failure, Lawrence would

have prevailed in his appeal. 

2.

To pass constitutional muster under the Eighth and Fourteenth

Amendments, "a capital sentencing scheme must ‘genuinely narrow

the class of persons eligible for the death penalty and must reasonably

justify the imposition of a more severe sentence on the defendant

compared to others found guilty of murder.’" Lowenfield, 484 U.S. at

244 (quoting Zant v. Stephens, 462 U.S. 862, 877 (1983)). Narrowing

of the class of death-eligible persons may happen at either the guilt

phase of the trial or the sentencing phase: Either a state may "itself

narrow the definition of capital offenses" and permit the jury to make

the death-eligibility determination at the guilt phase, or "the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty

phase." Lowenfield, 484 U.S. at 246; see also Tuilaepa v. California,

512 U.S. 967, 972 (1994) ("[A]ggravating circumstance[s] may be

contained in the definition of the crime or in a separate sentencing

factor (or in both)."). If the constitutional narrowing function is performed at the guilt phase, "[t]he fact that the sentencing jury is also

required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process." Id.

North Carolina criminalizes six grades of homicide: first- and

second-degree murder, voluntary and involuntary manslaughter, and

felony and misdemeanor death-by-vehicle. N.C. Gen. Stat. §§ 14-17,

14-18, 20-141.4 (2007). First-degree murder is separated into five distinct classes: (1) murder perpetrated by means of a nuclear, biological,

or chemical weapon of mass destruction; (2) murder perpetrated by

means of poison, lying in wait, imprisonment, starving, or torture; (3)

LAWRENCE v. BRANKER 11
murder perpetrated by any other kind of willful, deliberate, and premeditated killing; (4) murder committed in the perpetration or

attempted perpetration of certain enumerated felonies (felonymurder); and (5) murder committed in the perpetration or attempted

perpetration of any other felony committed or attempted with the use

of a deadly weapon. Id. § 14-17. North Carolina has made all forms

of first-degree murder death-eligible. Id.

Pursuant to N.C. Gen. Stat. § 15A-2000, once a defendant is

adjudged guilty of first-degree murder, a separate sentencing proceeding is held to determine whether the defendant should be sentenced

to death or life imprisonment. N.C. Gen. Stat. § 15A-2000. After

hearing the evidence, the arguments of counsel, and the instructions

of the court, the jury determines if an aggravating circumstance or circumstances supporting a death sentence exist. Id. § 15A-2000(b)(1).

At least one aggravating circumstance must be found before the jury

may impose the death penalty. Id. § 15A-2000(c)(1). The jury then

determines whether any mitigating circumstances exist. Id. § 15A2000(b)(2). Once the jury determines the existence of any mitigating

circumstances, it then weighs the aggravating circumstances against

the mitigating circumstances. Id. § 15A-2000(c)(3). Based on this

consideration, the jury recommends that the defendant either be sentenced to death or life imprisonment. Id. § 15A-2000(b)(3). The jury’s

sentencing verdict must be unanimous for either recommendation. Id.

The jury found Lawrence guilty of first-degree murder under alternate theories of premeditation and deliberation and felony-murder and

recommended a death sentence based on its finding of both statutory

aggravating circumstances submitted to it: (1) that the first-degree

murder was committed while Lawrence was engaged in the commission of a burglary, id. § 15A-2000(e)(5), and (2) that the murder for

which Lawrence was convicted was part of a course of conduct in

which Lawrence engaged and which included his commission of

other crimes of violence against another person or persons, id. § 15A2000(e)(11). As noted above, the predicate felony underlying Lawrence’s burglary conviction was his murder of Dale McClean. 

The district court granted Lawrence habeas relief on the ground

that his appellate counsel was ineffective for failing to argue on direct

appeal that submission of Lawrence’s burglary conviction as an

12 LAWRENCE v. BRANKER
aggravating circumstance was constitutionally infirm because it did

not perform the narrowing function required under Lowenfield. In the

district court’s view, because "intent to commit murder was an essential element of the burglary offense," "the burglary aggravator failed

to provide a meaningful basis for distinguishing the murder from

those where death is not appropriate." (J.A. at 833.) Turning to Strickland, the court concluded that Lawrence’s appellate counsel’s failure

to raise the issue on direct appeal "fell below an objective standard

of reasonableness," (J.A. at 833), and that "there exists more than a

reasonable probability that Lawrence would have prevailed on

appeal" had appellate counsel raised the claim, (J.A. at 835.) 

Of course, the ultimate question that we must answer in this appeal

— the same question the district court faced below — is whether the

MAR court’s denial of Lawrence’s claim on the merits was an unreasonable application of, or contrary to, Strickland. In its order issuing

the writ, the district court never mentioned the MAR court’s decision,

moving directly from a finding of ineffective assistance to issuance

of the writ. We need not dwell on this procedural peculiarity, however, for we conclude that the MAR court’s denial of Lawrence’s

claim on the merits was not unreasonable or contrary to Strickland.

3.

The district court concluded that Lawrence’s appellate counsel was

ineffective because "the problem with the burglary aggravator was

apparent from the record." (J.A. at 834.) In our view, however, the

"problem" with the burglary aggravator is far from "apparent," and

may be nonexistent.

As an initial matter, we note that Lawrence concedes, and the district court acknowledged, that generally a burglary conviction can be

submitted as an aggravating circumstance in North Carolina without

violating the U.S. Constitution. Indeed, as the parties note in their

briefs, numerous death sentences have been handed down in North

Carolina based on the jury’s finding that the murder occurred during

the commission of a burglary. See, e.g., State v. Gibbs, 436 S.E.2d

321, 354 (N.C. 1993). Instead, the district court granted Lawrence

habeas relief based on its conclusion that Lawrence’s particular burLAWRENCE v. BRANKER 13
glary conviction was constitutionally unsuitable as an aggravating circumstance. 

We are not as convinced as the district court that submission of the

burglary aggravator was error. North Carolina defines first-degree

burglary to require the breaking and entering at night of an occupied

dwelling house or sleeping apartment of another with the intent to

commit a felony therein. N.C. Gen. Stat. § 14-51. The defendant’s

intent to commit a felony must exist at the time of entry, but the

defendant need not commit the felony once inside for criminal liability to lie. Once the defendant breaks into and enters a house with the

requisite intent to commit a felony in the house, the burglary is complete. State v. Chandler, 467 S.E.2d 636, 641 (N.C. 1996). 

In concluding that the burglary aggravator served no narrowing

function at the sentencing phase of Lawrence’s trial, the district court

focused exclusively on the "intent to commit a felony therein" component of the crime of burglary, reasoning that, because the felony

underlying the burglary conviction was the murder itself, aggravation

of the murder based on the burglary was "tantamount to aggravating

the murder based upon Lawrence’s intent to commit the murder."

(J.A. at 832.) But burglary requires more than just the intent to commit a felony in a house; it also requires a breaking and entering of the

house. Whatever the felony that underlies a burglary conviction in

North Carolina, it is always true that the convicted burglar broke into

and entered a house. It is therefore at least arguable that submission

of a burglary conviction as an aggravating circumstance, irrespective

of the felony underlying the burglary conviction, "genuinely narrow[s] the class of persons eligible for the death penalty," Lowenfield,

484 U.S. at 244 (internal quotation marks omitted), because it differentiates the murderer who breaks into and enters a house to kill someone from the murderer on the street. In any event, there is nothing in

Lowenfield that clearly instructs that this distinction between burglarmurderers and on-the-street murderers is not enough to constitutionally narrow the class of defendants eligible for the death penalty, irrespective of the felony underlying the burglary. However one dissects

the definition of burglary, burglar-murderers are a subclass of all murderers. See Tuilaepa, 512 U.S. at 972 (stating that an aggravating circumstance must not be unconstitutionally vague and must "not apply

14 LAWRENCE v. BRANKER
to every defendant convicted of a murder," but must instead apply

"only to a subclass of defendants convicted of murder"). 

We also find the district court’s reliance on the Supreme Court of

North Carolina’s decision in State v. Cherry, 257 S.E.2d 551 (N.C.

1979), to be misplaced. In Cherry, the court held that in cases where

the defendant is convicted only of felony-murder, the felony supporting the felony-murder conviction cannot be submitted as an aggravating circumstance to the capital sentencing jury. Id. at 568. Lawrence,

however, was convicted of both felony-murder and premeditated

murder, and the Cherry court stressed that "[n]othing we have said

herein should be construed to foreclose consideration of the aggravating circumstances found in . . . 15A-2000(e)(5) when a murder

occurred during the commission of one of the enumerated felonies but

where the defendant was convicted of first degree murder on the

basis of his premeditation and deliberation." Id. (emphasis added).

Thus, Cherry actually undermines Lawrence’s ineffective-assistance

claim. 

Indeed, since Cherry was decided, the Supreme Court of North

Carolina has consistently held that when a defendant’s first-degree

murder conviction was based both on the felony-murder rule and premeditation and deliberation, submission of the underlying felony as

an aggravating circumstance is not prohibited. See, e.g., State v. Conaway, 453 S.E.2d 824, 852 (N.C. 1995) ("State v. Cherry prohibits the

submission of the underlying felony as an aggravating circumstance

only when a defendant is convicted solely of felony murder.") More

to the point, the court has, on at least one occasion, refused to find

any state or federal constitutional errors (of the Lowenfield type or

otherwise) in the submission of a burglary conviction as an aggravating circumstance when the felony underlying the burglary conviction

was the murder itself. See State v. Gay, 434 S.E.2d 840, 851, 855-56

(N.C. 1993) (finding no error in the submission of burglary aggravator when felony underlying the burglary conviction was murder itself).3

3Lawrence notes that, under North Carolina law, "[e]vidence necessary

to prove an element of the offense shall not be used to prove any factor

in aggravation." N.C. Gen. Stat. § 15A-1340.16(d) (2007). Our inquiry,

however, is limited to determining whether the state-court decision was

either contrary to, or an unreasonable application of, clearly established

federal law as determined by the Supreme Court. 28 U.S.C.A.

§ 2254(d)(1) (West 2006). 

LAWRENCE v. BRANKER 15
Taken together, Lowenfield and Gay would have led a reasonable

appellate attorney in North Carolina to believe that Lawrence’s

ineffective-assistance claim bore little — perhaps no — chance of

success on appeal. The district court acknowledged that Lawrence’s

appellate counsel "submitted a well written brief addressing twentyfour . . . issues." (J.A. at 834.) This well-written brief did not raise the

ineffective-assistance claim Lawrence now presses on collateral

review, but, again, a reasonable attorney would likely have thought

that the claim had little chance of success. And even if there was

some error in the submission of the burglary aggravator at the sentencing phase of Lawrence’s trial, it was not an obvious error (at least

it is not obvious to us), and we do not think that Lawrence’s counsel

performed deficiently in failing to appeal this hypothetical error. We

thus conclude that, under Strickland, Lawrence’s appellate counsel

was not ineffective for failing to raise the burglary-aggravator issue

on appeal. 

4.

We are persuaded that Lawrence’s appellate counsel rendered him

effective assistance, but even if we indulge the contrary thought, we

nevertheless are convinced that the MAR court’s denial of Lawrence’s Strickland claim on the merits was neither unreasonable nor

contrary to established federal law. The MAR court rejected Lawrence’s claim at Strickland’s first prong, concluding that "submission

of the underlying felony of burglary as an aggravating circumstance

was proper" and that "[a]ppellate counsel cannot be ineffective for

failing to assign error to an issue that is without merit." (J.A. at 708.)

In light of our discussion above, the district court’s conclusion that

submission of the burglary aggravator was clearly unconstitutional is

incorrect. Indeed, it is not clear to us that any constitutional error

occurred in the submission of the burglary aggravator, much less an

error so glaring as to warrant relief under Strickland. At the time the

MAR court denied Lawrence’s claim, the U.S. Supreme Court’s decision in Lowenfield and the Supreme Court of North Carolina’s decision in Gay strongly suggested, if not confirmed, that Lawrence’s

ineffective-assistance claim would have failed if raised on appeal.

Given the tremendous leeway afforded to appellate counsel by Strickland and to the MAR court by § 2254(d), we cannot conclude that the

16 LAWRENCE v. BRANKER
MAR court’s application of Strickland was objectively unreasonable

or contrary to clearly established federal law. Lawrence’s ineffectiveassistance claim is simply not of the stock that underlies successful

Strickland challenges in the AEDPA context. 

Accordingly, we reverse the district court’s grant of a writ of

habeas corpus to Lawrence on his ineffective-assistance claim. 

III.

Having concluded that the district court erred in issuing Lawrence

a habeas writ on his claim of ineffective assistance of appellate counsel, we turn to Lawrence’s cross-appeal. In his cross-appeal, Lawrence claims (1) that his trial counsel was ineffective for conceding

his guilt to kidnapping and rape without his consent, and (2) that his

due-process rights were violated by the MAR court in denying his

motion for post-conviction relief. We address each argument in turn.

A.

Lawrence first contends that, under Strickland, his trial counsel

was ineffective for conceding his guilt to kidnapping and rape without

his consent. By conceding guilt for these offenses, Lawrence contends, his trial counsel effectively admitted to the factual elements of

felony murder, as well as to the factual elements underlying both

aggravating circumstances found by the jury to support his death sentence. 

Prior to closing arguments at the guilt phase of Lawrence’s trial,

Lawrence’s counsel informed the trial court that Lawrence had signed

a document authorizing them to pursue diminished capacity and voluntary intoxication defenses with respect to all of the crimes charged

in the indictment. (J.A. at 10-11, 19-20.) Specifically, the authorization stated that counsel would contest Lawrence’s ability to form the

specific intent necessary to commit "capital murder, conspiracy to

commit murder, kidnapping, conspiracy to kidnap, burglary and

rape." (J.A. at 10-11.) Upon being made aware of the authorization,

the trial judge questioned Lawrence and his counsel to ensure that

Lawrence understood exactly what he was consenting to in the authoLAWRENCE v. BRANKER 17
rization. Lawrence informed the trial court that he had authorized his

counsel to pursue the diminished capacity and voluntary intoxication

defenses and to admit that he was "guilty of some things." (J.A. at

20.) Based on this authorization, Lawrence’s counsel argued to the

jury that it could convict him of second-degree murder, which, under

North Carolina law, is a general intent crime, N.C. Gen. Stat. § 14-17,

but argued that Lawrence could not be convicted for any other crimes

charged in the indictment — including first-degree murder — because

he lacked the requisite specific intent to commit the crimes due to his

voluntary intoxication. Lawrence’s counsel offered expert testimony

purporting to show that he was intoxicated at the time he broke and

entered McLean’s trailer and killed him and that his intoxication prevented him from forming the specific intent to commit the charged

crimes. The trial court instructed the jury that voluntary intoxication

was a defense to all of the crimes charged in the indictment if it found

that Lawrence’s intoxication prevented him from forming the requisite specific intent.4

 (J.A. at 42-60.) The jury rejected Lawrence’s

defense and convicted him on all counts. 

The MAR court held that Lawrence’s ineffective-assistance claim

was procedurally defaulted under North Carolina law and, alternatively, that the claim lacked merit. Although the district court held

that Lawrence’s claim was not procedurally defaulted, it nevertheless

denied the claim on the merits. We are satisfied that Lawrence’s ineffective assistance claim was procedurally defaulted, but even if we

proceed to the merits, we agree with the MAR court and the district

court that Lawrence’s ineffective assistance claim is meritless. 

1.

"Federal habeas review of a state prisoner’s claims that are procedurally defaulted under independent and adequate state procedural

rules is barred unless the prisoner can show cause for the default and

demonstrate actual prejudice as a result of the alleged violation of

4

In North Carolina, for a defendant to be entitled to an instruction on

voluntary intoxication, there must be evidence "that defendant’s intoxication rendered him utterly incapable of forming a deliberate and premeditated intent to kill." State v. Mash, 372 S.E.2d 532, 537 (N.C. 1988)

(internal quotation marks omitted). 

18 LAWRENCE v. BRANKER
federal law, or prove that failure to consider the claims will result in

a fundamental miscarriage of justice."5 McCarver v. Lee, 221 F.3d

583, 588 (4th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722,

750 (1991)). A state rule is adequate if it is "firmly established,"

James v. Kentucky, 466 U.S. 341, 348 (1984), and regularly and consistently applied by the state court, Johnson v. Mississippi, 486 U.S.

578, 587 (1988). 

In dismissing Lawrence’s motion, the MAR court rejected his

ineffective-assistance claim as procedurally defaulted under N.C.

Gen. Stat. § 15A-1419(a)(3) (2007). Section 15A-1419(a)(3) provides

for denial of appropriate relief when "[u]pon a previous appeal the

defendant was in a position to adequately raise the ground or issue

underlying the present motion but did not do so." We have consistently held that § 15A-1419(a)(3) is an independent and adequate state

ground for purposes of procedural default. McCarver, 221 F.3d at

589; Williams v. French, 146 F.3d 203, 209 (4th Cir. 1998) ("The

state procedural rule applied in this case, North Carolina General Statutes § 15A-1419(a)(3), is an independent and adequate state

ground."). Although the Supreme Court of North Carolina has stated

that allegations of ineffective assistance of counsel like Lawrence’s

are generally properly raised on collateral review, State v. Fair, 557

S.E.2d 500, 524 (N.C. 2001), North Carolina courts have held that

ineffective assistance claims that are not brought on direct review can

be procedurally defaulted under § 15A-1419(a)(3). Indeed, in both

McCarver and Williams v. French, we concluded that petitioners’

ineffective assistance claims were procedurally defaulted under

§ 15A-1419(a)(3). McCarver, 221 F.3d at 589; Williams v. French,

146 F.3d at 218. 

Section 15A-1419(a)(3), however, "is not a general rule that any

[ineffective assistance] claim not brought on direct appeal is forfeited

on state collateral review. Instead, the rule requires North Carolina

courts to determine whether the particular claim at issue could have

been brought on direct review." Fair, 557 S.E.2d at 525 (quoting

5Lawrence does not argue that failure to consider his claim will result

in a fundamental miscarriage of justice, and, in any event, we do not

find, based on the record before us, that there would be a fundamental

miscarriage of justice were we to refuse to consider his claim. 

LAWRENCE v. BRANKER 19
McCarver, 221 F.3d at 589). In this vein, the Supreme Court of North

Carolina has held that ineffective assistance claims brought on collateral review are procedurally defaulted under § 15A-1419(a)(3) when

the "cold record" reveals that no further investigation would have

been required to raise the claim on direct review. Fair, 557 S.E.2d at

524. 

Lawrence bases his ineffective-assistance claim in part on the

Supreme Court of North Carolina’s decision in State v. Harbison, 337

S.E.2d 504 (N.C. 1985). In Harbison, the Court held that a defendant

receives ineffective assistance per se when trial counsel concedes

guilt to the offense or to a lesser offense without the defendant’s consent. Id. at 507. North Carolina courts have decided Harbison claims

of ineffective assistance on direct review. See, e.g., State v. Thompson, 604 S.E.2d 850, 876-80 (N.C. 2004) (denying defendant’s Harbison claim on direct review). 

Despite Lawrence’s arguments to the contrary, we conclude, based

on the "cold record," that Lawrence was in a position to bring his

ineffective-assistance claim on direct appeal. The trial record contains

Lawrence’s signed authorization of defense theory; the colloquy

between the trial court and Lawrence regarding the authorization; his

counsel’s statements regarding the authorization; and his trial counsel’s arguments to the jury. No further investigation would have been

required for Lawrence to have raised his ineffective-assistance claim

on direct review, for everything he needed to bring the claim was contained in the trial record. We thus agree with the MAR court that

Lawrence’s ineffective-assistance claim is procedurally barred under

N.C. Gen. Stat. § 15A-1419(a)(3), and we conclude that Lawrence

has demonstrated neither cause to excuse his procedural default nor

prejudice resulting from the default. 

2.

Although we conclude that Lawrence’s ineffective-assistance claim

is procedurally defaulted, we nevertheless consider the merits of his

claim. The MAR court concluded that, in addition to being procedurally defaulted, Lawrence’s claim was without merit. The district court

agreed with the MAR court that Lawrence’s claim lacked merit. We

agree with both. 

20 LAWRENCE v. BRANKER
Under Strickland, Lawrence must demonstrate that his trial counsel’s performance not only fell below an objective standard of reasonableness, Strickland, 466 U.S. at 687-88, but also that he was actually

prejudiced by that ineffectiveness, id. at 693-94. A showing of ineffective assistance under Strickland is hard enough (see our discussion

above), but we also must conclude that the MAR court’s denial of

Lawrence’s claim on the merits was contrary to, or an unreasonable

application of, Strickland for habeas relief to be proper. 28 U.S.C.A.

§ 2254(d)(1). 

As recounted above, prior to closing arguments, Lawrence authorized his counsel to pursue diminished capacity and voluntary intoxication defenses for all of the crimes charged in the indictment. Based

on this authorization, Lawrence’s trial counsel conceded his guilt for

second-degree murder, but denied his guilt for first-degree murder,

burglary, kidnapping, conspiracy to commit kidnapping, and conspiracy to commit murder on the bases of his voluntary intoxication. 

The MAR court concluded that, under Strickland, Lawrence

received effective assistance of counsel because he "knowingly and

understandingly authorized trial counsel to concede commission of

the acts underlying all of the charged offenses in order to deny specific intent and raise the defenses of diminished capacity and voluntary intoxication." (J.A. at 693.) The MAR court also stated that, even

assuming that Lawrence’s trial counsel made some errors, there was

"no reasonable probability that, but for the error or errors, there would

have been a different result in the proceedings." (J.A. at 713.) 

The trial record reveals that Lawrence knew that his counsel would

be admitting his guilt to "some things," and that the trial court in fact

instructed the jury on voluntary intoxication for each of the charged

offenses. Lawrence acknowledges that his counsel had to concede that

he committed the acts underlying the charged crimes in order to raise

the diminished capacity and voluntary intoxication defenses. Taking

these facts into consideration, what is left of Lawrence’s argument is

his disagreement with the results of his trial, but effective trial counsel

cannot always produce a victory for the defendant. "[I]f counsel’s

strategy, given the evidence bearing on the defendant’s guilt, satisfies

the Strickland standard, that is the end of the matter; no tenable claim

of ineffective assistance would remain." Florida v. Nixon, 543 U.S.

LAWRENCE v. BRANKER 21
175, 192 (2004). Lawrence was fully apprised of his trial counsel’s

defense strategy before closing arguments, and he consented to the

plan of attack. He cannot now claim error in the very strategy that he

authorized, particularly given that his counsel’s pursuit of a voluntary

intoxication defense fit the circumstances of the case. 

In sum, Lawrence has come forth with no evidence to rebut the

MAR court’s factual findings, which are binding on us, see 28

U.S.C.A. § 2254(e)(1), and he does not argue that the MAR court’s

denial of his ineffective claim was an unreasonable application of, or

contrary to, Strickland. Indeed, the MAR court did not apply Strickland incorrectly, let alone unreasonably. Accordingly, under the

AEDPA, we must affirm the district court’s denial of a habeas writ

to Lawrence on this ineffective-assistance claim. 

B.

Finally, Lawrence cross-appeals the district court’s grant of summary judgment to the State on his due-process claims arising from the

MAR court’s adjudication of his post-conviction motion. Lawrence

alleges two errors in the MAR court proceedings. First, he contends

that the MAR court violated his due-process rights by permitting the

same judge that presided over his trial to rule on his MAR. Lawrence

claims that this arrangement deprived him of an unbiased review of

his MAR. Second, Lawrence contends that the MAR court violated

his due-process rights when it instructed counsel for the State to "draft

[an] order summarily denying all of [Lawrence’s] claims," (J.A. at

645), without specifying the grounds for denial. 

We agree with the district court that Lawrence’s due-process

claims are not cognizable on federal habeas review. Pursuant to

§ 2254, a petitioner may obtain relief from a state court judgment

"only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.A. § 2254(a).

A state prisoner has no federal constitutional right to post-conviction

proceedings in state court. Lackawanna County Dist. Att’y v. Coss,

532 U.S. 394, 402 (2001) (noting that "each State has created mechanisms for both direct appeal and state postconviction review, even

though there is no constitutional mandate that they do so" (internal

citations omitted)); Pennsylvania v. Finley, 481 U.S. 551, 557 (1987).

22 LAWRENCE v. BRANKER
Thus, even where there is some error in state post-conviction proceedings, a petitioner is not entitled to federal habeas relief because the

assignment of error relating to those post-conviction proceedings represents an attack on a proceeding collateral to detention and not to the

detention itself. Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir.

1988) ("[C]laims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief."); see

also Bell-Bey v. Roper, 499 F.3d 752, 756 (8th Cir. 2007) ("Because

the Constitution does not guarantee the existence of state postconviction proceedings, an infirmity in a state post-conviction proceeding does not raise a constitutional issue cognizable in a federal

habeas application." (internal citations, quotation marks, and alteration omitted); United States v. Dago, 441 F.3d 1238, 1248 (10th Cir.

2006) ("[D]ue process challenges to post-conviction procedures fail

to state constitutional claims cognizable in a federal habeas proceeding."). Accordingly, because Lawrence’s due-process claims relate

only to the MAR court’s adjudication of his state post-conviction

motion, we are without power to consider them. We therefore affirm

the district court’s denial of a habeas writ to Lawrence on his dueprocess claims relating to the MAR court proceedings. 

IV.

For the reasons stated in Part II of the opinion, we reverse the district court’s order issuing a writ of habeas corpus to Lawrence and

vacating his death sentence. For the reasons stated in Part III of the

opinion, we reject Lawrence’s cross-appeal and affirm the district

court’s denial of his claims. 

AFFIRMED IN PART;

REVERSED IN PART

LAWRENCE v. BRANKER 23