PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN HARDY ROSE, 

Petitioner-Appellant,

v.  No. 00-12

R. C. LEE, Warden, Central Prison,

Raleigh, North Carolina,

Respondent-Appellee. 

JOHN HARDY ROSE, 

Petitioner-Appellee,

v.  No. 00-11

R. C. LEE, Warden, Central Prison,

Raleigh, North Carolina,

Respondent-Appellant. 

Appeals from the United States District Court

for the Western District of North Carolina, at Asheville.

Richard L. Voorhees, District Judge.

(CA-00-20-1-V)

Argued: April 5, 2001

Decided: May 24, 2001

Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Judge

Williams wrote the opinion, in which Judge Michael and Judge Traxler joined. 
COUNSEL

ARGUED: Michael L. Minsker, HIGGINS MINSKER, P.L.L.C.,

Charlotte, North Carolina, for Appellant. Valerie Blanche Spalding,

Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON

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

CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. 

OPINION

WILLIAMS, Circuit Judge: 

A North Carolina jury convicted John Hardy Rose of capital murder for the murder of Patricia Stewart. Following a capital sentencing

proceeding, the jury recommended, and the trial court imposed, a sentence of death. After exhausting all available state remedies, Rose

petitioned the United States District Court for the Western District of

North Carolina for a writ of habeas corpus. See 28 U.S.C.A. § 2254

(West Supp. 2000). The district court ordered that the writ be granted

on the ground that the State habeas court applied the wrong legal standard to Rose’s ineffective assistance of counsel claim. The remaining

allegations in Rose’s habeas petition were dismissed. 

Rose seeks a certificate of appealability granting permission to

appeal the portion of the district court’s order denying Rose’s habeas

relief. The State cross-appeals the portion of the district court’s judgment in which the district court granted the writ and remanded to the

State habeas court for its application of the proper legal standard to

Rose’s ineffective assistance of counsel claim.1 For the reasons that

follow, we reverse the portion of the district court’s judgment granting the writ, affirm the district court’s entry of summary judgment in

favor of the State as to Rose’s claims, and decline to grant Rose a certificate of appealability. 

1No certificate of appealability is necessary with respect to the portion

of the district court’s judgment from which the State appeals. Fed. R.

App. P. 22(b)(3). 

2 ROSE v. LEE
I.

A.

After receiving a report that Patricia Stewart was missing and finding small drops of blood in and around her apartment, the Graham

County, North Carolina, police department conducted several interviews with Rose, who lived with his sister and her boyfriend in the

apartment above Stewart.2 On January 13, 1991, State Bureau of

Investigation (SBI) Agent Mark Nelson performed a consent search

of a blue Pontiac owned by Rose and a yellow Ford owned by his sister. In the two cars, investigators found a pair of numchucks, a tire

tool, jumper cables, a black sleeveless jacket, and a thermos, all of

which tested positive for blood. The thermos and the trunk of the Ford

contained bloodstains that were consistent with Stewart’s blood type

and inconsistent with Rose’s. 

On January 14, SBI Agent Frye met with Rose to discuss the

results of the searches of the two automobiles. Rose told Frye that he

did not want to discuss Stewart’s disappearance "because the situation

surrounding it was too bad to talk about, and he was concerned about

what his family would think of him." State v. Rose, 439 S.E.2d 518,

525 (N.C. 1994). Rose told the officers, however, that "the disposition

of Patricia Stewart was so bad" that they would not be able to find

any of her remains. Id.

On January 15, agents spoke again with Rose, this time in the presence of his mother. Rose’s mother told Rose that he needed to reveal

any information he had regarding Stewart’s disappearance. Rose

informed the agents that Stewart’s body was located at his grandmother’s farm. Agents radioed this information to officers searching

for the victim’s body, who in turn informed the agents that the body

had already been uncovered. 

Rose then was arrested and given Miranda warnings for the first

time. Miranda v. Arizona, 384 U.S. 436 (1966). Rose waived his

2These facts are derived from the statement of facts in the Supreme

Court of North Carolina’s published opinion affirming Rose’s conviction

on direct appeal. See State v. Rose, 439 S.E.2d 518 (N.C. 1994). 

ROSE v. LEE 3
Miranda rights and gave an additional statement in which he said he

had been involved in a relationship with Stewart, which Stewart had

been keeping secret. According to Rose’s statement, he was in Stewart’s apartment after midnight on Wednesday, January 2. While he

was there, a friend came to visit Stewart, and Stewart asked Rose to

leave and come back later, which he did. Rose smoked marijuana and

drank a quart of whiskey before going to Stewart’s apartment. There,

Rose claims that he told Stewart that he was going back to his girlfriend in Alabama; Stewart retorted that she would have him arrested

for rape if he tried to leave her. In response to this threat, Rose said

that he "just went crazy," stabbing, beating, and choking Stewart to

death. Rose, 439 S.E.2d at 525. 

Rose then wrapped Stewart’s body in her bed linen and put it in the

trunk of his Pontiac, but the car would not start. Rose stated that he

then went back inside and tried to clean up, leaving Stewart in the

trunk. He took the knife that he used to kill Stewart to his apartment,

cleaned it, and placed it in a box in his bedroom. The next evening,

Rose borrowed his sister’s Ford automobile and transferred the body

to the trunk of the Ford. He drove the Ford to his grandmother’s farm,

took the body behind the house, used his grandmother’s hoe to dig a

shallow grave, poured gasoline on the body, set it afire, and walked

away. When the fire went out, Rose returned and covered the body

with rocks, leaves, and tree branches. 

Rose’s testimony during the guilt phase of the trial was similar to

his confession, with a few deviations. Rose testified that after he told

Stewart he was going to Alabama, Stewart reached over and picked

up a pocket knife that she had lying on her nightstand beside her bed.

Rose claimed that Stewart shook the knife and said, "You ain’t going

nowhere." Id. at 526. Rose testified that he jumped up and hit Stewart’s arm, causing the knife to hit her in the head, and immediately

jumped on top of her. Rose testified that he then "heard something

pop, backed up and saw blood coming out of Stewart’s head." Id.

Rose testified that "he did not remember choking Stewart that morning and that he did not intend to harm her and did not think anything

like that would happen." Id.

A medical examiner testified that Rose stabbed Stewart five times,

with four knife wounds to her body and one knife wound to her head

that was inflicted with enough force to pierce her skull. Id. at 532.

4 ROSE v. LEE
B.

The jury returned a verdict finding Rose guilty of first-degree murder. Following the return of the guilty verdict, a capital sentencing

proceeding was held pursuant to N.C. Gen. Stat. § 15A-2000 (1999).

At sentencing, the State introduced as aggravating evidence exhibits

related to Rose’s conviction in Mississippi for attempted rape. See

Rose, 439 S.E.2d at 526. As mitigating evidence, Rose testified about

his troubled childhood and upbringing. See id. He testified that his

father was an alcoholic and was abusive to Rose’s mother and siblings. See id. At the age of twelve, Rose and his sister were taken to

live with a relative and told that they were going to be given away.

See id. Rose also described his military service in the United States

Marine Corps and the Army, from which he received honorable discharges. See id. Rose’s mother and sisters also testified, verifying

Rose’s troubled upbringing. See id. at 527. Sheriff’s Department

employees testified that Rose had been a good prisoner, and Rose’s

employer testified that he was a good employee. See id. Based upon

a weighing of these various mitigating and aggravating factors, the

jury recommended, and the trial court imposed, a sentence of death.

See N.C. Gen. Stat. § 15A-2000(b) (2000). 

On May 12, 1992, Rose appealed to the North Carolina Supreme

Court, which unanimously found no error in Rose’s conviction or

death sentence. On June 27, 1994, the United States Supreme Court

denied Rose’s petition for a writ of certiorari. Rose filed a petition for

state habeas corpus relief, which is termed a Motion for Appropriate

Relief ("MAR") in North Carolina. After holding an evidentiary hearing, the state habeas court denied Rose’s requested relief. 

Rose then petitioned the federal district court for habeas relief,

challenging his conviction and sentence on numerous grounds. The

petition was referred to a United States Magistrate Judge, who recommended that the district court dismiss on summary judgment the

majority of Rose’s claims but grant the writ with respect to Rose’s

ineffective assistance of counsel claim. 

After a de novo review, the district court agreed with the magistrate

judge’s recommendation and issued a writ of habeas corpus with

respect to Rose’s ineffective assistance of counsel claim but disROSE v. LEE 5
missed Rose’s habeas petition with respect to Rose’s remaining

claims. The district court remanded the ineffective assistance of counsel claim to the state habeas court to determine whether Rose can

establish his claim under the governing legal standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). 

Rose seeks to appeal three issues upon which the district court

entered summary judgment in favor of the State: (1) whether his confession was illegally obtained; (2) whether the imposition of the death

penalty in North Carolina unconstitutionally discriminates against the

impoverished; and (3) whether the ex post facto clause bars the application of N.C. Gen. Stat. § 15A-1419 to his habeas petition. We will

address each of Rose’s arguments and then turn to the State’s argument that the district court erred by remanding the ineffective assistance claim to the state habeas court for application of the proper legal

standard.3

II.

To be entitled to a certificate of appealability, Rose must make "a

substantial showing of the denial of a constitutional right." 28

U.S.C.A. § 2253(c)(2) (West Supp. 2000). In Slack v. McDaniel, 529

U.S. 473 (2000), the United States Supreme Court clarified § 2253’s

requirements. To make the required showing, a petitioner must demonstrate that "reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve

encouragement to proceed further.’" Id. at 483-84 (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). 

A. ROSE’S EX POST FACTO CLAIM

Rose filed his MAR on October 4, 1995. On June 21, 1996, the

North Carolina legislature amended N.C. Gen. Stat. § 15A-1419

(1999 & Supp. 2000), which addresses default of claims on state col3Rose also argues that the district court made several factual errors

regarding the contents of the record. Without deciding whether the district court erred, we hold that the alleged errors are without substantive

effect. 

6 ROSE v. LEE
lateral review. Prior to this amendment, the procedural bars established under § 15A-1419 were discretionary. The amendment makes

the procedural bars found therein mandatory rather than discretionary,

unless the petitioner can establish good cause or that the failure to

consider the claim will result in a fundamental miscarriage of justice.

N.C. Gen. Stat. § 15A-1419(b).4

The State habeas court applied the amended version of § 15A-1419

to several of Rose’s claims and held the claims procedurally barred.

Rose argues that the application of § 15A-1419 as amended violates

the Ex Post Facto Clause of the United States Constitution. U.S.

Const. art. 1, § 9, cl. 3. The district court rejected this claim on the

merits. Because the district court rejected the Ex Post Facto claim on

its merits, Rose must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable

or wrong. See Slack, 529 U.S. at 484. 

The Supreme Court has recognized four categories of Ex Post

Facto criminal laws. Carmell v. Texas, 529 U.S. 513, 552 (2000). A

law violates the Ex Post Facto Clause when it "punishes as a crime

an act previously committed, which was innocent when done; which

makes more burdensome the punishment for a crime, after its commission; or which deprives one charged with crime of any defense

available according to law at the time when the act was committed,"

Collins v. Youngblood, 497 U.S. 37, 42 (1990) (internal quotation

marks omitted), or "alter[s] the legal rules of evidence, and receive[s]

less, or different, testimony, than the law required at the time of the

commission of the offence, in order to convict the offender," Carmell,

529 U.S. at 551 (internal quotation marks omitted). 

Retroactive application of a procedural law such as § 15A-1419

can violate the Ex Post Facto Clause, but only when the procedural

law falls within one of the above four categories. See Collins, 497

U.S. at 46 (holding that "by simply labeling a law ‘procedural,’ a legislature does not thereby immunize it from scrutiny under the Ex Post

Facto Clause."); Carmell, 529 U.S. at 537 (noting that Collins "eliminated a doctrinal hitch that had developed in our cases, which pur4The North Carolina legislature amended § 15A-1419 in other

respects, but the other amendments are not relevant to Rose’s claim. 

ROSE v. LEE 7
ported to define the scope of the Clause along an axis distinguishing

between laws involving ‘substantial protections’ and those that are

merely ‘procedural.’"). 

The amendment to § 15A-1419 making the procedural bars mandatory rather than discretionary does not alter the definition of the crime

of first degree murder, of which Rose was convicted, nor does it

change his available defenses to the crime of murder or otherwise

increase the punishment for which he is eligible as a result of that

conviction. Similarly, the amendment does not alter a legal rule of

evidence in a manner that requires less evidence to support a conviction. While it is true that the amendment to the procedural bar provision worked to Rose’s disadvantage, the Supreme Court explicitly has

held that a law does not violate the Ex Post Facto Clause simply

because it "alters the situation of a party to his disadvantage." Collins,

497 U.S. at 48-49 (emphasis omitted). Instead, the Supreme Court has

emphasized that the Ex Post Facto Clause only prohibits changes in

the law that affect the "scope of a criminal prohibition after the

[unlawful] act is done." Id. at 49. The 1996 amendment to § 15A1419 does not affect the scope of Rose’s criminal offense in any of

the ways enumerated by the Court in Carmell. Accordingly, reasonable jurists could not disagree with the district court’s determination

that the retroactive application of the 1996 version of § 15A-1419

does not violate the Ex Post Facto Clause. Therefore, we deny Rose’s

request for a certificate of appealability as to this issue. 

B. PROCEDURALLY DEFAULTED CLAIMS

Rose seeks to appeal the district court’s denial of several claims

pursuant to the district court’s finding that the claims were procedurally defaulted. As established in Slack, to secure a certificate of

appealability on claims that the district court denied pursuant to procedural grounds, Rose must demonstrate both (1) "that jurists of reason would find it debatable whether the petition states a valid claim

of the denial of a constitutional right" and (2) "that jurists of reason

would find it debatable whether the district court was correct in its

procedural ruling." Slack, 529 U.S. at 484. In conducting our analysis

under this two-prong test, we may proceed first "to resolve the issue

whose answer is more apparent from the record and arguments." Id.

at 485. 

8 ROSE v. LEE
1. Rose’s Confession

Rose first seeks to appeal the district court’s denial of his claim that

his confession was unconstitutionally compelled with a promise of

life imprisonment and then used to secure his death sentence. The district court found that Rose’s illegally obtained confession claim was

procedurally defaulted for purposes of federal habeas review because

the State habeas court determined that it was procedurally barred pursuant to N.C. Gen. Stat. § 15A-1419(a)(2) (1996).5

 To determine

whether Rose is entitled to a certificate of appealability on his confession claim, we first address "whether jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a

constitutional right." Slack, 529 U.S. at 484. 

Before the State habeas court, Rose submitted affidavits from his

mother and sister, both dated January 6, 1998, averring that on January 15, 1991, an agent told them and Rose directly that "things would

go easier on [Rose] if he told them where the body was."6 (J.A. at

769.) The State habeas court noted that the allegations contained in

the affidavits were presented and considered on direct appeal. As

Rose’s counsel acknowledged at oral argument, Rose’s claim is not

one premised upon an alleged violation of Miranda v. Arizona, 384

5North Carolina General Statute § 15A-1419(a)(2) provides that issues

raised in a MAR that were previously decided on appeal are barred from

further consideration in State habeas review. "In the absence of any proffered reason why relitigation of these claims would have been proper, the

superior court is precluded from relitigating issues decided by the

Supreme Court of North Carolina." Smith v. Dixon, 14 F.3d 956, 968 (4th

Cir. 1994) (citing Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168

(1939) (holding that the decision of a higher court forecloses relitigation

of issues the mandate lays to rest)). 

6At oral argument, Rose’s counsel also argued that Rose was told that

he would not get the death penalty if he confessed. In support of this contention, Rose’s counsel points to Rose’s mother’s affidavit, in which she

states, "I asked Special Agent Frye whether the police would seek the

death penalty in the case and [Frye] told Diana and me that the police

would not seek the death penalty." (J.A. at 769.) Nowhere in the affidavit

does Rose’s mother aver that she relayed this promise to Rose or that the

promise was repeated in front of Rose. (J.A. at 769.) Thus, we need not

address the coerciveness of this alleged promise. 

ROSE v. LEE 9
U.S. 436 (1966), but is instead premised upon a promise having been

made in exchange for Rose’s confession. 

We measure whether a confession was unconstitutionally coerced

by the totality of the circumstances. See Arizona v. Fulminante, 499

U.S. 279, 285-86 (1991). At one time, the Supreme Court had held

that a confession could not constitutionally be obtained by "any direct

or implied promises, however slight, nor by the exertion of any

improper influence." Bram v. United States, 168 U.S. 532, 542-43

(1897) (internal quotation marks omitted). As the Court in Fulminante

stated, however, "this passage from Bram . . . under current precedent

does not state the standard for determining the voluntariness of a confession." Fulminante, 499 U.S. at 285. Thus, the existence of a promise in connection with a confession does not render a confession per

se involuntary. See id.; United States v. Braxton, 112 F.3d 777, 780

(4th Cir. 1997) (en banc) ("The mere existence of threats, violence,

implied promises, improper influence, or other coercive police activity . . . does not automatically render a confession involuntary.").

Here, the investigating agent’s promise that "things would go easier

on Rose" if he confessed did not involve actual physical violence or

"a credible threat of physical violence." Fulminante, 499 U.S. at 288

(holding that a confession was unconstitutionally coerced based upon

the totality of the circumstances and placing special emphasis on the

fact that the interrogating agent promised to protect the suspect from

physical violence from other inmates in exchange for his confession);

see also Payne v. Arkansas, 356 U.S. 560, 564-67 (1958) (holding

that a confession was unconstitutionally coerced because the interrogating police officer had promised that if the accused confessed, the

officer would protect the accused from an angry mob outside the jailhouse door). Nor is there any indication that the investigating agent’s

statement "critically impaired" Rose’s "capacity for selfdetermination," Braxton, 112 F.3d at 780 (internal quotation marks

omitted), or that Rose’s will "was overborne in such a way as to render his confession the product of coercion," Fulminante, 499 U.S. at

288; cf. Braxton, 112 F.3d at 782 (noting that "[a]dmonishing a suspect to tell the truth during an investigatory interview" by advising

him of potential consequences of failing to tell the truth "does not

constitute coercive police conduct rendering a statement involuntary."). Thus, we decline to hold that the cryptic promise that "things

10 ROSE v. LEE
would go easier" on Rose if he confessed amounts to unconstitutional

coercion. 

Moreover, the circumstances surrounding the confession are replete

with indicia of voluntariness. As the State court noted on direct

appeal, the evidence shows that Rose voluntarily agreed to talk with

law enforcement officers at every juncture leading up to his confession. State v. Rose, 439 S.E.2d 518, 536 (N.C. 1994). Rose was

repeatedly told he was not under arrest and was free to leave at any

time. See id. At no time was Rose handcuffed, nor was his freedom

of movement otherwise restrained. See id. Additionally, the questioning immediately preceeding Rose’s confession, which took place at

the apartment where Rose was staying, occured in a non-custodial setting. See Braxton, 112 F.3d at 783 (holding that an investigatory interview was clearly non-custodial and that the confession was voluntary

when the interview took place in the suspect’s mother’s home, the

suspect freely consented to answer the officers’ questions, and the

suspect was at liberty to terminate the discussion at any time).

Accordingly, the totality of the circumstances does not support a finding that Rose’s confession was obtained in violation of the Constitution. Because we cannot conclude that "reasonable jurists" would find

the question of whether Rose has established a valid constitutional

claim "debatable," Slack, 529 U.S. at 484, we deny Rose’s request for

a certificate of appealability.7

2. Discrimination Claim

Rose next seeks to appeal the district court’s denial of Rose’s claim

that North Carolina unconstitutionally discriminates based upon economics in its imposition of the death penalty. Rose argues that North

Carolina imposes the death penalty only upon poor people, in violation of the Fifth and Fourteenth Amendments of the United States

7Having concluded that Rose has failed to establish the first prong of

the Slack test, we need not address whether the district court was correct

in its procedural default ruling. See Slack v. McDaniel, 529 U.S. 473, 484

(2000) (noting that when the district court denies a claim pursuant to procedural grounds, the petitioner must demonstrate both the viability of the

constitutional claim and the correctness of the district court’s procuedural ruling to be entitled to a certificate of appealability). 

ROSE v. LEE 11
Constitution. The district court declined to address the merits of

Rose’s economic discrimination claim because Rose failed to "fairly

present" the issue to the State courts; thus, the district court held the

claim procedurally barred. (J.A. at 18-19.) 

In his Reply Brief, Rose admits that his economic discrimination

claim was not presented to the State courts, although he did present

a racial discrimination claim.8 Because Rose concedes that he did not

present his economic discrimination claim to the North Carolina

courts, we are precluded from addressing the merits of this claim

unless Rose demonstrates cause for his state-court default and prejudice resulting therefrom. Edwards v. Carpenter, 529 U.S. 446, 451

(2000).9

On appeal, Rose argues that he has established sufficient cause to

overcome the procedural default of his claim, claiming that the facts

underlying the economic discrimination claim were not readily available to Rose’s counsel during the State proceedings. Initially, we note

that the record does not reflect that Rose presented any argument with

respect to cause before the district court. (J.A. at 19) (stating that

"[n]owhere does Petitioner show cause as to why he did not raise his

economic discrimination claim in State court"). Thus, Rose’s cause

argument is deemed waived for purposes of this appeal. See Skipper

v. French, 130 F.3d 603, 610 (4th Cir. 1997) (noting the general rule

that theories presented for the first time on appeal will not be considered). 

8Before the district court, Rose argued that a claim of economic discrimination is not fundamentally different from a claim of racial discrimination for purposes of determining whether his economic discrimination

claim was presented to the State courts. On appeal, Rose concedes that

his "new" economic discrimination claim was never presented to the

State courts. (Appellant’s Reply Br. at 13) ("Although this claim was

never raised in the original state proceedings or in the State Habeas Court

. . . ."). 

9The one exception to the rule requiring cause and prejudice is where

the petitioner is able to demonstrate that the habeas court’s failure to

review his federal claim will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Rose does not

argue the applicability of the fundamental miscarriage of justice exception to his discrimination claim. 

12 ROSE v. LEE
Assuming, however, that Rose raised his cause argument below,

we find it inadequate to overcome the procedural default. It is true

that a petitioner can establish cause by showing "that the factual basis

for [the] claim was unavailable to him at the time he filed his state

habeas petition." Breard v. Pruett, 134 F.3d 615, 620 (4th Cir. 1998);

see McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). We made clear

in Murphy v. Netherland, 116 F.3d 97 (4th Cir. 1997), however, that

a petitioner cannot establish cause when the facts underlying the

claim were in existence and were available upon a reasonably diligent

search. Id. at 100. 

The statistics underlying the economic discrimination claim were

available to Rose’s counsel upon a reasonably diligent search.10 Counsel’s failure to consider the argument is insufficient to constitute

cause. See Murray v. Carrier, 477 U.S. 478, 488 (1986) (holding that

cause must turn on "whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule"). 

No appeal is warranted when "a plain procedural bar is present and

the district court is correct to invoke it" to dispose of a claim. Slack,

529 U.S. at 484. Thus, we deny a certificate of appealability on this

issue. 

III.

Having determined that Rose is not entitled to a certificate of

appealability on the issues raised in his appeal, we next address the

State’s argument that the district court erred by granting a writ of

habeas corpus with respect to Rose’s ineffective assistance of counsel

claim. The parties agree that the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214,

governs our review of this issue. Pursuant to that statute, a federal

court may not grant a writ of habeas corpus with respect to a claim

10At oral argument, counsel expressed no difficulty in having obtained

the statistics underlying Rose’s racial discrimination claim. Similar to

statistics regarding capital defendants’ race, courts maintain records indicating which capital defendants were represented by court-appointed

counsel and are, therefore, indigent. 

ROSE v. LEE 13
adjudicated on the merits in a state court proceeding unless the state

court’s adjudication: (1) "resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,"

28 U.S.C.A § 2254(d)(1) (West Supp. 2000); 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." Id.

at § 2254(d)(2). 

The district court held that the State habeas court rendered its decision in a manner contrary to clearly established law when it denied

Rose’s ineffective assistance of counsel claim pursuant to the wrong

burden of proof. Although the district court noted that Rose’s ineffective assistance of counsel claim is meritless, the district court held that

it could not independently reassess Rose’s ineffective assistance of

counsel claim according to the proper standard; instead, the district

court "remanded"11 the claim to the State habeas court. While we

agree that the State habeas court applied the wrong burden of proof

to Rose’s ineffective assistance claim, we disagree with the district

court’s conclusion that a federal court lacks authority to conduct an

independent review of the claim. 

A.

Initially, we note that "clearly established" Supreme Court precedent governs Rose’s ineffective assistance of counsel claim. Williams

v. Taylor, 529 U.S. 362, 390 (2000) (Terry Williams) (holding that an

ineffective assistance of counsel claim is clearly established Supreme

Court precedent within the meaning of § 2254(d)(1)). The Sixth

Amendment, as incorporated by the Fourteenth Amendment, entitles

a criminal defendant to effective assistance of counsel on direct

appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). In Strickland

v. Washington, 466 U.S. 668 (1984), the United States Supreme Court

11While federal habeas courts often use the language of "remand," as

a technical matter, we do not believe that a federal habeas court can "remand" a case to a state habeas court. See Billiot v. Puckett, 135 F.3d 311,

316 n.5 (5th Cir. 1998) (noting that federal habeas courts cannot remand

cases to state courts). 

14 ROSE v. LEE
held that an ineffective assistance of counsel claim has two components: 

First, the defendant must show that counsel’s performance

was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the

"counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing

that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 

Id. at 687. To establish ineffectiveness, a "defendant must show that

counsel’s representation fell below an objective standard of reasonableness." Id. at 688. To establish prejudice he "must show that there

is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence

in the outcome." Id. at 694. 

B.

We next address whether the State habeas court’s ruling was "contrary to" the Strickland test. Williams, 529 U.S. at 412. As the State

concedes, the State habeas court’s adjudication of Rose’s ineffective

assistance of counsel claim was "contrary to" the Strickland test

because the State court applied the wrong burden of proof with

respect to the prejudice prong. In its Memorandum Order and Final

Opinion, the State habeas court denied Rose’s ineffective assistance

of counsel claim because the "defendant . . . failed to carry his burden

of proof to show [that the result of the proceeding would have been

different] by the preponderance of the evidence." (J.A. at 285.) In

Williams, Justice O’Connor used as an example this precise error to

define the "contrary to" prong:

If a state court were to reject a prisoner’s claim of ineffective assistance of counsel on the grounds that the prisoner

had not established by a preponderance of the evidence that

the result of his criminal proceeding would have been different, that decision would be "diametrically different," "oppoROSE v. LEE 15
site in character or nature," and "mutually opposed" to our

clearly established precedent because we held in Strickland

that the prisoner need only demonstrate a "reasonable probability that . . . the result of the proceeding would have been

different." 

Williams, 529 U.S. at 405-06. Thus, we agree with the district court

that the decision-making process by which the State habeas court

adjudicated Rose’s ineffective assistance of counsel claim is contrary

to clearly established Supreme Court law. 

C.

Upon recognizing that the State habeas court’s adjudication of

Rose’s ineffective assistance claim was contrary to clearly established

law, the district court held that it lacked the authority to conduct a de

novo review of Rose’s ineffective assistance claim using the proper

legal standard under Strickland. In coming to this conclusion, the district court relied upon the magistrate judge’s recommendation that

Williams bars harmless error review of ineffective assistance claims.

Of course, we agree with the district court that, if Rose was denied

the effective assistance of counsel, the error would not be subject to

harmless error review. Williams, 529 U.S. at 375 (reiterating the wellsettled rule that "[t]he deprivation of the right to the effective assistance of counsel" is a structural error to which harmless error review

does not apply). We do not interpret Williams, however, as barring

our de novo review of whether Rose was, in fact, denied effective

assistance of counsel. To the contrary, when we find that a state court

decision is contrary to clearly established federal law, we interpret

Williams as reaffirming the federal habeas corpus courts’ obligation

to review state court judgments independently to determine whether

issuance of a writ is warranted. 

In Williams, as in this case, the state court erred in its framing of

the applicable legal standard under the controlling Supreme Court

precedent of Strickland. See Williams, 529 U.S. at 391. After concluding that the state court applied the incorrect standard, each of the

Court’s three separate opinions embarked upon a de novo review of

the underlying ineffective assistance of counsel claim. See id. at 395-

399 (opinion of Stevens, J.); id. at 415 (opinion of O’Connor, J.); id.

16 ROSE v. LEE
at 418-19 (Rehnquist, J., concurring in part and dissenting in part).

Thus, rather than call into doubt our authority to conduct a de novo

review of Rose’s ineffective assistance of counsel claim, Williams

conclusively affirms our authority to conduct such a review. 

Our authority and obligation to conduct an independent review of

the substantive constitutional claim is firmly rooted in the underlying

purpose of the writ of habeas corpus, which is to ensure that prisoners

are not held in custody "in violation of the Constitution or laws or

treaties of the United States." 28 U.S.C.A. § 2254(a). As the Williams

Court noted, the writ of habeas corpus is not designed to correct all

constitutional errors, much less all errors of any kind. See Williams,

529 U.S. at 375 ("It is, of course, well settled that the fact that constitutional error occurred in the proceedings that led to a state-court conviction may not alone be sufficient reason for concluding that a

prisoner is entitled to the remedy of habeas."); see also id. at 386

(stating that a federal court must "attend with the utmost care to statecourt decisions, including all of the reasons supporting their decisions, before concluding that those proceedings were infected by constitutional error sufficiently serious to warrant the issuance of the

writ.") (opinion of Stevens, J.) (emphasis added). Additionally, in

analyzing § 2254, we must be cognizant of § 2254’s incorporation of

concerns for comity, federalism, and finality. See Williams v. Taylor,

529 U.S. 420, 436 (2000) (Michael Williams) ("There is no doubt

Congress intended AEDPA to advance these [comity, finality, and

federalism] doctrines."). 

As Rose concedes, the facts related to his ineffective assistance of

counsel claim have been fully developed by the State habeas court

pursuant to a four-day evidentiary hearing, during which five witnesses testified and several affidavits were introduced, and the State

habeas court resolved all credibility determinations related to Rose’s

ineffective assistance of counsel claim. Despite Rose’s concession, he

contends that issuance of a conditional writ is warranted because the

State court is better suited to apply the Strickland standard to his

claim, insofar as the application of the standard is a fact-intensive

inquiry that depends on the subtleties between varying burdens of

proof. The evidence introduced before the State habeas court, as well

as the court’s factual findings and conclusions therefrom, are fully set

forth in that court’s Memorandum Order and Final Opinion and,

ROSE v. LEE 17
therefore, are easily accessible to this Court on review, as is the full

record of Rose’s prior state proceedings. Inasmuch as the only task

remaining is application of a legal standard crafted pursuant to federal

law to facts that are readily available to this Court, we consider ourselves well-equipped to evaluate the merits of Rose’s ineffective

assistance claim. 

If, after applying the Strickland standard to the facts developed by

the State habeas court, we determine that Rose actually received

effective assistance of counsel, Rose will have failed to demonstrate

that constitutional error infected his trial or conviction in any way.

Neither Williams nor § 2254(d)(1) requires issuance of a writ before

determining the critical question of whether a prisoner is being held

in violation of the Constitution or laws of the United States. Thus, the

proper interpretation of the role of § 2254(d)(1) in habeas corpus

review is that it establishes a threshold by which we determine

whether we are authorized to issue a writ, but it does not compel the

issuance of a writ once the standard set forth therein has been satisfied. See id. at 412 (deeming § 2254(d)(1) a "new constraint" on federal courts’ power to issue writs and stating that a federal court "may"

issue the writ upon determining that the standards found in

§ 2254(d)(1) are satisfied); see also Weeks v. Angelone, 528 U.S. 225,

237 (2000) (referring to the issue under § 2254(d)(1) as whether

habeas relief is "preclude[d]" or "prohibit[ed]," rather than whether

such relief is mandated). Rather, § 2254(d)(1) must be read in conjunction with the purpose of the writ, as outlined in § 2254(a), which

is to protect a prisoner from being held in violation of federal law.

Accordingly, following the Supreme Court’s approach in Williams,

we will conduct a de novo review of Rose’s claim to determine

whether Rose is being held in custody in violation of his constitutional right to effective assistance of counsel, using the extensive facts

that the State habeas court has developed.

IV.

Turning to the merits of Rose’s ineffective assistance of counsel

claim, Rose contends that he was denied the effective assistance of

counsel at his death penalty proceeding because his attorneys did not

adequately investigate the events surrounding his prior violent felony

attempted rape conviction that was used by the State as an aggravat18 ROSE v. LEE
ing factor. Had his counsel investigated the events surrounding the

attempted rape conviction, Rose argues, counsel would have discovered significant mitigating evidence relating to Rose’s mental health.

Specifically, Rose argues that his counsel should have requested his

prison records from his prior attempted rape conviction, which contained information indicating that the prison doctors had diagnosed

Rose as suffering from sexual and social disorders. Properly applying

Strickland, the record supports the State habeas court’s ultimate rejection of Rose’s ineffective assistance of counsel claim. 

During the evidentiary hearing before the State habeas court, Rose

introduced testimony pertinent to the mitigating evidence of mental

disorders that he currently says should have been introduced to the

jury. Dr. Brown and Dr. Berlin, both psychiatrists, testified separately

that Rose relayed to them a dramatically different story regarding

Stewart’s death than Rose had relayed to his trial counsel, law

enforcement officers, and the jury. 

Dr. Berlin testified that Rose told him that he did not have a relationship with Stewart, but he had instead been spying on her through

her window on the night of the murder. On this account, Rose waited

until Stewart was asleep before entering her apartment through a window. Rose went to Stewart’s bed and stabbed Stewart, wounding but

not killing her. Stewart told Rose that if he left without killing her,

Rose would escape punishment because she would not be able to

identify him. Rose placed Stewart’s head in his lap and strangled her

with a nylon strap until he heard several "pops" and "snaps." (J.A. at

76.) Rose then put her body in the trunk of his car and violated her

by inserting numchucks into her vagina. Rose then masturbated by the

car’s back bumper. Rose told Dr. Berlin that he had, prior to trial, told

one of his trial attorneys the truth about Stewart’s death, but the attorney dismissed it. 

In addition to relaying this version of Stewart’s murder, Rose told

Dr. Berlin that he had entered as many as 20 homes and stood fantasizing over the bed of the occupants, while holding a knife and having

thoughts of injuring them, and on more than 100 occasions he also

had entered other homes and masturbated over people’s beds. Based

upon Rose’s statements and his prior conviction for attempted rape,

Dr. Berlin opined that Rose had sexual disorders, voyeurism and sexROSE v. LEE 19
ual sadism, and was mentally impaired respecting his ability to conform his conduct to the requirements of law. Rose told Dr. Brown a

similar story about Stewart’s murder, adding that before he assaulted

Stewart’s vagina with the handles of the numchucks, he burned her

vaginal area with a "pencil torch." (J.A. at 259.) 

Other evidence of Rose’s disorders included an evaluation from

Dorothea Dix Hospital. Prior to trial, the trial court had ordered that

Rose undergo a psychiatric evaluation at Dorothea Dix Hospital to

gauge Rose’s competence to stand trial. The report issued in conjunction with that evaluation concluded that Rose suffered from a provisional sexual disorder and a mixed personality disorder, but that Rose

was otherwise competent to stand trial. Rose argues that, in light of

this preliminary evidence of mental disorders, his trial counsel should

have further investigated and presented evidence of his disorders to

the jury to support a statutory mitigating factor. 

As the State habeas court noted, however, Mr. J.K. Coward, Jr.,

Rose’s lead trial counsel, testified that Coward and his co-counsel,

Marcellus Buchanan, were fully aware of the diagnosis of the disorders in the Dorothea Dix report, but they had decided not to pursue

a defense that included Rose’s sexual disorders because they felt that

introducing "further bad elements into the case" would mean that they

"would have no chance whatsoever with the jury." (J.A. at 248.) Coward testified that introducing any testimony regarding Rose’s sexual

disorders during the sentencing phase "would eliminate the chance for

any kind of leniency." (J.A. at 248.) Additionally, Coward and

Buchanan felt constrained not to introduce evidence of Rose’s sexual

disorders because Rose explicitly had instructed them not to present

any evidence that would expose Rose’s children to adverse publicity.

Instead of pursuing Rose’s mental disorders as a defense or a mitigating factor, counsel attempted to avoid any of the sexual content of

Stewart’s murder, which they succeeded in doing. Additionally, counsel attempted to engender sympathy for Rose by focusing on his troubled upbringing, good character, and strong work habits. 

Our review of relevant excerpts from the transcript of the evidentiary hearing and the findings of the State habeas court conclusively

establishes that Rose’s trial counsel acted in an objectively reasonable

20 ROSE v. LEE
fashion by declining to pursue a defense based upon Rose’s sexual

disorders. Rose’s trial counsel made a strategic decision to keep any

evidence of Rose’s sexual disorders out of the trial because they

determined that any such evidence was contrary to the express order

of their client to protect his children and would decrease their chances

of success. See Turner v. Williams, 35 F.3d 872, 904 (4th Cir. 1994)

(holding that where there is a conceivable strategic advantage to the

decision not to introduce certain evidence, that choice is virtually

unassailable on collateral review), overruled on other grounds by

O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996). When counsel

make a reasonable strategic choice based upon an investigation of the

facts, this Court must defer to that strategic choice. Bunch v. Thompson, 949 F.2d 1354, 1364 (4th Cir. 1991) ("Trial counsel is too frequently placed in a no-win situation with respect to possible

mitigating evidence at the sentencing phase of a capital case. The failure to put on such evidence, or the presentation of evidence which

then backfires, may equally expose counsel to collateral charges of

ineffectiveness. The best course for a federal habeas court is to credit

plausible strategic judgments in the trial of a state case."). In light of

their strategic choice to keep sexual content out of the trial, Rose’s

counsel was entirely justified to decline to further investigate Rose’s

prison records related to his Mississipi conviction for attempted rape

in an attempt to uncover additional information about Rose’s sexual

disorders. Thus, Rose has failed to overcome the "strong presumption

that counsel’s conduct [fell] within the wide range of reasonable professional assistance." Strickland v. Washington, 446 U.S. 668, 689

(1984). 

Nor has Rose established that any alleged constitutional deficiency

in the performance of his counsel was prejudicial, that is, that there

is a "reasonable probability" that Rose would have been spared the

death penalty if his counsel had conducted more extensive investigation into his mental health. "A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id. at 694.

Assuming arguendo that Rose’s counsel should have further investigated Rose’s sexual disorders, Coward testified that full knowledge

of the disorders only would have bolstered his strategic decision to

veer away from evidence related to Rose’s sexual disorders. Additionally, Coward testified that the additional evidence of Rose’s sexual

disorders, including Rose’s alternate version of Stewart’s murder,

ROSE v. LEE 21
would only have further impaired Rose’s likelihood of obtaining an

acquittal because the evidence would convince the jury "that Rose

was a sexual predator as well as a murderer." (J.A. at 79, 250.) Coward further pointed out that Rose’s original version of Stewart’s murder allowed Coward to obtain jury instructions on second degree

murder, voluntary manslaughter, self defense, and accident — none

of which would have been available had he presented Rose’s second

version of the murder. 

Nevertheless, Rose argues that but for his counsel’s failure to

uncover additional evidence about his sexual disorders, there is a reasonable probabilty he would have been spared the death penalty. In

support of his argument, Rose points to an affidavit of Samuel Kent

Chapman, one of the jurors from Rose’s trial, which stated that, if

Chapman had found that "Rose suffered from some mental health

problem or disorder, [Chapman] would have voted to give him a life

sentence rather than a death sentence because [he] do[es] not believe

that a person who doesn’t appreciate or understand what he is doing

needs to be executed."12 (J.A. at 477-78.) 

Chapman’s affidavit is too vague to undermine our confidence in

the outcome of the death penalty phase of the proceeding. Chapman’s

affidavit does not indicate that he was aware of Rose’s proffered disorders when he averred that a certain type of mental disorders would

have influenced his decision to impose the death penalty. Rather,

Chapman indicates that when a person has a mental disorder rendering him incapable of appreciating the nature of his conduct, he would

be inclined to vote against the imposition of the death penalty. Rose’s

evidence regarding his mental disorders does not establish that Rose

was incapable of appreciating the nature of his conduct. To the contrary, Dr. Berlin opined that Rose was capable of appreciating the

criminal nature of his conduct but was incapable of conforming his

conduct to the requirements of the law. Similarly, Dr. Brown opined

that Rose was fully able to premeditate and deliberate at the time he

murdered Stewart; "he knew what he was doing and he knew it was

12The State did not object pursuant to Federal Rule of Evidence 606(b)

to our consideration of the Chapman affidavit. Thus, to the extent Rule

606(b) is applicable, the State has waived the argument that the affidavit

fits within the prohibition of Rule 606(b). 

22 ROSE v. LEE
wrong." (J.A. at 262.) Thus, Chapman’s affidavit simply does not

address whether Chapman would have voted against the death penalty

if Chapman possessed full knowledge of Rose’s particular mental disorders and the alternate version of the events surrounding Stewart’s

murder. Accordingly, we do not believe that Chapman’s affidavit is

probative of whether Rose has demonstrated a reasonable probability

that he would have received life imprisonment had the jury been presented with evidence of Rose’s particular mental disorders. 

Mr. Alexander McCoy, who attempted to be certified as a "mitigation specialist," also testified during the evidentiary hearing. The State

habeas court declined to accept McCoy as an expert but accepted his

testimony and opinions relating to capital trials. McCoy opined that

Rose’s trial counsel erred by failing to introduce evidence to support

a mental health instruction. McCoy admitted, however, that if counsel

had introduced Rose’s alternative version of Stewart’s murder to the

jury, it would not have been helpful and would have further supported

the statutory aggravating factor. Additionally, he admitted that he

knew of no case in which evidence presented to the jury that the

defendant suffered from a mental illness that caused him to want to

murder, rape, and torture women was found to be persuasive in

choosing life over death. (J.A. at 245.) As McCoy admits, his opinion

that introduction of such evidence would have been beneficial to Rose

amounts to pure speculation. 

The only other evidence offered to support a finding of prejudice

is that of Mr. David Belser, an attorney who testified as to the proper

standard of care. Belser testified that Coward should have ignored his

client’s wishes and introduced evidence of the sexual disorders. Belser further testified that there was a reasonable probability that introducing such evidence would have changed the jury’s verdict. Belser

also admitted, however, that he had never tried a capital case in Haywood County, had never put on a defense such as the one proposed

by Rose’s post-conviction counsel, and knew of no instance where

such a defense actually had averted a death sentence. Thus, Belser’s

opinion is wholly speculative and is unsupported by the evidence in

the record. 

Far from undermining confidence in either phase of the State trial,

after considering all of the evidence introduced related to Rose’s inefROSE v. LEE 23
fective assistance of counsel claim, the State habeas court determined

that the evidence adduced at the evidentiary hearing constituted a

"considerably more shocking version of events" that "would virtually

have assured conviction of first degree murder" if offered at trial.

(J.A. at 266-67.) Additionally, the State habeas court noted that introduction of Rose’s second version of Stewart’s murder, along with

Rose’s testimony that he had entered over one hundred other homes

and masturbated over people’s beds, would have supported the submission of the aggravating factor in N.C. Gen. Stat. § 15A2000(e)(11), that applies when the murder is part of a course of conduct. Moreover, the State habeas court concluded that, if the jury had

been presented with this "repellent" type of sexual disorder evidence,

"including as it does rape, torture and murder," the jury "would have

been even more likely to recommend a death sentence." (J.A. at 275-

76). We agree that introducing evidence of Rose’s sexual disorders

would have contributed equally, if not more, to the statutory aggravating factors than it would have contributed to any statutory or nonstatutory mitigating factors.13 The alleged mitigation value of intro13In evaluating whether to recommend death, the jury was instructed

that although the jury must unanimously agree that the government

established the existence of an aggravating factor beyond a reasonable

doubt, the jury could consider a mitigating factor in its weighing process

so long as one juror found that Rose established its existence by a preponderance of the evidence. 

The following statutory mitigating factors were submitted at sentencing and were not found by any members of the jury: (i) Rose has no significant history of prior criminal activity; (ii) the murder was committed

while Rose was under the influence of mental or emotional disturbance;

(iii) the capacity of Rose to appreciate the criminality of his conduct or

to conform his conduct to the requirements of the law was impaired; and

(iv) any other circumstances arising from the evidence. 

The following non-statutory mitigating factors were submitted and

were found by one or more member of the jury: (i) Rose was reared until

at least his twelfth birthday in the home of his father and mother, the

father being a chronic alcoholic who was abusive both physically and

mentally to Rose’s mother in the presence of Rose; (ii) Rose is the product of a broken home; (iii) Rose received an honorable discharge from

the United States Army; (iv) Rose received an honorable discharge from

the United States Marine Corps; (v) Rose was a good and obedient pris24 ROSE v. LEE
ducing Rose’s voyeurism and sexual sadism could not possibly outweigh the detrimental effect that would accompany such evidence

because the evidence necessarily introduces components of rape and

torture into Stewart’s murder. Thus, we cannot say that a reasonable

probability exists that the unpresented evidence would have resulted

in a different sentencing decision or that Rose’s counsel’s failure to

investigate further into Rose’s sexual disorders constitutes ineffective

assistance of counsel. See Satcher v. Pruett, 126 F.3d 561, 572-73

(4th Cir. 1997) (holding that petitioner did not establish ineffective

assistance of counsel based upon counsel’s failure to further investigate defendant’s mental disorders when counsel introduced other

types of mitigating evidence and further investigation into mental

health would have produced damaging evidence). Accordingly, we

reverse the district court’s issuance of a writ of habeas corpus on

Rose’s ineffective assistance of counsel claim. 

V.

Because Rose has failed to make a substantial showing of a denial

of a constitutional right, we deny his request for a certificate of

appealability on the claims rejected by the district court. Moreover,

because we hold that Rose has failed to establish that he was denied

oner in the Graham County jail for 15 months, and at no time caused any

problem with the jailer or other personnel of the Sheriff’s Department or

with any other inmates confined there; (vi) Rose was a good and obedient prisoner in Haywood County jail for 12 days; (vii) Rose cooperated

with agents of the SBI and members of the Graham County Sheriff’s

Departments when he, at their request, agreed to take and did take a

polygraph test at a time when he was not in custody and was free to

come and go as he pleased; (viiii) Rose had been a good and reliable

employee of Tuckaseegee Mills for a substantial period of time prior to

January 1, 1991; and (ix) Rose had a good character and reputation for

truth and veracity in the work community of his place of employment.

The following statutory aggravating factors were presented to the jury

and were found unanimously to be applicable beyond a reasonable doubt:

(i) Rose has been previously convicted of a felony involving the use or

threat of violence to another person; and (ii) the facts surrounding Stewart’s murder were particularly heinous, atrocious, or cruel. 

ROSE v. LEE 25
his Sixth Amendment right to effective assistance of counsel, we

reverse the portion of the district court’s judgment granting a writ of

habeas corpus with respect to Rose’s ineffective assistance of counsel

claim. 

AFFIRMED IN PART AND REVERSED IN PART

26 ROSE v. LEE