PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4

ELRICO DARNELL FOWLER,

Petitioner − Appellant,

v.

CARLTON B. JOYNER, Warden, Central Prison, Raleigh, North 

Carolina,

Respondent − Appellee.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

District Judge. (3:09-cv-00051-FDW)

Argued: April 11, 2014 Decided: June 2, 2014

Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS, 

Senior Circuit Judge.

Judgment affirmed and motion denied by published opinion. Chief 

Judge Traxler wrote the opinion, in which Judge Duncan joined. 

Senior Judge Davis wrote an opinion concurring in the judgment 

in part and dissenting in part.

ARGUED: Mark Jason Pickett, CENTER FOR DEATH PENALTY LITIGATION, 

Durham, North Carolina, for Appellant. Sonya M. CallowayDurham, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North 

Carolina, for Appellee. ON BRIEF: Shelagh Rebecca Kenney, 

CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for 

Appellant. Roy Cooper, Attorney General, NORTH CAROLINA 

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
2

TRAXLER, Chief Judge:

Petitioner Elrico Darnell Fowler, a North Carolina death 

row inmate, appeals the district court’s denial of his petition 

for a writ of habeas corpus under 28 U.S.C. § 2254. We granted 

a certificate of appealability to consider Fowler’s claim that 

an eyewitness’s in-court identification violated his due process 

rights under the Fourteenth Amendment. Because the North 

Carolina state court’s rejection of Fowler’s claim was not 

contrary to, or an unreasonable application of, clearly 

established federal law, as determined by the United States 

Supreme Court, we affirm the district court’s denial of Fowler’s 

petition for habeas relief.

While this appeal was pending, Fowler filed a motion 

requesting that we designate his current, appointed counsel to 

be “Martinez counsel,” referencing the Supreme Court decision in 

Martinez v. Ryan, 132 S. Ct. 1309 (2012), and our decision 

applying it in Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), 

and remand the matter to the district court for further 

investigation and amendments, if appropriate, to his § 2254 

petition. Because Fowler had the benefit of the qualified, 

independent counsel called for in Juniper and he failed to raise 

any Martinez-based claims below, we deny the motion as well.
3

I. 

A. 

Fowler was convicted in North Carolina state court of the 

first-degree murder of Bobby Richmond, assault with a deadly 

weapon with intent to kill Bharat Shah, and two counts of 

robbery with a dangerous weapon. All of the convictions arise 

out of an armed robbery that occurred at a Howard Johnson’s 

Motel in Charlotte, North Carolina, on December 31, 1995. The 

circumstances surrounding the crime, as summarized by the North 

Carolina Supreme Court, are as follows:

On 31 December 1995 at approximately 10:45 p.m., Bobby 

Richmond (Richmond), an employee at a Howard Johnson’s 

Motel in Charlotte, North Carolina, entered the motel 

lobby looking for ice. Bharat Shah (Shah) was working 

as the motel night clerk. About five minutes later, 

two black males entered the motel and approached the 

check-in counter. One of the men pulled out a gun and 

ordered Richmond to get on the ground. The other man 

ordered Shah to “open the register and give [him] the 

money.” While Shah was handing over the money, the 

man with the gun shot both Richmond and Shah. He then 

ordered Shah to open the office safe. When Shah 

stated he did not have the combination, the man shot 

Shah again. Both assailants then fled the motel.

The Charlotte–Mecklenburg Police arrived at the 

scene at 11:04 p.m. and found Richmond and Shah lying 

near the counter. Richmond was unresponsive. Shah 

was struggling to speak with police. He told the 

police they had been robbed by two black males, one 

wearing a green jacket.

When paramedics arrived, they found a large wound 

in the middle of Richmond’s back. Richmond had no 

carotid pulse. The paramedics determined Shah’s life 

was in danger. A hospital surgeon later found two 
4

wounds in Shah’s left thigh, two more wounds in Shah’s 

back, and a wound in Shah’s right forearm.

A high-velocity weapon caused Shah’s thigh 

injury. Doctors removed two .44–caliber bullet jacket 

fragments from his forearm during surgery. A .44–

caliber bullet jacket was also found in Richmond’s 

left lung. Police located a .44–caliber bullet core 

in the motel carpet beneath Richmond’s chest wound. 

Police also found a .44–caliber bullet jacket and a 

large fragment from a .44–caliber bullet jacket at the 

scene. Both had been fired from the same weapon used 

to shoot Richmond. Other pieces of metal found at the 

scene were also consistent with .44–caliber

ammunition.

Richmond had an entrance wound in his back and an 

exit wound in his chest. His chest was against a hard 

surface when he was shot. The evidence showed 

Richmond was likely shot from a distance of no more 

than three feet.

Officers found Richmond’s wallet at the scene 

next to his body. The wallet contained no money. The 

cash register drawer and a plastic change drawer next 

to the register also contained no money. 

Approximately $300.00 was stolen from the motel during 

the robbery.

State v. Fowler, 548 S.E.2d 684, 689-90 (N.C. 2001).

At trial, Jimmy Guzman, the owner of the restaurant 

adjoining the motel lobby, testified that he heard gunshots 

around 11:00 p.m. in the lobby of the motel. He looked through 

the glass door of the restaurant and saw one of the robbers 

standing behind the check-in counter. Guzman observed the man 

for approximately five seconds before running to call the 

police. According to Guzman, “the man was black, in his late 

twenties, and approximately six feet tall.” Id. at 690. He 

“had a pointed nose and hair on his face but not a full beard” 
5

and “was wearing a green toboggan and a camouflage army jacket.” 

Id.1 Over Fowler’s objection, Guzman identified Fowler in court 

as the man he saw behind the counter that night.

In addition to Guzman’s in—court identification of Fowler, 

the prosecution presented the testimony of several witnesses to 

whom Fowler had made incriminating statements. Jermale Jones 

testified that Fowler told him on Thanksgiving 1995 that he 

planned to rob a Howard Johnson’s motel. In March 1996, Fowler 

additionally admitted to Jones “that he entered the Howard 

Johnson’s with a handgun to attempt a robbery and that when the 

people working at the motel made him ask twice for the money, 

[he] shot them [with] ‘a big old .44.’” Id. at 691. Leo 

McIntyre testified that he went to the Sugar Shack, a local 

nightclub, on December 31, 1995, and spoke with Fowler. Fowler, 

who was dressed in army fatigues, told McIntyre “that he shot 

two people during a robbery at a Howard Johnson’s” motel. Id. 

Later in the week, Fowler also told McIntyre “that, although he 

thought he had killed both people at the robbery, one of them 

 1 Bharat Shah survived the shooting and also described the 

events to the investigating officers. However, Shah told the 

officers “that he did not get a good look at the shooter because 

he was primarily focused on the man taking the money” and that 

“he probably could not recognize the suspects.” State v. 

Fowler, 548 S.E.2d 684, 691 (N.C. 2001). Shah moved to India 

after he recovered from his wounds and, despite assurances that 

he would be given police protection, refused to return for the 

trial. See id.
6

had lived.” Id. Fowler also told McIntyre “that he only got 

two or three hundred dollars” from the robbery. Id. Waymon 

Fleming was living with Fowler at the time of the robbery. He 

testified that Fowler admitted robbing the motel and shooting 

the “people who would not open the safe.” Id. When Fowler told 

Fleming that he was going to flee the state, Fleming notified 

the authorities and Fowler was apprehended.

In addition to the above evidence, Edward Adams testified 

that he was with Fowler at an apartment on the night of the 

robbery. He testified that Fowler left the apartment “between 

9:00 and 10:00 p.m. with two other men and returned between 

midnight and 1:00 a.m.” Id. Fowler then left to go to the 

Sugar Shack. Adams testified that he purchased a .44-caliber 

revolver from Fowler the following evening. Later, in April 

1996, Fowler “asked Adams where the gun was located, and Adams 

told him the gun had been destroyed. [Fowler] responded, ‘I’m 

glad,’ and asked Adams not to tell people about the gun.” Id. 

Fowler also told Adams that the prosecutor did not know who 

purchased the gun. See id. Shenitra Johnson told officers that 

Fowler arrived at her home shortly after 11:30 p.m. on December 

31, 1995, and left between 12:30 and 1:00 a.m., and that Fowler 

had a .44-caliber gun, which he later sold. At trial, however, 

Johnson testified that Fowler was at her home from 10:30 p.m. on 

December 31, 1995, until 1:15 or 1:30 a.m. the next morning, and 
7

denied seeing Fowler sell or attempt to sell a handgun at her 

apartment. See id. at 692.

B.

In November 1997, Fowler was convicted by the jury of all 

charges. He was thereafter sentenced to death. On appeal to 

the North Carolina Supreme Court, Fowler argued that his 

convictions should be overturned because Guzman’s in-court 

identification deprived him of his right to due process. The 

North Carolina Supreme Court affirmed, see id. at 704, and the 

United States Supreme Court denied certiorari, see Fowler v. 

North Carolina, 535 U.S. 939 (2002). Fowler’s motion for state 

postconviction relief, which added a related claim that Fowler’s 

trial counsel was constitutionally ineffective in the handling 

of Guzman’s identification, was also denied, see State v. 

Fowler, 668 S.E.2d 343 (N.C. 2008), and the United States 

Supreme Court again denied certiorari, see Fowler v. North 

Carolina, 129 S. Ct. 2392 (2009).

Fowler thereafter filed this petition for federal habeas 

relief pursuant to 28 U.S.C. § 2254, raising sixteen separate 

claims. The district court denied the petition and declined to 

issue a certificate of appealability. At Fowler’s request, we 

granted a certificate of appealability to consider Fowler’s 

claim that the state court’s adjudication of his in-court 
8

identification claim was contrary to, or an unreasonable 

application of, Supreme Court precedent.2 We now affirm.

II.

A.

We begin with the clearly established constitutional 

principles applicable to in-court eyewitness identifications. 

The United States Supreme Court has set forth a two-part 

approach to determine whether an eyewitness identification must 

be suppressed because it has been tainted by police procedures 

or conduct. See Perry v. New Hampshire, 132 S. Ct. 716, 724 

(2012). First, the court considers whether the identification 

procedure employed by the police was “both suggestive and 

unnecessary.” Id. Second, the court must “assess, on a caseby-case basis, whether improper police conduct created a 

substantial likelihood of misidentification.” Id. (internal 

quotation marks omitted). That is, the court must determine 

“whether under the totality of the circumstances the 

identification was reliable even though the confrontation 

procedure was suggestive.” Neil v. Biggers, 409 U.S. 188, 199 

(1972) (internal quotation marks omitted).

 2 In his federal habeas petition, Fowler also reasserted his 

claim that his trial counsel was constitutionally ineffective in 

the handling of his in-court identification claim. Fowler did 

not seek a certificate of appealability on this issue.
9

When considering the question of whether the identification 

was reliable under the second prong, the Supreme Court has also 

identified five factors for consideration. They include: (1) 

“the opportunity of the witness to view the criminal at the time 

of the crime”; (2) “the witness’ degree of attention”; (3) “the 

accuracy of the witness’ prior description of the criminal”; (4) 

“the level of certainty demonstrated by the witness at the 

confrontation”; and (5) “the length of time between the crime 

and the confrontation.” Biggers, 409 U.S. at 199-200. These 

factors are weighed against “the corrupting effect of the 

suggestive identification itself.” Manson v. Brathwaite, 432 

U.S. 98, 114 (1977).

Thus, “[e]ven when the police use such a procedure . . ., 

suppression of the resulting identification is not the 

inevitable consequence.” Perry, 132 S. Ct. at 724. The 

eyewitness identification need be suppressed only if the 

procedures used to obtain the identification were “‘so 

unnecessarily suggestive and conducive to irreparable mistaken 

identification that [the defendant] was denied due process of 

law.’” Biggers, 409 U.S. at 196 (quoting Stovall v. Denno, 388 

U.S. 293, 302 (1967).

Moreover, the exclusion of such evidence is the exception 

to the rule that favors the admissibility of eyewitness 

identification for the jury’s consideration. Ordinarily, “[t]he 
10

Constitution . . . protects a defendant against a conviction 

based on evidence of questionable reliability, not by 

prohibiting introduction of the evidence, but by affording the 

defendant means to persuade the jury that the evidence should be 

discounted as unworthy of credit.” Perry, 132 S. Ct. at 723; 

see also Harker v. Maryland, 800 F.2d 437, 443 (4th Cir. 1986) 

(noting that the exclusion of identification evidence is “a 

drastic sanction . . . that is limited to identification 

testimony which is manifestly suspect”). In the absence of “a 

very substantial likelihood of irreparable misidentification, . 

. . such evidence is for the jury to weigh.” Brathwaite, 432 

U.S. at 116 (internal quotation marks omitted). Courts should 

be “content to rely upon the good sense and judgment of American 

juries, for evidence with some element of untrustworthiness is 

customary grist for the jury mill. Juries are not so 

susceptible that they cannot measure intelligently the weight of 

identification testimony that has some questionable feature.” 

Id.

B.

Prior to trial, Fowler moved to suppress Guzman’s expected 

in-court identification of him from the Howard Johnson’s motel, 

asserting that any such identification by Guzman would be the 

product of impermissibly suggestive, photographic arrays 
11

presented to Guzman in the immediate aftermath of the robbery 

and murder.3

The first photographic array occurred on January 8, 1996. 

Guzman was presented with a six-person photographic array that 

included a photograph of Fowler that had been taken in November 

1995. In the photograph, Fowler had a full head of hair, a full 

beard, and a mustache. As noted above, however, Guzman’s 

initial description of the robber was of a man with a toboggan 

cap, some hair on his face, but not a full beard. Guzman 

declined to identify any of the photographs as resembling the 

man he saw in the motel lobby.4

On January 14, 1996, police officers presented Guzman with 

another six-person photographic array that included Fowler and 

five additional photographs that had been selected as similar by 

a computer program. This array, however, contained an arrest 

photograph of Fowler that had been taken just two days earlier, 

on January 12, 1996. In this photograph, Fowler had a shaved 

head and light facial-hair stubble. Although Guzman would not 

positively identify any of the photographs as being of the man 

 3 Although Fowler initially moved to suppress both the pretrial photographic arrays and the in-court identification, he 

later withdrew the motion to suppress the arrays.

4 On January 11, 1996, the police released the November 1995 

photograph of Fowler to the media. However, Guzman testified 

that he did not see the media coverage.
12

he saw on the night of the robbery, he selected Fowler’s 

photograph as the one that “most closely resembled” the man. 

J.A. 138.

On April 3, 1996, the police presented Guzman with another 

photographic array, which contained the photograph of a man whom 

police believed to be an accomplice of Fowler in an earlier 

crime but which did not include a photograph of Fowler. At the 

time, police had not yet identified the second robber and the 

purpose of this array was to see if Guzman recognized the 

suspected accomplice. Again, Guzman would not positively 

identify any of the men, but he chose two photographs that he 

said most closely resembled the man he saw that night.5

Just prior to the evidentiary hearing on Fowler’s motion to 

suppress, the prosecutor met with Guzman, who had been 

subpoenaed to testify. During the meeting, Guzman was told that 

Fowler would be seated between his attorneys at the defense 

table during the hearing. At the hearing, Guzman confidently 

identified Fowler -- who was dressed in an orange, jail jumpsuit 

and seated between defense counsel -- as the man Guzman observed 

 5 Although not raised in connection with his motion to 

suppress before the trial court, there was evidence presented at 

the state MAR proceeding that Guzman was presented with two 

additional arrays early on in the investigation that also did 

not include Fowler. In one, Guzman declined to identify anyone. 

In the other, he selected a photograph of Cullen Marshall, who 

would later become Fowler’s co-defendant, as resembling one of 

the robbers.
13

in the motel lobby. Guzman testified that his identification 

was based on his having seen Fowler on the night of the robbery 

and not on his having seen any photograph of Fowler in the 

interim. Moreover, when Guzman was presented with the January 

12, 1996, array at the suppression hearing, he was unable to 

identify the photograph that he had earlier selected as the one 

that most closely resembled the man he saw that night.

At the conclusion of the hearing on the motion to suppress, 

the trial court made detailed findings of fact regarding 

Fowler’s challenge to Guzman’s identification. Of particular 

note, the trial court found as follows: 

Mr. Guzman was approximately 25 feet from the person 

he observed behind the counter at the time of his 

observations. The lobby was lighted with fluorescent 

lighting, and all the lights in the lobby appeared to 

be turned on. He was able to observe the individual 

from the level of the counter up, which allowed him to 

observe the other part of the body of that person, 

including his face and facial features. Mr. Guzman 

was able to look at the face of the person for 

approximately five seconds and see the face from 

different angles. . . . The individual was not 

wearing a mask or anything covering his face. He was 

wearing a toboggan on his head. Mr. Guzman does not 

wear prescription eyeglasses nor is there any 

indication that he is in need of corrective lenses. 

During the time that he observed the individual behind 

the counter, there was no obstruction of his view of 

the person’s face, there was no distraction of his 

attention from the individual, and he was able to 

focus his attention on the person.

J.A. 191-92. The trial court also addressed Fowler’s claim that 

the prosecutor’s pre-hearing statement to Guzman about Fowler’s 
14

expected location in the courtroom compounded the impermissibly 

suggestive procedure:

Prior to his testimony in Court, Mr. Guzman met with 

the prosecutors concerning his testimony and was 

informed that the Defendant would be present in Court 

and would be seated between his attorneys at the

defense counsel table. Mr. Guzman indicated his 

identification of the Defendant in open Court [was] 

based upon his recollection [of] the appearance on the 

Defendant as being the person behind the counter at 

Howard Johnson’s Motel on December 31st, 1995 and not 

based upon any suggestion or inference in conferences 

with the police officers or with prosecuting 

attorneys. Mr. Guzman also indicated that he was 

confident that the Defendant was the person he had 

seen in Howard Johnson’s on December 31st, 1995.

J.A. 192-93. The trial court concluded that the pretrial 

identification procedures relating to the photographic arrays 

were not impermissibly suggestive and, even if they were, “[t]he 

identification of [Fowler] by James Guzman . . . is not 

inherently incredible, given all the circumstances of the 

witness’s ability to view the accused at the time of the crime. 

The credibility of the identification evidence is for the jury 

to weigh.” J.A. 197.

On direct appeal, the North Carolina Supreme Court rejected 

Fowler’s challenge to the trial court’s denial of his motion to 

suppress. In pertinent part, the North Carolina Supreme Court 

held as follows:

In the present case, the trial court made 

extensive findings concerning the photographic arrays 

shown to Guzman and concluded that Guzman’s in-court 

identification was based on his independent 
15

recollection of defendant from the night of the 

crimes. . . . There is ample evidence in the present 

record to support the trial court’s findings. Guzman 

testified he was confident that defendant was the man 

he saw in the motel lobby on 31 December 1995. Guzman 

stated that his identification was based on his memory 

of seeing defendant in person in the motel lobby on 

the night of the shootings and not on seeing 

photographs of defendant. Moreover, the record 

reveals prosecutors told Guzman when they met with him 

before the pretrial hearing that he should tell the 

truth if he did not recognize defendant.

This evidence is sufficient to support the trial 

court’s findings, which in turn support its ultimate 

legal conclusion that Guzman’s identification was not 

the result of an impermissibly suggestive procedure.

Fowler, 548 S.E.2d at 698. The court also rejected Fowler’s 

argument “that the cumulative effect of viewing photographic 

arrays and meeting with prosecutors caused Guzman’s in-court 

identification to be a violation of defendant’s due process 

rights,” id., observing that:

[n]othing in the trial court’s findings or in the 

evidence suggests that the prosecutors encouraged 

Guzman to make a false identification. The meeting 

between prosecutors and Guzman appears to have been 

nothing more than an opportunity to go over what would 

happen in court. The prosecutors did not provide 

Guzman with any information that would not have been 

readily apparent to him during the proceedings. Thus, 

although prosecutors should avoid instructing the 

witness as to defendant’s location in the courtroom, 

there is nonetheless insufficient evidence to support 

defendant’s contention that prosecutors rigged 

Guzman’s identification. Accordingly, although Guzman 

never explicitly testified that his meeting with 

prosecutors did not affect his in-court 

identification, the evidence in the record supports 

the trial court’s conclusion that Guzman’s 

identification was not a result of prosecutorial 

suggestion.
16

Id. In sum, the court held that the procedures leading up to 

Guzman’s in-court identification were not unnecessarily 

suggestive and that, even if they were, they did not create a 

substantial likelihood of irreparable misidentification. See

id. at 698-99. In addition, the court held that any violation 

of Fowler’s due process rights “was harmless beyond a reasonable 

doubt” in light of the other evidence of Fowler’s guilt. Id. at 

699.

III.

A.

Because the North Carolina state courts adjudicated 

Fowler’s constitutional claim on the merits, we may grant habeas 

relief under 28 U.S.C. § 2254 only if that adjudication (1) “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. § 2254(d)(1), or (2) “was based on 

an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding,” 28 U.S.C. § 

2254(d)(2).

As the United States Supreme Court has increasingly 

cautioned, this review of state court decisions on federal 

constitutional claims is a highly constrained one. We are not 

at liberty to substitute our judgment for that of the state 

court on matters of federal constitutional law, even if we 
17

believe the state court decision was incorrect. “The question . 

. . is not whether a federal court believes the state court’s 

determination was incorrect but whether that determination was 

unreasonable – a substantially higher threshold.” Schriro v. 

Landrigan, 550 U.S. 465, 473 (2007) (emphasis added). A state 

court decision is unreasonable “only if it is so erroneous that 

‘there is no possibility fairminded jurists could disagree that 

the state court’s decision conflicts with th[e] [Supreme] 

Court’s precedents.’” Nevada v. Jackson, 133 S. Ct. 1990, 1992 

(2013) (per curiam) (quoting Harrington v. Richter, 131 S. Ct. 

770, 786 (2011)). Furthermore, our deference is not limited to 

the state court’s interpretation and application of Supreme 

Court precedents. When we review a state court’s decision, we 

must also presume the correctness of the state court’s factual 

findings, unless rebutted by clear and convincing evidence. See

28 U.S.C. § 2254(e)(1).

B.

1.

The district court held that the North Carolina Supreme 

Court reasonably applied the clearly established Supreme Court 

precedents in determining that the pre-trial identification 

process in this case was not impermissibly suggestive. We 

agree.
18

Law enforcement presented two photographic arrays to Guzman 

that included Fowler’s photograph. Fowler does not argue that 

the photographic arrays, as individually composed, were unduly 

suggestive. Rather, Fowler complains only that the pre-trial 

procedures were unduly suggestive because he appeared in both 

arrays and because Guzman was told that Fowler would be seated 

between his counsel prior to the suppression hearing. However, 

while a photograph of Fowler appeared in both arrays, the same 

photograph did not appear in both, and it is undisputed that 

Fowler’s appearance in the January 8 array was quite different 

from his appearance in the January 14 array and from the 

description provided by Guzman to the authorities in the 

immediate aftermath of the crime. Moreover, although Guzman 

selected the photograph of Fowler from the April 14 array as the 

one most closely resembling the man he saw, he would not 

positively identify anyone as being the man he saw on the night 

of the robbery and he was unable to select the same photograph 

at the suppression hearing.

Nor are we persuaded by Guzman’s claim that the state court 

unreasonably concluded that the prosecutor’s pre-hearing meeting 

with Guzman was not so suggestive - singularly or in combination 

with the photographic arrays – as to violate Fowler’s due 

process rights, or by his argument that the state court 

erroneously imposed upon him a burden of proving that the 
19

prosecutors were driven by improper motives. There is nothing 

in the record that calls into question the state court’s 

reasonable determination that the meeting between the 

prosecutors and Guzman was simply “an opportunity to go over 

what would happen in court,” and that the challenged statement 

only provided Guzman with information that would “have been 

readily apparent to him during the proceedings.” Fowler, 548 

S.E.2d at 698; cf. United States v. Murray, 65 F.3d 1161, 1169 

(4th Cir. 1995) (noting that a witness’s prior knowledge of a 

defendant’s location at counsel table in a courtroom proceeding 

was not per se impermissibly suggestive). In the course of 

concluding that “the evidence in the record supports the trial 

court’s conclusion that Guzman’s identification was not a result 

of prosecutorial suggestion,” even in combination with the 

photographic arrays, the state court also appropriately observed 

that there was nothing in the record to “suggest[] that the 

prosecutors encouraged Guzman to make a false identification” or 

otherwise “rigged Guzman’s identification.” Fowler, 548 S.E.2d 

at 698. And, as the state court pointed out, although the 

prosecutors told Guzman where Fowler would be seated in the 

courtroom, they also told Guzman “that he should tell the truth 

if he did not recognize defendant.” Id.
20

2.

As both the state court and district court correctly noted, 

the absence of an unduly suggestive procedure renders it 

unnecessary for us to go further. Nevertheless, even assuming 

arguendo that the actions of the police and prosecutor were 

unduly suggestive, we cannot say that the state court 

unreasonably concluded that Guzman’s identification of Fowler 

was reliable under the totality of the circumstances.

Guzman observed the accused through a glass door from a 

distance of 25 feet in fluorescent lighting for approximately 

five seconds. The accused wore no mask and nothing obstructed 

Guzman’s view of him. Guzman was able to and did observe his 

facial features from different angles, including when the 

accused looked in Guzman’s direction, and nothing distracted his 

view away from the man during the time that he observed him. In 

addition, Guzman was aware of a previous robbery that had 

occurred at the motel and, therefore, was immediately alert to 

the possibility that a robbery might be in progress. 

Furthermore, Guzman provided a detailed description of the 

accused immediately after the event, including a description of 

his facial features and of the clothing he was wearing, which 

turned out to match descriptions given by other witnesses who 

saw Fowler on the night of the crime.
21

We additionally note that Guzman was consistently hesitant 

to conclusively identify a suspect from any of the photographic 

arrays shown to him, whether or not they included a photograph 

of Fowler. Instead, he did exactly what was asked of him. He 

picked photographs only when he felt that they resembled the 

person he saw that night and refused to conclusively identify 

the culprit until he was sure. When given the first opportunity 

to observe Fowler in person in October 2007, Guzman, having been 

told that he should only identify Fowler if he was sure, was 

confident that Fowler was the person he saw in the lobby of the 

Howard Johnson’s that night. Guzman further testified that his 

identification was based on seeing Fowler in the lobby that 

night and not on his having seen any photograph of Fowler. In 

sum, it was not unreasonable for the state court to find that 

Guzman based his identification on his observations on the night 

of the robbery and not on his prior viewing of photographs of 

Fowler or his knowledge of where Fowler would be located in the 

courtroom. To the extent that Guzman’s identifications were 

subject to question, the state court reasonably held it was a 

matter for the jury to consider and weigh and not a basis for 

excluding the evidence altogether.

3.

Finally, the North Carolina Supreme Court additionally held 

that, even assuming that error occurred, any due process 
22

violation “was harmless beyond a reasonable doubt,” in light of 

the other evidence at trial. Fowler, 548 S.E.2d at 699. 

Specifically, the court observed that: 

Guzman’s in-court identification was by no means the 

only evidence pointing to defendant’s guilt. At 

trial, three witnesses testified that defendant 

admitted entering the Howard Johnson’s to attempt a 

robbery and that he shot two people. One witness 

testified that defendant told him he had only gotten 

two or three hundred dollars from the robbery and that 

he was broke because he had paid for his friends to 

get into the Sugar Shack. Another person testified 

that defendant sold him a .44–caliber revolver on the 

evening of 1 January 1996, the day after the murders.

Id. On federal habeas, Fowler argues that he was prejudiced by 

the admission of Guzman’s identification because the only other 

“evidence linking Fowler to the crime was the testimony of four 

informants, all of whom approached the State with supposed 

information about Fowler’s case in the hopes of receiving 

favorable deals and sentencing reductions for their own criminal 

activity.” Brief of Appellant at 33. 

On direct review, “[a] constitutional error is harmless 

when it appears beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained.” 

Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003) (per curiam) 

(internal quotation marks omitted); see also Chapman v. 

California, 386 U.S. 18, 24 (1967). On federal habeas review, 

however, we apply the more onerous, harmless error analysis set 

forth in Brecht v. Abrahamson, 507 U.S. 619, 631 (1993). “Under 
23

that standard, an error is harmless unless it had a substantial 

and injurious effect or influence in determining the jury’s 

verdict.” Fry v. Pliler, 551 U.S. 112, 116 (2007) (internal 

quotation marks omitted). We “assess the prejudicial impact of 

constitutional error in a state-court criminal trial under the 

‘substantial and injurious effect’ standard set forth in Brecht

. . . whether or not the state appellate court recognized the 

error and reviewed it for harmlessness under the [Chapman] 

standard.” Fry, 551 U.S. at 121-22 (noting that “it certainly 

makes no sense to require formal application of both tests 

(AEDPA/Chapman and Brecht) when the latter obviously subsumes 

the former”). And “where an error is harmful under Brecht, any 

state court decision declaring it harmless must have 

unreasonably applied Chapman. As a result, any error satisfying 

Brecht will also satisfy AEDPA’s deference requirements.” 

Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011). 

“Federal habeas courts must always review constitutional errors 

in state trials under Brecht, but they need not debate whether a 

state court’s harmless error determination also unreasonably 

applied Chapman.” Id.

Applying the Brecht standard, we conclude that the 

admission of Guzman’s in-court identification, even if error, 

was harmless. As the state court observed, there was abundant 

other evidence presented on the issue of Fowler’s guilt, 
24

including the testimony of several acquaintances that Fowler 

admitted that he committed the crime and provided details about 

the shootings and the murder weapon that were corroborated by 

the witnesses and forensic evidence from the motel that night.

4.

For the foregoing reasons, we hold that the state court’s 

rejection of Fowler’s due process claim was not contrary to or 

an unreasonable application of the governing Supreme Court 

precedents. In the alternative, we hold that any such error was 

harmless under Brecht.

IV.

We turn now to Fowler’s motion, filed for the first time on 

appeal, which he styles as a Motion for Appointment of Qualified 

and Independent Counsel. Relying upon our decision in Juniper 

v. Davis, 737 F.3d 288 (4th Cir. 2013), and the Supreme Court’s 

decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), Fowler 

asks that that we defer resolution of his habeas appeal, 

designate his current counsel to be “Martinez counsel,” and 

remand this case to the district court to allow counsel to 

investigate whether there are any substantial ineffectiveassistance-of-trial-counsel claims that were not timely 

presented to the North Carolina state court. For the following 

reasons, we deny the motion.
25

A.

1.

Ordinarily, a habeas petitioner is procedurally barred from 

obtaining federal habeas review of a claim if he failed to raise 

and exhaust the claim in state court. See Coleman v. Thompson, 

501 U.S. 722, 750 (1991); Wainwright v. Sykes, 433 U.S. 72, 84-

85 (1977). Under this procedural default doctrine, habeas 

review of the claim will only be permitted if the petitioner can 

demonstrate (1) cause for the default and prejudice resulting 

therefrom or (2) that the failure to consider the claim will 

result in a fundamental miscarriage of justice. See Coleman, 

501 U.S. at 750.

In some circumstances, a defendant may establish cause if 

he was represented by counsel whose performance was 

constitutionally ineffective under the standards established in 

Strickland v. Washington, 466 U.S. 668 (1984). See Coleman, 501 

U.S. at 752; Murray v. Carrier, 477 U.S. 478, 488 (1986). In 

Coleman, however, the Supreme Court held that because “[t]here 

is no constitutional right to an attorney in state postconviction proceedings,” a federal habeas “petitioner cannot 

claim constitutionally ineffective assistance of counsel in such 

proceedings” to establish cause. Coleman, 501 U.S. at 752.
26

In Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012), the 

Supreme Court first announced a “narrow exception” to the 

Coleman rule. Specifically, the Court held that:

Where, under state law, claims of ineffective 

assistance of trial counsel must be raised in an 

initial-review collateral proceeding, a procedural 

default will not bar a federal habeas court from 

hearing a substantial claim of ineffective assistance 

at trial if, in the initial-review collateral 

proceeding, there was no counsel or counsel in that 

proceeding was [constitutionally] ineffective.

Id. at 1320 (emphasis added). This limited qualification of the 

Coleman rule was based on the fact that when an “initial-review 

collateral proceeding is the first designated proceeding for a 

prisoner to raise a claim of ineffective assistance at trial, 

the collateral proceeding is in many ways the equivalent of a 

prisoner’s direct appeal as to the ineffective-assistance 

claim.” Id. at 1317. Thus,

[W]hen a State requires a prisoner to raise an 

ineffective-assistance-of-trial-counsel claim in a 

collateral proceeding, a prisoner may establish cause 

for a default of an ineffective-assistance claim . . . 

where appointed counsel in the initial-review 

collateral proceeding, where the claim should have 

been raised, was ineffective under the standards of 

Strickland v. Washington, 466 U.S. 668 (1984).

Id. at 1318 (citation omitted). Not long thereafter, the 

Supreme Court held that the Martinez exception also applies to 

ineffective-assistance-of-trial-counsel claims that state law 

might, on its face, permit to be brought on direct appeal, if 

the “structure and design” of the state “system in actual 
27

operation . . . make it ‘virtually impossible’” to do so. 

Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013). Where the 

“state procedural framework, by reason of its design and 

operation, makes it highly unlikely in a typical case that a 

defendant will have a meaningful opportunity to raise a claim of 

ineffective assistance of trial counsel on direct appeal, [the] 

holding in Martinez applies.” Id. at 1921.

To summarize, then, Martinez held that a federal habeas 

petitioner who seeks to raise an otherwise procedurally 

defaulted claim of ineffective-assistance-of-trial-counsel 

before the federal court may do so only if: (1) the 

ineffective-assistance-of-trial-counsel claim is a substantial 

one; (2) the “cause” for default “consist[s] of there being no 

counsel or only ineffective counsel during the state collateral 

review proceeding”; (3) “the state collateral review proceeding 

was the initial review proceeding in respect to the ineffectiveassistance-of-trial-counsel claim”; and (4) state law “requires 

that an ineffective-assistance-of-trial-counsel claim be raised 

in an initial-review collateral proceeding.” Trevino, 133 S. 

Ct. at 1918 (internal quotation marks, alterations, and emphasis 

omitted); see also Martinez, 132 S. Ct. at 1318. Trevino held 

that the Martinez exception would also apply in states that have 

procedures which “make[] it highly unlikely in a typical case 

that a defendant will have a meaningful opportunity to raise 
28

[the] claim on direct appeal.” Id. at 1921. Absent these 

“limited circumstances,” “[t]he rule of Coleman [continues] to 

govern[].” Martinez, 132 S. Ct. at 1320. The Martinez

exception “does not concern attorney errors in other kinds of 

proceedings, including appeals from initial-review collateral 

proceedings, second or successive collateral proceedings, and 

petitions for discretionary review in a State’s appellate 

courts. It does not extend to attorney errors in any proceeding 

beyond the first occasion the State allows a prisoner to raise a 

claim of ineffective assistance at trial, even though that 

initial-review collateral proceeding may be deficient for other 

reasons.” Id. (emphasis added) (citations omitted).

2.

In Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), we held 

that a habeas petitioner, who has been sentenced to death and 

appointed counsel pursuant to 18 U.S.C. § 3599(a)(2) to pursue 

federal postconviction relief, is entitled to the appointment of 

qualified, independent legal counsel for the purpose of 

investigating whether he has any Martinez-based claims if his § 

3599 counsel also represented him in the state postconviction 

proceedings.6

 6 Pursuant to 18 U.S.C. § 3599, “[i]n any post conviction 

proceeding under section 2254 or 2255 of title 28, United States 

Code, seeking to vacate or set aside a death sentence, any 

(Continued)
29

In Virginia, where Juniper was convicted, state prisoners 

cannot raise ineffective-assistance-of-trial-counsel claims on 

direct appeal and, therefore, the state fell plainly within the 

Martinez exception. See Johnson v. Commonwealth, 529 S.E.2d 

769, 781 (Va. 2000). Upon the filing of the petition for 

federal habeas relief, the district court appointed Juniper’s 

state postconviction counsel to continue representation of him 

in the federal habeas proceedings. However, when the Supreme 

Court issued its decision in Martinez, Juniper moved to have new 

counsel appointed under § 3599, in addition to his existing 

counsel, for the purpose of investigating and presenting any 

substantial, ineffective-assistance-of-trial-counsel claims that 

had been procedurally defaulted in state court. In particular, 

Juniper argued that he was entitled to such new counsel because 

his existing counsel would otherwise be required to investigate 

his own ineffectiveness in the state court proceedings. The 

district court denied the motion, but granted a certificate of 

appealability.

On appeal, we held that “if a federal habeas petitioner is 

represented by the same counsel as in state habeas proceedings, 

 

defendant who is or becomes financially unable to obtain 

adequate [legal] representation . . . shall be entitled to the 

appointment of one or more attorneys” meeting the practice 

qualifications set forth in subsections (b) through (d). 
30

and the petitioner requests independent counsel in order to 

investigate and pursue claims under Martinez in a state where 

the petitioner may only raise ineffective assistance claims in 

an ‘initial-review collateral proceeding,’ qualified and 

independent counsel is ethically required.” Juniper, 737 F.3d 

at 290 (emphasis in original). This is because “‘a clear 

conflict of interest exists in requiring [petitioner’s] counsel 

to identify and investigate potential errors that they 

themselves may have made in failing to uncover ineffectiveness 

of trial counsel while they represented [petitioner] in his 

state post-conviction proceedings.” Id. at 289-90 (quoting Gray

v. Pearson, 526 Fed. Appx. 331, 334 (4th Cir. 2013)); see also

id. at 290 (noting that it would be “ethically untenable to 

require counsel to assert claims of his or her own 

ineffectiveness in the state habeas proceedings in order to 

adequately present defaulted ineffective-assistance-of-trialcounsel claims under Martinez in the federal habeas 

proceedings”). 

We further held that, while Martinez requires that any such 

claim be ultimately deemed substantial, the “district court must 

grant the motion for appointment of counsel” for purposes of 

investigation “without regard to whether the underlying motion 

identifies a ‘substantial’ ineffective assistance claim under 

Martinez.” Id.
31

B.

The state of North Carolina argues that the Martinez

exception does not apply in North Carolina because its laws and 

procedures neither prohibit nor make it “virtually impossible” 

for a defendant to raise an ineffective–assistance-of-trialcounsel claim on direct appeal. Fowler, on the other hand, 

argues that Martinez does apply in North Carolina because, as in 

Trevino, defendants are ordinarily required to raise claims of 

ineffective assistance of trial counsel in a motion for 

appropriate relief. We disagree with both assertions.

Under North Carolina law, “a motion for appropriate relief, 

including motions filed in capital cases,” must be denied if 

“[u]pon a previous appeal the defendant was in a position to 

adequately raise the ground or issue underlying the . . . motion 

but did not do so.” N.C.G.S. § 15A-1419(a)(3), (b). However, 

the statute “is not a general rule that any 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.” McCarver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000).

Ineffective-assistance-of-trial-counsel “claims brought on 

direct review will be decided on the merits when the cold record 

reveals that no further investigation is required, i.e., claims 

that may be developed and argued without such ancillary 
32

procedures as the appointment of investigators or an evidentiary 

hearing.” State v. Fair, 557 S.E.2d 500, 524 (N.C. 2001). 

Otherwise, the claims “should be considered through motions for 

appropriate relief and not on direct appeal.” State v. Stroud, 

557 S.E.2d 544, 547 (N.C. Ct. App. 2001). “Thus, while in some 

situations a defendant may be required to raise an [ineffectiveassistance-of-trial-counsel] claim on direct appeal, a defendant 

will not be required to do so in all situations.” State v. 

Long, 557 S.E.2d 89, 93 (N.C. 2001). Accordingly, “to avoid

procedural default under N.C.G.S. § 15A-1419(a)(3), defendants 

should necessarily raise those [ineffective-assistance-of-trialcounsel] claims on direct appeal that are apparent from the 

record.” Fair, 557 S.E.2d at 525 (“commend[ing]” counsel “for 

properly raising [five] claims [of ineffective assistance of 

counsel] on direct appeal”). “[S]hould the reviewing court 

determine that [ineffective-assistance-of-trial-counsel] claims 

have been prematurely asserted on direct appeal, it shall 

dismiss those claims without prejudice to the defendant’s right 

to reassert them during a subsequent MAR proceeding.” Id. 

In sum, North Carolina does not fall neatly within Martinez

or Trevino. Ineffective-assistance-of-trial-counsel claims that 

are apparent from the record must be brought by the prisoner on 

direct appeal and, as to those claims, “the state collateral 

review proceeding [is not] the initial review proceeding in 
33

respect to the . . . claim.” Trevino, 133 S. Ct at 1918 

(internal quotation marks omitted). Accordingly, they are 

subject to procedural default under N.C.G.S. § 15A-1419, and the 

Martinez exception to Coleman will provide the prisoner no 

relief on federal habeas. Ineffective-assistance-of-trialcounsel claims that are not so apparent, however, will fall 

within the Martinez exception.

In Juniper and Gray, we held that qualified, independent 

counsel must be appointed in a Martinez state for the purpose of 

determining whether any additional, ineffective-assistance-oftrial-counsel claims exist which were not brought on state 

habeas. Because some claims may fall within the Martinez

exception to Coleman, North Carolina petitioners are therefore 

entitled upon request to the appointment of qualified, 

independent counsel for the purposes of investigating whether 

any such claims exist. However, the federal habeas court will 

still be called upon to determine, on a case-by-case basis, 

whether the particular ineffective-assistance-of-trial-counsel 

claim identified, regardless of its merit, is nonetheless 

procedurally defaulted because it could have been and should 

have been raised on direct appeal.

C.

That said, Fowler is not entitled to the relief he seeks 

before this court. Unlike the petitioners in Juniper and Gray, 
34

Fowler had the benefit of qualified, independent counsel during 

the pendency of his federal habeas petition below who had ample 

opportunity to pursue any Martinez-based arguments on his 

behalf.

During the various stages of Fowler’s trial and collateral 

proceedings, he has had the benefit of at least nine deathpenalty qualified attorneys. At trial, Fowler was represented 

by Kevin Barnett and Harold Bender. On direct appeal, he was 

appointed new counsel, James Glover, to review the trial court 

record and pursue appropriate claims, including ineffectiveassistance-of-counsel claims.

After his conviction and sentence were affirmed and 

certiorari review denied, Fowler was appointed qualified 

postconviction counsel, Zephyr Teachout and Stephen Greenwald, 

to pursue postconviction relief. Fowler’s original Motion for 

Appropriate Relief was filed on November 12, 2002, and amended 

on August 12, 2004. During the pendency of his MAR proceeding, 

however, Fowler’s postconviction counsel were relieved and he 

was appointed a second set of qualified postconviction counsel, 

Faith Bushnaq and Reita Pendry, who also reviewed the matter and 

filed an amendment to the MAR, which included an additional 

ineffective-assistance-of-trial counsel claim.

After relief was denied in state postconviction 

proceedings, Bushnaq and Pendry sought and received an 
35

appointment to represent Fowler in his federal habeas 

proceedings. Pendry filed an affidavit attesting to both her 

and Bushnaq’s qualifications to represent Fowler under § 3599(c) 

and (d). On February 12, 2009, Pendry and Bushnaq filed a 

Petition for Writ of Habeas Corpus. The state filed its 

response in May 2009, and Fowler filed a reply to the response 

in August 2009. 

On October 11, 2011, however, Fowler’s current counsel, 

Shelagh Kenney with the Center for Death Penalty Litigation, 

successfully moved on Fowler’s behalf for an order appointing 

her to replace Pendry. In conjunction with this motion, Kenney 

also represented to the district court that she met the 

qualifications to undertake representation under § 3599(c) and 

(d), and additionally asserted that her entire practice is 

devoted to the representation of indigent defendants who have 

been sentenced to death. The district court also granted, at 

Kenney’s request, “a sixty (60) day abeyance of any rulings” on 

the federal habeas petition, “without prejudice to [Fowler’s] 

requesting additional time, if necessary,” Docket Entry No. 21, 

Fowler v. Branker, No. 3:09-cv-00051 (W.D.N.C. Oct. 19, 2013), 

in order to give newly appointed federal habeas counsel 

“sufficient time to inform herself about Mr. Fowler’s case,” 

Docket Entry No. 20, Fowler v. Branker, No. 3:09-cv-00051 

(W.D.N.C. Oct. 11, 2011). 
36

Martinez, which had been fully briefed and was pending 

argument in the Supreme Court at the time of Kenney’s 

appointment, was decided on March 20, 2012. Moreover, the 

district court did not issue its decision denying Fowler’s 

federal habeas petition until March 27, 2013, a year after the 

decision in Martinez was issued. However, at no time during the 

pendency of her representation did Kenney seek to amend the 

federal habeas petition to assert additional ineffectiveassistance-of-trial-counsel claims, or request a further 

abeyance of the case to allow for any additional investigation 

of any potential new claims.

Thus, although styled as a “Motion for Appointment of 

Qualified and Independent Counsel in Light of Juniper,” it turns 

out that Fowler’s motion, filed before this court for the first 

time, does not seek appointment of new, independent counsel 

pursuant to Juniper at all. Although Fowler was initially

represented in his federal habeas proceedings by his second set 

of state postconviction counsel, he was appointed and had the 

benefit of qualified, independent counsel pursuant to § 3599 for 

a substantial period of time during the pendency of his federal 

habeas petition in the district court. Our holding in Juniper

was limited and explicit:

To be clear, if a federal habeas petitioner is 

represented by the same counsel as in state habeas 

proceedings, and the petitioner requests independent 
37

counsel in order to investigate and pursue claims 

under Martinez in a state where the petitioner may 

only raise ineffective assistance claims in an 

‘initial review collateral proceeding,” qualified and 

independent counsel is ethically required.

Juniper, 737 F.3d at 290 (third emphasis in original). However, 

where, as here, counsel who represents the petitioner in federal 

habeas proceedings “undertook representation after the initialreview collateral proceeding concluded, that counsel cannot be 

found ineffective before or after Martinez. Ethically, this 

means there is no potential conflict of interest in light of 

Martinez because there is no chance that the attorney would have 

to argue his or her own ineffectiveness or forego a potentially 

valid ineffective assistance of counsel claim.” David M. 

Barron, Martinez Casts Doubt on State PostConviction and Federal 

Habeas Representation, 27-Fall Crim. Just. 42 (2012) (emphasis 

added).

Kenney is without doubt well qualified and informed in 

death penalty matters. She represented Fowler for a year and a 

half during the pendency of the district court proceedings, and 

she did not represent Fowler at any stage of the state MAR 

proceedings. Thus, she did not labor under any conflict of 

interest that would have hindered her ability to investigate 

whether there were any Martinez-based ineffective-assistance-oftrial-counsel claims that had not already been ferreted out by 

Fowler’s prior trial and postconviction counsel, or entitled 
38

Fowler to the appointment of new, “conflict-free” counsel under 

§ 3599.7

We are also unpersuaded by Fowler’s half-hearted argument 

that a special designation of “Martinez counsel” and remand for 

further investigation is warranted because the Juniper decision 

was not issued until after Fowler filed his appeal. The 

decisions in both Juniper and Gray addressed a conflict-ofinterest argument that was timely made before the district court 

immediately after the Martinez decision was handed down by the 

Supreme Court, and were based upon its reasoning and holding. 

See e.g. Juniper, 737 F.3d at 289 (“In accordance with Martinez, 

the Gray panel held that the petitioner was entitled to 

independent counsel in his federal habeas proceedings to 

investigate and pursue the ineffectiveness of state habeas 

counsel.”); Gray, 526 Fed. Appx at 332 (“[U]nder the reasoning 

and holding of Martinez, [petitioner] is entitled to counsel who 

could vigorously examine and present if available potential 

claims of ineffective assistance by [his] counsel in his state 

habeas proceedings.”). Juniper’s counsel was qualified, but not 

 7 In Juniper, the petitioner had a second appointed counsel 

who had not represented him in the state postconviction 

proceedings, but this counsel was not qualified under 18 U.S.C. 

§ 3599(c) to represent him independently. Here, in contrast, 

Kenney was qualified and, therefore, “serve[d] as the 

independent counsel called for in” Juniper. Juniper v. Davis, 

737 F.3d 288, 290 n.2 (4th Cir. 2013).
39

independent, and therefore Juniper was in a position to argue 

that his appointed counsel operated under a conflict of interest 

entitling him to new counsel under § 3599. Kenney, in contrast, 

has at all times been independent and conflict-free. Moreover, 

there is no magic to the term “Martinez counsel,” which does not 

appear in Juniper or Gray. The term is but a shorthand 

reference to the qualified, independent counsel that Juniper

held was ethically required under § 3599 in the narrow set of 

circumstances presented. Juniper did not grant a federal habeas 

petitioner and his independent counsel any right, on appeal, to 

return to the district court and conduct additional Martinez

investigations or to otherwise vary our normal rule that 

arguments such as these, including a petitioner’s motion for new 

counsel in light of Martinez, should have been made in the first 

instance to the district court.

In sum, Martinez provided Fowler’s counsel with all the 

authority necessary to request an additional abeyance of the 

district court’s ruling and, if appropriate, to file an amended 

habeas petition. No explanation for this delay has been 

offered. Unlike the petitioners in Juniper and Gray, Fowler did 

not seek appointment of independent, qualified counsel under 

Martinez in the district court. Kenney already met that 

criteria. Nor did Fowler or Kenney, upon her appointment, seek 

additional time to investigate whether there were any additional 
40

ineffective-assistance-of-trial-counsel claims which Martinez

might allow the district court to consider, leaving us with the 

unmistakable impression that there was nothing of substance left 

to investigate. Counsel may or may not have investigated 

whether Fowler’s two sets of qualified, state postconviction 

counsel were constitutionally ineffective in failing to identify 

and present an ineffective-assistance-of-trial-counsel claim. 

But even if such Martinez-based claims existed, they have been 

waived by Fowler’s failure to raise the issue below, and any 

ineffectiveness on Kenney’s part provides Fowler with no relief 

here.

V.

For the foregoing reasons, we affirm the judgment of the 

district court denying Fowler’s petition for habeas relief. We 

also deny Fowler’s motion for appointment of qualified and 

independent counsel under Martinez and Juniper. 

 JUDGMENT AFFIRMED;

MOTION DENIED
41

DAVIS, Senior Circuit Judge, concurring in the judgment in part 

and dissenting in part:

I strongly disagree with the weathered notion that when it 

comes to eyewitness identification evidence, “[c]ourts should be 

‘content to rely upon the good sense and judgment of American 

juries, for evidence with some element of untrustworthiness is 

customary grist for the jury mill,’” and that “‘[j]uries are not 

so susceptible that they cannot measure intelligently the weight 

of identification testimony that has some questionable 

feature.’” See maj. op. at 10 (quoting Manson v. Brathwaite, 432 

U.S. 98, 116 (1977)). The hundreds of exonerations splashed 

across the headlines of popular and legal media over the last 

decade put the lie to the Supreme Court’s outworn hope that 

juries can be counted on routinely to reject unreliable 

eyewitness identification evidence without special guidance from 

courts. See generally Laura Sullivan, Exonerations On The Rise, 

And Not Just Because Of DNA, National Public Radio (Feb. 4,

2014, 3:47 AM) (saved as ECF Opinion Attachment). Nevertheless, 

largely for reasons set forth in the Chief Judge’s thorough 

opinion, I concur in the judgment that Fowler is not entitled to 

relief under 28 U.S.C. § 2254.

As for the motion to appoint counsel pursuant to the 

teachings of Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), I

would remand determination of the issue to the district court 
42

for its examination in the first instance. If the district court 

denied the motion, then Fowler would be free to seek from the 

district court or this Court a certificate of appealability. 

Accordingly, I dissent from the panel’s denial of the motion.