UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-8572

ANTHONY L. MARLAR,

Petitioner - Appellant,

v.

WARDEN, TYGER RIVER CORRECTIONAL INSTITUTION,

Respondent - Appellee.

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. R. Bryan Harwell, District 

Judge. (2:08-cv-01874-RBH)

Argued: March 23, 2011 Decided: May 25, 2011

Before GREGORY, AGEE, and KEENAN, Circuit Judges.

Affirmed by unpublished opinion. Judge Keenan wrote the 

opinion, in which Judge Gregory and Judge Agee joined.

ARGUED: Thomas Edward Vanderbloemen, GALLIVAN, WHITE & BOYD, PA, 

Greenville, South Carolina, for Appellant. Samuel Creighton 

Waters, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, 

Columbia, South Carolina, for Appellee. ON BRIEF: Henry D. 

McMaster, Attorney General, John W. McIntosh, Chief Deputy 

Attorney General, Donald J. Zelenka, Assistant Deputy Attorney 

General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, 

Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

KEENAN, Circuit Judge:

Anthony L. Marlar appeals from the district court’s award 

of summary judgment in favor of the Warden of the Tyger River 

Correctional Institution (the State) on Marlar’s petition for a 

writ of habeas corpus (the petition). The district court did 

not reach the merits of the petition, in which Marlar alleged 

that his trial counsel provided ineffective assistance. 

Instead, the district court concluded that Marlar’s claim was 

not reviewable in a federal habeas corpus petition, because the 

South Carolina Supreme Court had held that Marlar failed to 

preserve this argument for appellate review. See Marlar v. 

Warden, Tyger River Correctional Inst., No. 2:08-cv-1874, 2008 

WL 5111878, at *2 (D.S.C. Dec. 4, 2008) (citing Marlar v. South 

Carolina

Based on our holding in 

, 653 S.E.2d 266, 267 (S.C. 2007)). We issued a 

certificate of appealability to address Marlar’s claim of 

ineffective assistance of counsel.

Bostick v. Stevenson, 589 F.3d 160 

(4th Cir. 2009), issued after the district court dismissed 

Marlar’s petition, we hold that Marlar’s petition alleging 

ineffective assistance of counsel is not procedurally barred, 

and we therefore consider the merits of Marlar’s petition. We 

affirm the district court’s award of summary judgment in favor 

of the State on a different ground than cited by the district 
3

court, namely, that Marlar did not suffer prejudice as a result 

of his trial counsel’s allegedly deficient performance. 

I.

In 1997, Marlar was convicted by a jury in Anderson County, 

South Carolina, of criminal sexual conduct in the first degree 

and burglary in the first degree, based on a burglary and a rape

that occurred in 1993. Marlar received consecutive sentences of 

12 and 30 years, respectively, for those convictions.

The evidence at Marlar’s trial established that in February 

1993, two male individuals (the assailants) entered the victim’s 

residence around 3:30 a.m. Both the assailants wore stockings

over their heads, and the victim was not able to observe the 

faces of either of the two men during the events that followed.

After the assailants entered the victim’s residence, they 

encountered the victim, who was in her bedroom along with one of 

her two young children. The victim testified that the shorter

assailant stated to his taller companion, “Tony, get her out of 

here,” in reference to the victim’s daughter. The taller

assailant then exclaimed, “Oh, shit,” apparently upon realizing 

that his first name was spoken by his accomplice.

Once the child was removed from the bedroom, the two men 

took turns sexually assaulting the victim, with each individual 

engaging in nonconsensual sexual intercourse with the victim 
4

while holding a large knife against her throat. After the 

assailants ceased having intercourse with the victim, the taller 

assailant retrieved a rag from the victim’s bathroom, wet the 

rag, and then “stuck his hand up inside of [the victim’s vagina] 

wiping [her] out and wiping the bed.”

At some point during the course of these events, the 

assailants disconnected the telephone that was located in the 

victim’s kitchen. The assailants did not attempt to disconnect

the only other telephone in the residence, which was located in 

the victim’s bedroom but was inoperable for the purpose of 

placing outgoing calls. Upon leaving the residence, the shorter 

assailant told the victim that they would kill her children if 

she informed anyone about the attack.

After a police investigation, a grand jury in Anderson 

County indicted Marlar and Jerry Fields for their participation 

in the crimes. Both Marlar and Fields initially denied 

committing the crimes, and each stated that the two were 

together in the early morning hours of the events at issue. 

However, after DNA evidence collected from the victim’s person

“matched” a sample of Fields’ DNA, Fields confessed to his 

participation in the crimes and entered a plea of guilty to the 

charges. Fields implicated Marlar as his accomplice, and 

testified against Marlar at his trial.
5

The victim provided testimony at Marlar’s trial, in which 

she stated that she was “a hundred percent sure” that Marlar was 

one of her assailants. The victim stated that she knew Marlar 

before her attack, and had seen him on several previous

occasions because her roommate’s boyfriend was Marlar’s brother. 

The victim testified that Marlar knew from his visits to the 

residence that the telephone in the victim’s bedroom could not 

be used to place outgoing telephone calls.

The victim also testified that one of her assailants wore a 

baseball jacket with red sleeves, which looked like a jacket 

that she had seen Marlar wearing on a previous occasion. 

According to the victim, the assailant wearing the baseball 

jacket had a tall and slim “build,” which the victim stated also 

was a characteristic of Marlar’s “build.” These attributes, in 

addition to the taller assailant being referred to as “Tony” by 

his accomplice, led the victim to identify Marlar as one of the 

assailants when she reported the crime to the police.

Additionally, Fields testified that he and Marlar were the 

victim’s assailants, stating that they had planned the attack on 

the same night that the crimes occurred. Fields further 

testified that he and Marlar each raped the victim two times, 

after which Marlar used a washcloth to “clean” the victim after 

the sexual assault. Fields also corroborated the victim’s 
6

statement that Fields referred to Marlar as “Tony” in front of 

the victim, and that Marlar responded, “Oh, shit.”

The prosecution’s evidence did not include DNA evidence, 

such as evidence derived from blood, semen, or hair, linking

Marlar to the crime. And, as noted above, because the 

assailants wore stockings over their heads, the victim did not 

see the face of either of her assailants. She also was unable 

to identify either of them by their voices on the night of the 

attack.

As provided by South Carolina law, Marlar’s counsel 

received the benefit of making the final closing argument to the 

jury, because he did not present any witnesses or introduce any

evidence during the trial.1

 1 Under South Carolina law, “[i]n a criminal prosecution, 

where a defendant introduces no testimony, he is entitled to the 

final closing argument to the jury.” South Carolina v. Mouzon, 

485 S.E.2d 918, 921 (S.C. 1997).

 Accordingly, Marlar’s counsel did 

not introduce into evidence a report prepared by Agent John 

Barron of the South Carolina State Law Enforcement Division

Forensic Sciences Laboratory (SLED). This report (the Barron 

Report) analyzed two pubic hairs found in a box of evidence 

collected from the crime scene. The box of evidence also 

contained a bedsheet, pillowcases, a bedspread and pillow sham, 

a pair of pants, a black cap, and paper towels.
7

Agent Barron concluded in the Barron Report that the pubic 

hairs originated from an unknown person, and were

“microscopically inconsistent” with those of Marlar, Fields, the 

victim, or the victim’s boyfriend. Additionally, Agent Barron’s 

report did not state whether those pubic hairs originated from a 

male or a female. 

The jury convicted Marlar of burglary and criminal sexual 

conduct. Following his sentencing, Marlar sought relief from 

his convictions in the appellate courts of South Carolina. 

The South Carolina Court of Appeals (Court of Appeals)

initially affirmed Marlar’s conviction on direct appeal. 

Following this decision, Marlar submitted a pro se petition for 

rehearing, citing a statement in the Barron Report that there 

were pubic hairs of unknown origin found in the box of evidence 

collected by investigators at the crime scene. The Court of 

Appeals granted Marlar’s petition for rehearing and recalled its 

prior opinion, but ultimately affirmed the convictions. The 

court held that Marlar had not preserved for direct appeal any 

issues concerning the conclusions in the Barron Report, because 

“no argument relating to hair analysis was presented to the 

[trial] court.”

Marlar thereafter applied for Post-Conviction Relief (PCR) 

in the trial court (the PCR court). Marlar raised several 

issues in his application, including his contention that he was 
8

denied effective assistance of trial counsel because of his 

counsel’s failure to present the hair evidence discussed in the 

Barron Report. The PCR court held a hearing during which the 

court heard testimony from Agent Barron, Marlar, and Marlar’s 

trial counsel.

After the hearing, the PCR court issued an order on October 

1, 2003, in which the court denied Marlar’s application. In its 

order, the PCR court summarily concluded that Marlar’s counsel 

did not render ineffective assistance and, in the alternative, 

that Marlar did not demonstrate any prejudice from his counsel’s 

allegedly deficient performance. The PCR court failed to state

specific findings of fact or express conclusions of law relating 

to each issue presented, as required by S.C. Code § 17-27-80.2

A PCR court’s failure to make specific findings of fact and 

conclusions of law, if not raised by a petitioner in that court,

ordinarily precludes appellate review of a PCR proceeding by the 

state courts of South Carolina. See Pruitt v. South Carolina, 

 

Marlar did not ask the PCR court afterwards to make such 

findings and conclusions, although he was permitted to do so 

under Rule 59(e) of the South Carolina Rules of Civil Procedure. 

 2 This provision of the South Carolina Code states, in 

relevant part, that a court adjudicating an application for 

post-conviction relief “shall make specific findings of fact, 

and state expressly its conclusions of law, relating to each 

issue presented.” S.C. Code § 17-27-80.
9

423 S.E.2d 127, 128 (S.C. 1992) (per curiam).3

The South Carolina Supreme Court (the Court) granted a 

petition for writ of certiorari to review the judgment of the 

Court of Appeals. The Court reversed the Court of Appeals’ 

judgment, thereby reinstating the PCR court’s denial of Marlar’s 

application for post-conviction relief. 653 S.E.2d 266 (S.C. 

2007.) The Court held that any issues concerning the Barron 

Report were not preserved for appeal based on Marlar’s failure 

to file a Rule 59(e) motion. Id. at 267. The Court stated that 

although it had remanded post-conviction applications in certain 

 Nevertheless, 

Marlar appealed the denial of his application for PCR relief to 

the Court of Appeals, which vacated the denial of Marlar’s 

application. The Court of Appeals held that the PCR court’s 

order was inadequate because it did not include specific 

findings of fact and conclusions of law. See Marlar v. South 

Carolina, 644 S.E.2d 769, 771 (S.C. Ct. App.), rev’d 653 S.E.2d 

266 (S.C. 2007). The Court of Appeals declined to hold that 

Marlar’s appeal was foreclosed by his failure to file a motion 

pursuant to Rule 59(e), and concluded that Marlar’s case should 

be remanded to the PCR court. Id. at 771-72.

 3 The Court’s opinion in Pruitt explained that “[e]ven after 

an order [denying post-conviction relief] is filed, counsel has 

an obligation to review the order and file a Rule 59(e) []

motion to alter or amend if the order fails to set forth the 

findings and the reasons for those findings as required by [S.C. 

Code] § 17-27-80.” 423 S.E.2d at 128.
10

cases to a PCR court to make specific findings of fact and 

conclusions of law in the absence of a Rule 59(e) motion, those 

cases presented “unique” circumstances that were not present in 

Marlar’s case. Id.

After his unsuccessful attempts in the South Carolina state 

courts to vacate his convictions, Marlar filed a habeas corpus 

petition in the district court under 28 U.S.C. § 2254. In his 

petition, Marlar alleged that his trial counsel’s failure to 

introduce the Barron Report into evidence constituted 

ineffective assistance of counsel.4

Upon consideration of the State’s motion for summary 

judgment, a magistrate judge issued a report recommending that 

the district court grant the motion. The district court adopted 

the magistrate judge’s report and recommendation, and awarded

judgment in favor of the State, holding that Marlar’s claims of 

ineffective assistance of counsel were procedurally barred due 

to his failure to file a Rule 59(e) motion asking the PCR court

to make specific findings of fact and conclusions of law. 2008 

WL 5111878, at *2. The district court explained that because

Marlar had not preserved this issue for appellate review in the 

state courts of South Carolina, the claim was not cognizable in 

 4 Marlar raised several other issues in his petition for 

habeas corpus, none of which is at issue in this appeal.
11

a petition for habeas corpus filed in federal court.5 Id. at *1 

(citing Fisher v. Angelone

The district court issued its order dismissing Marlar’s

petition before we issued our opinion in Bostick v. Stevenson, 

589 F.3d 160 (4th Cir. 2009). In Bostick, we addressed the 

identical procedural issue presented here, namely, whether the 

failure to file a Rule 59(e) motion in a South Carolina PCR 

proceeding precludes any consideration of habeas corpus relief 

in a federal court. 

, 163 F.3d 835, 844 (4th Cir. 1998)). 

Accordingly, the district court did not reach the merits of 

Marlar’s petition.

We answered this question in the negative in Bostick, 

holding that the failure to file such a motion was not a 

procedural bar because “Rule 59(e) was not consistently applied 

by the South Carolina courts” at the time of Bostick’s PCR 

proceedings in 2004. 589 F.3d at 164. Significantly, our 

decision in Bostick referenced the state appellate proceedings 

in Marlar’s case as an illustration that the South Carolina 

 5 As stated by the district court, “[i]f a petitioner in 

federal court has failed to raise a claim in state court at the 

appropriate juncture, and is precluded by state rules from 

returning to state court to raise the issue, he has procedurally 

bypassed his opportunity for relief in state courts and the 

claim will be considered procedurally defaulted. As a 

consequence, the petitioner will be barred from raising the

issue in his federal habeas petition.” 2008 WL 5111878, at *1 

(citing Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998)).
12

courts “did not distinguish, in any principled way, those cases 

in which it would apply [Rule 59(e)] from those in which it 

would not.” Id. at 165.

Because Marlar filed his appeal from the district court’s 

judgment while the appeal in Bostick was pending, we held 

Marlar’s appeal in abeyance until after we decided Bostick. 

Following our decision in Bostick, we issued a certificate of 

appealability in this case under 28 U.S.C. § 2253(c) to resolve

the issue “whether trial counsel was ineffective for failing to 

call [a] state investigator to testify about potentially 

exculpatory crime scene hair evidence.”

II.

We review de novo a district court’s award of summary 

judgment in a habeas corpus proceeding. Bostick, 589 F.3d at 

163; Frye v. Lee, 235 F.3d 897, 902 (4th Cir. 2000). In cases 

in which a habeas petitioner’s claim has been “adjudicated on 

the merits” by a state court, a federal court may not grant 

relief unless the state court decision 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); see Bostick, 589 F.3d at 163. 

However, when, as in the present case, the state court did not 

reach the merits of the petitioner’s claim and instead ruled on 
13

procedural grounds, we review the petitioner’s claim de novo. 

Bostick, 589 F.3d at 163; Hudson v. Hunt, 235 F.3d 892, 895 (4th 

Cir. 2000).

A.

We first address the issue whether Marlar may raise in his 

federal habeas petition arguments concerning his trial counsel’s 

alleged ineffectiveness, despite Marlar’s failure to file a Rule 

59(e) motion in the PCR court requesting that the court make 

specific findings of fact and express conclusions of law. 

Applying our holding in Bostick

As noted above, we held in 

, we conclude that Marlar may 

pursue his ineffective assistance of counsel claim in federal 

court, even though the South Carolina appellate courts declined 

to reach the merits of his claim.

Bostick that “Rule 59(e) was not 

consistently applied by the [South Carolina] courts” at the time 

of Bostick’s PCR proceedings in 2004. 589 F.3d at 163-64. This 

holding is squarely applicable here because Marlar’s PCR 

proceedings occurred in 2003, just a year before Bostick’s PCR 

proceedings, and thus also took place during the time period in 

which South Carolina courts applied Rule 59(e) in an 

inconsistent manner. Therefore, under Bostick, Marlar’s 
14

ineffective assistance of counsel claim is not procedurally 

barred from appellate review in the federal courts.6

B.

Addressing the merits of his appeal, Marlar argues that his 

trial counsel was ineffective in failing to introduce into 

evidence the Barron Report, or testimony referencing the Barron 

Report’s conclusions, concerning the pubic hairs of unknown 

origin found in the box of evidence collected by investigators 

at the crime scene. According to Marlar, these pubic hairs may 

have come from one of the victim’s “true” assailants. Marlar 

contends that if his trial counsel had developed this 

evidentiary issue, there is a reasonable probability that the 

jury would not have convicted him of the sexual assault and 

burglary charges.

In response, the State argues that Marlar’s counsel 

provided effective representation to Marlar, and that the 

 6 In reaching this conclusion, we also reject the State’s 

argument that Marlar is barred from raising his claim because he 

did not “specifically object on the ground that the Rule 59(e) 

bar was not consistently applied.” We again note that Bostick

had not been decided at the time that Marlar could have raised 

this objection. We decline to hold Marlar, who was proceeding 

pro se at this time, responsible for failing to predict our 

Bostick holding years in advance. Moreover, Marlar cited Rule 

59(e) in a motion objecting to the magistrate judge’s report and 

recommendation. We construe this pleading in the light most 

favorable to Marlar because he was proceeding pro se, see Haines 

v. Kerner, 404 U.S. 519, 520 (1972), and we hold that Marlar 

adequately preserved this argument for our review.
15

decision not to introduce the evidence from the Barron Report 

was a strategic trial decision, which allowed Marlar to preserve 

the right to present the “last argument” during closing 

arguments at his trial. The State also contends that even if 

Marlar’s counsel rendered ineffective assistance in not bringing 

the issue of the unidentified pubic hairs to the jury’s 

attention, Marlar suffered no prejudice because the value of 

that evidence was minimal and overwhelming evidence supported

the jury’s verdict.

In deciding this issue, we apply well-established 

principles of law. A defendant’s right to counsel under the 

Sixth Amendment includes the right to effective assistance of 

counsel. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Roe v. 

Flores-Ortega, 528 U.S. 470, 476-77 (2000); Strickland v. 

Washington, 466 U.S. 668, 685-86 (1984); Rubin v. Gee, 292 F.3d 

396, 401 (4th Cir. 2002). Under this guarantee, a defendant is 

entitled to counsel who is reasonably competent and who gives 

advice that is within the range of competence required of 

attorneys in criminal cases. Wiggins v. Smith, 539 U.S. 510, 

521-23, (2003); Kimmelman v. Morrison, 477 U.S. 365, 384, 

(1986); Strickland, 466 U.S. at 687; Bell v. Evatt

To prevail on a claim of ineffective assistance of counsel, 

a petitioner must ordinarily satisfy both parts of the two-part 

, 72 F.3d 421, 

427 (4th Cir. 1995).
16

test set forth in Strickland. Wiggins, 539 U.S. at 521; 

Williams v. Taylor, 529 U.S. 362, 390 (2000); Strickland, 466 

U.S. at 687; Bell, 72 F.3d at 427. The petitioner first must 

show that “counsel’s representation fell below an objective 

standard of reasonableness.” Strickland, 466 U.S. at 687-88; 

accord Wiggins, 539 U.S. at 521; Williams, 529 U.S. at 390-91; 

Bell, 72 F.3d at 427. In making this determination, the court 

considering the habeas corpus petition “must indulge a strong 

presumption that counsel’s conduct falls within the wide range 

of reasonable professional assistance.” Strickland, 466 U.S. at 

689; accord Kimmelman, 477 U.S. at 381; Darden v. Wainwright, 

477 U.S. 168, 185-86 (1986); Bell

If counsel’s performance is found to have been deficient 

under the first part of the 

, 72 F.3d at 427.

Strickland test, to obtain relief 

the petitioner must also 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.” Strickland, 466 U.S. at 694; accord

Wiggins, 539 U.S. at 534; Williams, 529 U.S. at 390-91; Gray v. 

Branker

A reviewing court, however, is not required to determine 

whether “counsel’s performance was deficient before examining 

the prejudice suffered by the defendant as a result of the 

, 529 F.3d 220, 234 (4th Cir. 2008).
17

alleged deficiencies.” Strickland, 466 U.S. at 697. Therefore, 

the Supreme Court’s decision in Strickland instructs that “[i]f 

it is easier to dispose of an ineffectiveness claim on the 

ground of lack of sufficient prejudice, which we expect will 

often be so, that course should be followed.” Id.; see also

Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007) (following 

Supreme Court’s instruction in Strickland to proceed directly to 

“prejudice” prong if petitioner cannot demonstrate reasonable 

probability that outcome of trial would be different but for 

counsel’s performance); Buckner v. Polk

In addressing Marlar’s claim, as recommended by the Supreme 

Court in 

, 453 F.3d 195, 202 (4th 

Cir. 2006) (same).

Strickland, we move directly to consider the 

“prejudice” prong of the Strickland test. Under this prong, we 

examine the issue whether there is a “reasonable probability” 

that trial counsel’s decision not to place the Barron Report in 

evidence, or otherwise address the conclusions drawn in the 

Barron Report during the trial, “undermine[s] confidence in the 

outcome” of the jury’s verdict of guilty. Strickland, 466 U.S. 

at 694. As directed by the Supreme Court, we make this 

determination by considering the totality of the evidence before 

the trier of fact. See Strickland, 466 U.S. at 695; see also

Kimmelman, 477 U.S. at 381.
18

After reviewing the evidence presented at trial, and the 

evidence concerning the Barron Report offered by Marlar in the 

PCR court and in the proceedings that followed, we conclude that 

Marlar has failed to demonstrate that his defense was prejudiced 

by trial counsel’s failure to present evidence concerning the 

pubic hairs noted in the Barron Report. We reach this 

conclusion because there was extensive evidence at trial 

supporting the jury’s verdict, and the probative value of the 

Barron Report’s conclusions regarding the hair evidence is

limited.

First, there was very strong evidence of Marlar’s guilt 

presented at his trial. As described above, the victim 

testified that she was “a hundred percent sure” that Marlar was 

one of her assailants, even though her assailants used stockings 

to mask their faces. On several occasions prior to the attack, 

the victim had met Marlar, becoming familiar with Marlar’s tall 

and slim “build,” which the victim testified resembled the 

“build” of the assailant who was called “Tony” by his 

accomplice. In addition to confirming Fields’ testimony that he 

referred to his accomplice as “Tony,” the victim testified that 

“Tony” responded, “Oh, shit,” upon hearing his name uttered out 

loud by the other assailant. Further, the victim testified that 

she was familiar with a baseball jacket with red sleeves that 
19

she previously had observed Marlar wearing, which she identified 

as being similar to the jacket worn by “Tony” during the attack.

The manner in which the assailants carried out their attack 

also provided corroborative evidence of Marlar’s guilt. Marlar 

had been at the victim’s residence prior to the attack and, as 

stated by the victim in her testimony, was aware that the 

telephone in the victim’s bedroom could not be used to place 

outgoing calls. It is thus significant that the assailants 

disconnected the telephone in the kitchen, but did not attempt 

to disconnect the telephone in the victim’s bedroom where the 

rape took place.

We also observe that Fields admitted his role in the 

crimes, identified Marlar as his accomplice, and testified that 

he and Marlar agreed to use each other to provide an alibi 

regarding their whereabouts on the morning in question. Fields

also acknowledged that he inadvertently called Marlar by his 

first name, “Tony,” in front of the victim during the attack. 

Additionally, we observe that Detective Jean Sutton of the 

Anderson County Sheriff’s Office, who interviewed Marlar in 

connection with the investigation, testified that Marlar told 

her that he and Fields were together during the time period in 

which the sexual assault took place. This testimony had the 

dual impact of supplying Marlar’s admission that he was with 

Fields during the time period that the crimes occurred, and of 
20

corroborating Fields’ testimony that he and Marlar had agreed to 

use each other to provide an alibi.

In contrast to this very strong evidence of Marlar’s guilt, 

the probative value of the evidence concerning the pubic hairs 

was limited. As stated above, the pubic hairs at issue were

found in a box that also contained pillowcases, a bedspread and 

pillow sham, a bed sheet, a pair of pants, a cap, and paper 

towels. Although the Barron Report excluded Marlar, as well as 

Fields, the victim, and the victim’s boyfriend, as the source of 

the pubic hairs, the Barron Report did not offer any other 

conclusions regarding the identity of the person or persons who 

deposited the pubic hairs. Notably, the Barron Report was not 

probative of the issue whether the hairs originated from a male 

or a female. 

There also was no evidence indicating where or when the 

pubic hairs at issue were deposited on any item or items that 

ultimately were placed in the crime scene evidence box. 

Significantly, those hairs could have been deposited on any of 

the items found in the evidence box. Further, there was no 

evidence concerning who may have owned or worn some of the items 

found in the evidence box, such as the pants and black cap. In 

short, there is no evidence in the record supporting a physical 

or temporal connection between the sexual assault on the victim 

and the pubic hair evidence noted in the Barron Report.
21

Our conclusion is not altered by Marlar’s additional 

argument that the prosecutor misleadingly informed the jury 

during closing arguments that “[t]he defense has been provided 

obviously with everything. You saw this. Every report, every

SLED report has been provided and obviously you saw it. Every 

report, every SLED report, everything.” Marlar has not 

contended in his federal habeas proceedings that his counsel’s 

failure to object to these comments constituted ineffective 

assistance of counsel. Moreover, the prosecutor’s misleading 

remarks do not change the fact that the record fails to connect 

the hair evidence at issue to a male, to any particular item 

collected at the crime scene, or to the time period in which the 

sexual assault occurred.

For these reasons, we conclude that the record does not 

demonstrate that, but for trial counsel’s alleged failures, 

there is a reasonable probability that the result of Marlar’s 

trial would have been different. In sum, the record before us

does not undermine confidence in the outcome of the proceedings. 

See Strickland, 466 U.S. at 694. Because we reach this 

conclusion, we need not address whether the performance of 

Marlar’s trial counsel was deficient. See id. at 697.

Accordingly, we affirm the district court’s judgment dismissing 

Marlar’s petition for a writ of habeas corpus.

AFFIRMED