PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EUGENE TYRONE DECASTRO, 

Petitioner-Appellant,

v.  No. 10-5

GERALD BRANKER, Warden, Central

Prison, Raleigh, North Carolina,

Respondent-Appellee. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Dever III, District Judge.

(5:08-hc-02075-D)

Argued: March 25, 2011

Decided: June 3, 2011

Before TRAXLER, Chief Judge, and WILKINSON and

WYNN, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Chief Judge Traxler and Judge Wilkinson concurred.

COUNSEL

ARGUED: Jonathan Lee Megerian, MEGERIAN & WELLS,

Asheboro, North Carolina, for Appellant. Sandra Wallace-
Smith, NORTH CAROLINA DEPARTMENT OF JUSTICE,

Raleigh, North Carolina, for Appellee. ON BRIEF: Paul M.

Green, Durham, North Carolina, for Appellant. Roy Cooper,

Attorney General of North Carolina, Raleigh, North Carolina,

for Appellee.

OPINION

WYNN, Circuit Judge:

Petitioner Eugene Tyrone DeCastro seeks habeas relief

from his capital sentence for slaying Leon and Margaret Batten. Petitioner argues that he received ineffective assistance of

counsel and that the State of North Carolina violated his

Eighth Amendment and due process rights by presenting to

the jury evidence and argument that contradicted those presented in the trials of his co-defendants. A state court denied

Petitioner habeas relief, and the federal district court correctly

determined that the state court’s decision did not constitute an

unreasonable application of clearly established federal law or

an unreasonable determination of the facts. Accordingly, we

affirm.

I.

In 1993, Petitioner Eugene DeCastro was charged with the

murders of Leon and Margaret Batten and robbery with a dangerous weapon of Leon Batten. A Johnston County, North

Carolina jury found Petitioner guilty of two counts of firstdegree murder and one count of robbery with a dangerous

weapon. After a sentencing hearing, the jury recommended a

death sentence for each murder conviction. The trial court

imposed the recommended death sentences, as well as an

additional consecutive sentence of forty years’ imprisonment

for the robbery conviction. Petitioner appealed to the Supreme

Court of North Carolina, which detailed the salient facts in

State v. DeCastro, 342 N.C. 667, 467 S.E.2d 653 (1996).

2 DECASTRO v. BRANKER
At about 5:20 p.m. on February 29, 1992, George Goode,

his brother Chris Goode, Glenn Troublefield, and Petitioner

went for a ride in George Goode’s car. Id. at 676, 467 S.E.2d

at 657. In Smithfield, North Carolina, they saw a man walking

along the road, and George Goode stopped the car. Id. Petitioner, George Goode, and Chris Goode got out of the car and

assaulted and robbed the man. Id. George Goode, Chris

Goode, and Petitioner then returned to the car, and George

Goode drove away at a high rate of speed. Id.

George Goode played "chicken" with other vehicles and

eventually lost control of his car and ran into a ditch. Id. at

677, 467 S.E.2d at 657. After freeing the car, Petitioner,

George Goode, and Chris Goode went to a store and bought

a bottle of wine. Id. George Goode’s reckless driving continued until he lost control of the car again and stranded it near

the Dallas Mobile Home Park. Id. After unsuccessfully trying

to free the car, Petitioner, George Goode, and Chris Goode

began walking toward the Dallas Mobile Home Park, where

George Goode and his wife rented a mobile home. Id. Troublefield, who had asked to be brought home several times, left

the area. Id.

At about 6:35 p.m., a friend of George Goode’s wife saw

George Goode and several other men at the Goodes’ mobile

home. Id. Earlier that day, the owner of the Dallas Mobile

Home Park, Leon Batten, informed one of the Goodes’ neighbors that the Goodes’ mobile home was vacant and that he

was seeking new tenants. Id. The Goodes had apparently been

delinquent in paying their rent. Id. Between 6:30 p.m. and

7:30 p.m., the neighbor saw a strange man in the mobile home

and informed Leon Batten. Id. Leon Batten drove his truck to

the Goodes’ home. Id. A few minutes later, witnesses saw

several African-American men standing over and beating

Leon Batten in the Goodes’ yard. Id. A park resident drove to

the Batten residence and informed Leon Batten’s wife, Margaret, of the skirmish, and Margaret Batten drove to the

DECASTRO v. BRANKER 3
Goodes’ mobile home. Id. Other witnesses drove to the home

of a deputy sheriff and informed him of the trouble. Id.

At about 7:30 p.m., a deputy sheriff arrived at the Goodes’

mobile home and saw three African-American men standing

in the yard. Id. At trial, the deputy identified two of the men

as Petitioner and George Goode. Id. The men fled, and the

deputy was unable to catch them. Id. The deputy then discovered the bodies of Leon and Margaret Batten in the cargo bed

of Leon Batten’s truck. Id. They had been stabbed multiple

times, and neither had any vital signs. Id.

Another deputy sheriff approaching the scene spotted

George Goode two-tenths of a mile from the mobile home

park. Id. George Goode was quickly walking away from the

area. Id. When taken into custody, George Goode had Leon

Batten’s wallet. Within an hour after George Goode was taken

into custody, Chris Goode approached the crime scene seeking his brother. After noticing bloodstains on Chris Goode’s

clothing, officers placed him in custody and discovered Leon

Batten’s partial dental plate in his pocket. Id. at 677-78, 467

S.E.2d at 657.

Investigators continued their search. Id. Around 6:00 a.m.

the next morning, with the aid of a State Bureau of Investigation ("SBI") airplane, officials spotted Petitioner walking

along a dirt road in the area. Id. at 678, 467 S.E.2d at 657.

Officials found Petitioner lying at the base of a tree and

arrested him. Id.

Investigators later found three sets of human tracks leading

from an area near the Goodes’ mobile home and were able to

follow the tracks despite several gaps. Id. The tracks diverged,

and one set of tracks ended approximately fifty yards from

where Petitioner was arrested. Id. at 678, 467 S.E.2d at 657-

58.

Investigators found a wine bottle in the passenger compartment of Leon Batten’s truck. Id. at 678, 467 S.E.2d at 658.

4 DECASTRO v. BRANKER
Petitioner’s fingerprints matched one of two fingerprint lifts

taken from the bottle. Id. Further, the inside of the truck tailgate was smeared with a blood-like substance that had a handprint in it. Id. That handprint matched Petitioner’s. Id. And

blood taken from the camouflage jacket Petitioner was wearing when arrested matched Leon Batten’s. Id.

An SBI agent and a sheriff’s detective testified regarding a

statement Petitioner made while they were collecting his

clothing at the jail. Id. The officers took Petitioner’s clothes

and told him to remove everything from his pockets and place

it on a nearby bench. Id. Petitioner removed $13.00 from his

pockets, and the detective asked the agent "if it was okay for

[Petitioner] to keep the money." Id. The agent then turned

toward Petitioner and saw some money in Petitioner’s top

pocket. Id. Before the agent could say anything, Petitioner

said, "I had some of my own money, too, now." Id.

The medical examiner who conducted the autopsies on

Leon and Margaret Batten also testified. Id. She described the

eight stab wounds to Margaret Batten’s head and neck, the fifteen stab wounds to her chest and abdomen, and the numerous

defensive wounds on the backs of her hands. Id. The medical

examiner testified that Margaret Batten’s death was neither

quick nor painless; rather, she was likely to have remained

conscious for the five to ten minutes it took her to die. Id. at

679, 467 S.E.2d at 658. As for Leon Batten, the medical

examiner described several stab and puncture wounds on his

body, internal injuries, blunt trauma to his head and face, and

the stab wound to the heart that ultimately killed him. Id.

Petitioner did not testify or offer any evidence during the

guilt phase of the trial. Id. The jury found him guilty of murdering Leon and Margaret Batten as well as robbing Leon

Batten. Id. at 676, 467 S.E.2d at 656.

During the sentencing phase of Petitioner’s trial, the State

offered testimony from the medical examiner regarding the

DECASTRO v. BRANKER 5
painful nature of the victims’ deaths. Id. at 679, 467 S.E.2d

at 658. The State also introduced evidence that when Petitioner was seventeen, he was convicted of voluntary manslaughter and common law robbery and received a six-year

sentence for those offenses. Id.

In response, Petitioner offered the testimony of several witnesses during the sentencing proceeding. A police detective

testified about the circumstances of Petitioner’s prior conviction for voluntary manslaughter. Id. The detective testified

that Petitioner had been at a birthday party when one of his

friends got into a fight. Id. Petitioner handed his friend a

knife, and the friend stabbed the other person and ran. Id. The

detective testified that Petitioner did not stab anyone and was

very cooperative during the investigation of the crime. Id.

Prison and jail officials also testified that Petitioner was wellbehaved and cooperative while awaiting trial in this case. Id.

Petitioner’s mother and aunt testified about his childhood

and family life. Id. They spoke about the separation of Petitioner’s parents but gave an impression of a relatively normal

childhood and loving family that would suffer if Petitioner

were executed. They also testified that Petitioner had been

regularly employed at the time of the murders and robbery. Id.

at 680, 467 S.E.2d at 659. Petitioner then addressed the jury,

stating that he was very sorry about the Battens’ deaths. Id.

Nevertheless, the jury returned recommendations for death on

both murder counts. Id. at 676, 467 S.E.2d at 656.

Petitioner appealed his sentence to the Supreme Court of

North Carolina. That court rejected Petitioner’s argument that

a knife found in a local pond1 was improperly admitted to evidence on relevance grounds. Id. at 680, 467 S.E.2d at 659.

Likewise, the Supreme Court of North Carolina disagreed

1

"The knife in question was found on 5 June 1992 by a boy while fishing in a pond some distance away from the crime scene." Id. at 681, 467

S.E.2d at 659. 

6 DECASTRO v. BRANKER
with Petitioner’s contention that he was deprived of a fair trial

when the prosecutor argued that no physical evidence connected key witness Troublefield to the crime scene. Id. at 682,

467 S.E.2d at 660. The Supreme Court of North Carolina further rejected Petitioner’s argument that the statement he made

while in police custody—"I had some of my own money, too,

now"—was improperly admitted despite Petitioner’s having

requested counsel prior to making the statement. Id. at 683-

84, 467 S.E.2d at 661-62. Petitioner also unsuccessfully urged

that the trial court erred in admitting Troublefield’s testimony

that he was afraid of Petitioner. Id. at 685, 467 S.E.2d at 662.

Additionally, Petitioner unsuccessfully argued that the trial

court made various errors in instructing the jury. Id. at 686-

700, 467 S.E.2d at 662-71. Petitioner also contended that the

trial court improperly allowed potential jurors with reservations about the death penalty to be struck and improperly

refused to impanel a new jury for sentencing—but the court

had rejected both of those arguments in prior cases. Id. at 699-

700, 467 S.E.2d at 670-71 (citing, inter alia, State v. Jones,

336 N.C. 229, 443 S.E.2d 48 (1994), and State v. Gladden,

315 N.C. 398, 340 S.E.2d 673 (1986)). 

The Supreme Court of North Carolina further rejected arguments regarding the aggravating circumstances submitted to

the jury and the constitutionality of the death penalty generally. Id. at 693-701, 467 S.E.2d at 666-71. Finally, the

Supreme Court of North Carolina determined that the evidence supported the aggravating circumstances that the jury

had found, that no arbitrary factor influenced the jury’s imposition of the death penalty, and that the death penalty was, in

this case, neither excessive nor disproportionate. Id. at 701-

04, 467 S.E.2d at 671-73. Petitioner sought further review by

the Supreme Court of the United States, but it denied certiorari. DeCastro v. North Carolina, 519 U.S. 896 (1996).

Petitioner then pursued habeas relief, through a Motion for

Appropriate Relief ("Motion") filed in state court in North

DECASTRO v. BRANKER 7
Carolina. Petitioner made various allegations, including that

mutually incompatible theories of motive, level of participation, and relative culpability at Petitioner’s and his codefendants’ trials denied him due process, equal protection,

and the right to be free from unusual punishment. Petitioner

also contended that his counsel was ineffective in, among

other things, failing to investigate, prepare, and present mitigating evidence. On February 2, 2005, the state court granted

Petitioner an evidentiary hearing on one of his claims but

denied him an evidentiary hearing as to the rest, which the

court dismissed in a 106-page order. In March 2005, Petitioner amended his Motion, adding claims regarding forensic

blood evidence and ineffectiveness of appellate counsel. The

state court held an evidentiary hearing on March 20 through

March 22, 2006 but ultimately denied all three remaining

claims.

Petitioner sought further review by the Supreme Court of

North Carolina, but that court denied his petition for a writ of

certiorari. Petitioner then turned to the federal courts and filed

his habeas corpus petition in federal district court on May 22,

2008. Petitioner made multiple arguments as to how he

received ineffective assistance of counsel at trial and sentencing and on appeal. Petitioner then contended that the State

improperly failed to disclose exculpatory evidence at trial and

sentencing. Petitioner also maintained that his Eighth Amendment and due process rights were violated when the State

presented evidence and argument contradicted by those presented in the trials of Petitioner’s co-defendants George and

Chris Goode. Finally, Petitioner argued that the trial court

erred in its jury instructions. Petitioner asked the district court

to vacate his convictions or death sentences. On crossmotions for summary judgment, the district court granted

summary judgment in favor of Respondent Gerald Branker,

Warden of Central Prison in Raleigh, North Carolina, denied

Petitioner’s motion for summary judgment, and dismissed the

petition for writ of habeas corpus. Petitioner moved to amend

the order and judgment denying him a writ of habeas corpus;

8 DECASTRO v. BRANKER
this, too, the district court denied. On July 13, 2010, Petitioner

appealed to this Court. 

II.

While we review the district court’s denial of habeas relief

de novo, Lewis v. Wheeler, 609 F.3d 291, 300 (4th Cir. 2010),

we generally view this appeal through the highly deferential

lens mandated by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d). As the Supreme

Court recently underscored in its unanimous opinion in Harrington v. Richter, 131 S. Ct. 770 (2011), AEDPA deference

helps to ensure "confidence in the writ and the law it vindicates." Id. at 780. We may grant habeas relief on claims adjudicated on their merits in state court only if that 

adjudication resulted in a decision that was contrary

to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States or 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.

Cummings v. Polk, 475 F.3d 230, 237 (4th Cir. 2007) (internal

quotation marks omitted).

"A state court’s decision is contrary to clearly established

federal law ‘if the state court arrives at a conclusion opposite

to that reached by th[e Supreme] Court on a question of law’

or ‘confronts facts that are materially indistinguishable from

a relevant Supreme Court precedent and arrives at’" an opposite result. Lewis, 609 F.3d at 300 (alteration in original)

(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). Further, a state court unreasonably applies federal law when it

"‘identifies the correct governing legal rule from th[e] Court’s

cases but unreasonably applies it to the facts of the particular

. . . case,’" or "‘unreasonably extends a legal principle from

DECASTRO v. BRANKER 9
[the Court’s] precedent to a new context where it should not

apply or unreasonably refuses to extend that principle to a

new context where it should apply.’" Id. at 300-01 (alteration

in original) (quoting Williams, 529 U.S. at 407). Stated differently, to obtain federal habeas relief, "a state prisoner must

show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement." Harrington, 131 S. Ct. at 786-87.

III.

Most of Petitioner’s arguments revolve around whether his

counsel was effective. We therefore begin with a brief overview of the "high bar" that Petitioner attempts to surmount.

Id. at 788 (internal quotations omitted).

To demonstrate ineffective assistance of counsel, Petitioner

must show "that counsel’s performance was deficient, and

that the deficiency prejudiced the defense." Wiggins v. Smith,

539 U.S. 510, 521 (2003). Regarding the first prong, a "deficient" performance is one that falls "below an objective standard of reasonableness." Id. at 511. Petitioner must show "that

counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the Sixth Amendment."

Harrington, 131 S. Ct. at 787 (internal quotation marks omitted). See also Strickland v. Washington, 466 U.S. 668, 687

(1984) ("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.").

Our deferential assessment of counsel’s performance must

"include[ ] a context-dependent consideration of the challenged conduct as seen from counsel’s perspective at the time

. . . ." Wiggins, 539 U.S. at 523 (internal quotation marks

10 DECASTRO v. BRANKER
omitted). Further, we must resist the temptation to "secondguess counsel’s assistance after conviction or adverse sentence" and make "every effort . . . to eliminate the distorting

effects of hindsight." Strickland, 466 U.S. at 689. Indeed, we

must review with "scrupulous care, lest intrusive post-trial

inquiry threaten the integrity of the very adversary process the

right to counsel is meant to serve." Harrington, 131 S. Ct. at

788 (internal quotation marks omitted).

Regarding the second prong—that is, whether counsel’s

deficiency prejudiced the defense—"the prejudice inquiry

centers on ‘whether there is a reasonable probability that,

absent [counsel’s] errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’" Williams v. Ozmint, 494 F.3d

478, 484 (4th Cir. 2007) (quoting Strickland, 466 U.S. at

695). See also Strickland, 466 U.S. at 687 ("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."). Such a showing "requires a

substantial, not just conceivable, likelihood of a different

result." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)

(internal quotations omitted). In making this determination we

review the "totality of the evidence before the . . . jury."

Ozmint, 494 F.3d at 484 (internal quotation marks omitted).

A.

Petitioner first argues that his counsel’s attempt to suggest

that he was not present at the crime scene, instead of conceding Petitioner’s presence but arguing that he played a lesser

role, was ineffective. The state court concluded that Petitioner

failed to satisfy either Strickland prong, noting that, in addition to arguing that the State failed to show beyond a reasonable doubt that Petitioner was at the scene, the defense also

argued that it was more likely that George and Chris Goode

committed the crimes. The federal district court agreed and

DECASTRO v. BRANKER 11
further stated that Petitioner "fail[ed] to present any information to rebut the [state] court’s finding that counsel’s decision

was trial strategy that counsel selected after reasonable investigation and consideration." [J.A. 311] We agree.

In Harrington, the Supreme Court emphasized that 

[t]here are . . . countless ways to provide effective

assistance in any given case. Even the best criminal

defense attorneys would not defend a particular client in the same way. Rare are the situations in which

the wide latitude counsel must have in making tactical decisions will be limited to any one technique or

approach. . . . Counsel was entitled to formulate a

strategy that was reasonable at the time and to balance limited resources in accord with effective trial

tactics and strategies.

131 S. Ct. at 788-89 (internal quotation marks and citation

omitted). If the chosen defense strategy is unsuccessful, "even

the most experienced counsel may find it difficult to resist

asking whether a different strategy might have been better

. . . ." Id. at 790. But which strategy might have been best is

not the pertinent inquiry; instead, we ask whether the strategy

counsel chose was objectively reasonable. Id.

Here, defense counsel chose a strategy of casting reasonable doubt as to whether Petitioner was present at the scene

of the crime. Counsel pursued this strategy after consulting

with attorneys from the Death Penalty Resource Center as

well as with Petitioner and after investigating the case. While

other advocates may not have chosen the same strategy, that

does not make its employment a Sixth Amendment violation.

We recognize that the chosen strategy had weaknesses, particularly in light of evidence such as the blood found on Petitioner’s clothing and the handprint found at the crime scene.

Nevertheless, the state court supportably determined that the

chosen strategy was objectively reasonable, in light of facts

12 DECASTRO v. BRANKER
such as Petitioner’s being found relatively far from the crime

scene (as opposed to George Goode, for example, who was

found close by); the State’s acting-in-concert theory (which

would make anyone involved, even if to a lesser extent, culpable); and witness testimony indicating that everyone present

at the crime scene participated in the attack on the Battens.

Further, defense counsel did argue that the real culprit was

George Goode. During closing argument, for example,

defense counsel stated:

Now getting to who had the motive to do this? Who

did have the motive? The people who walked up

with the teeth and the people who walked up with

the pocketbook of Mr. Batten. That’s who had the

motive. The tenant who was trying to beat Mr. Batten out of his rent, who had every reason in the

world to start a problem with him, Mr. George

Goode. . . . He was acting crazy. His brother was

going right along with him. They were there and

they—they’re the ones who had the motive to do

this.

[J.A. 3168-69] The state court, in ruling on Petitioner’s

Motion, therefore noted that, in addition to arguing that the

State had failed to prove beyond a reasonable doubt that Petitioner was present when the crimes were committed, defense

counsel had argued that the Goodes were the primary perpetrators. The state court was not unreasonable in holding that

defense counsel’s strategy was not constitutionally ineffective. The district court therefore correctly held that the strategy cannot serve as the basis for federal habeas relief.

B.

Petitioner next argues that he received ineffective assistance because his counsel failed to investigate and present

evidence that co-defendant George Goode had confessed to a

DECASTRO v. BRANKER 13
fellow prisoner, Patrick Byrd. Petitioner argues that Byrd’s

testimony would have shown that George Goode was primarily responsible for the murders. 

Byrd’s statement indicated that Petitioner, George Goode,

and Chris Goode were in George Goode’s trailer when Leon

Batten came to ask for the rent money. Per Byrd’s account of

George Goode’s account, George Goode argued with Leon

Batten; Petitioner then initiated the attack on Leon Batten by

hitting him. When Margaret Batten arrived, both Goodes and

Petitioner attacked her. Byrd indicated that both Goodes and

Petitioner moved the bodies into Leon Batten’s truck bed and

passed around Leon Batten’s false teeth.

Defense counsel discussed Byrd’s statement with Petitioner

but did not interview Byrd. Defense counsel’s notes indicate

that Petitioner told counsel that Byrd’s statement was "inaccurate." [J.A. 1533A] Petitioner instructed his attorneys not to

use Byrd’s statement or to call Byrd as a witness. Indeed,

Byrd’s statement would not only place Petitioner at the crime

scene as an active participant in the attack on the Battens—it

would establish that Petitioner was the first assailant to strike

Leon Batten, that he actively participated in the attack on

Margaret Batten, and that he engaged in gruesome behavior

such as passing around Leon Batten’s dental plate.

Defense counsel’s decision not to call Byrd as a witness

was not ineffective. Nor was his failure to interview

Byrd—the substance of whose testimony counsel already

knew. See Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir.

1998) ("The Sixth Amendment . . . does not always compel

counsel to undertake interviews and meetings with potential

witnesses where counsel is familiar with the substance of their

testimony."). The state court was, accordingly, not unreasonable in holding that defense counsel was not constitutionally

ineffective on this issue, and it thus cannot serve as the basis

for federal habeas relief.

14 DECASTRO v. BRANKER
C.

Petitioner contends that defense counsel failed to effectively present evidence showing that George Goode had a

motive to kill because he suspected his wife had cheated on

him, allegedly with Leon Batten. As an initial matter, we note

that defense counsel did argue to the jury that the Goodes, and

not Petitioner, had the motive to kill the Battens. Petitioner,

however, focuses on letters that George Goode wrote to his

wife—and particularly a letter dated February 25, 1992, four

days before the murders. That letter, which was not admitted

into evidence, states:

I really need to talk to you because I don’t want us

to part this way. Please let me know what happened.

As you might already know some people told me

that you had cheated on me while I was away. At

first I was ready to just kill someone anyone but as

the days went by I had a chance to think and all I

want to know is [whether] what they said was true.

. . . If you really love me like I thought you did you

will be at your mothers house Friday afternoon about

6 pm. We really need to talk. Just me and you. 

[J.A. 696-97] Petitioner argues that the letter evidenced

George Goode’s motive and murderous intent and shows that

George Goode was the leader of the crimes against the Battens. 

To begin, Petitioner’s argument overlooks the second half

of the February 25, 1992 letter, indicating that George

Goode’s murderous thoughts had dissipated. Further, George

Goode never indicated in the February 25 letter—or any other

letter in the record—that Petitioner was not involved in the

Batten murders as alleged or that George Goode himself was

planning to attack Leon Batten. As the state court noted, even

if introduced into evidence, the letter "would not necessarily

show that George Goode had acted on his anger, or that

DECASTRO v. BRANKER 15
DeCastro was not otherwise involved as alleged." [J.A. 1987]

The state court therefore concluded that the letter’s not being

introduced was neither unreasonable nor prejudicial.

Petitioner points to the fact that the State used the letters to

show the jury in George Goode’s trial that George Goode was

the ringleader with a motive. As the district court accurately

noted, however, "simply because the State chose to use the

letter at George Goode’s trial does not establish a reasonable

probability of a different result had the letter been introduced

at DeCastro’s sentencing." [J.A. 319] We agree with the district court that "[u]ltimately, given the limited significance of

George Goode’s letters and considering the evidence presented against DeCastro at his trial, the [state court ruling on

the Motion] did not act unreasonably in finding no prejudice

under Strickland and its progeny." Id.

D.

Petitioner argues that his counsel was ineffective by failing

to rebut evidence that a knife found in a local pond was a

missing murder weapon and argument that only Petitioner

could possibly have thrown it into the pond. The record

reveals, however, that defense counsel did throw into question

whether the knife found in the pond was, in fact, the murder

weapon. Indeed, the State’s pathologist conceded on crossexamination that there was nothing special about the pond

knife and that any knife of that size could have caused the

Battens’ wounds.

Petitioner nevertheless maintains that later-adduced evidence showed that the pond knife did not fit in the knife stand

inside George Goode’s home. In contrast, other knives

obtained from a knife company after Petitioner’s conviction

were more consistent with the Battens’ wounds than the pond

knife and did fit in the knife stand but were not recovered

from the crime scene.

16 DECASTRO v. BRANKER
As the state court indicated, whether the pond knife fit

inside the Goodes’ knife stand is not particularly relevant; the

knife could have come from the Goodes’ home—regardless of

whether it was in a stand, on a counter-top, or in a drawer.

Moreover, the State’s pathologist conceded that the pond

knife was not necessarily a murder weapon and that any knife

of similar size could have been used. Under these circumstances, we agree with the district court that the state court

was not unreasonable in dismissing this claim, nor was there

any reasonable probability, in light of the substantial evidence

against Petitioner, that the jury would have reached a different

verdict had it received further information about the pond

knife, knife stand, and other later-obtained knives.

E.

Petitioner contends that defense counsel was ineffective for

failing to investigate and introduce into evidence George

Goode’s conduct history as a Marine, and specifically his

prior assault of a fellow Marine with a Gerber knife, the same

type of knife as the smaller of the knives used in the Batten

murders. Petitioner maintains that such evidence would have

led the jury to conclude that Petitioner was a lesser participant.

In response to this argument, the state court determined that

"[a]ny evidence elicited at trial by DeCastro about the earlier

knife assault by George Goode would have created, at best, a

speculative inference that George Goode and not DeCastro

was involved in the killing of the Battens—an inference that

does not ‘point directly’ to the guilt of George Goode." [J.A.

2083] Further, the state court noted that the evidence at issue

would "not prove that George Goode’s knife was not used by

DeCastro, or that some other knife was not used by DeCastro

. . . ." [J.A. 2084] In other words, the fact that George Goode

owned the Gerber knife and had previously used it against

someone would not negate the State’s case that DeCastro

acted in concert with others to murder the Battens with two

DECASTRO v. BRANKER 17
knives. The state court therefore concluded that Petitioner

failed to show prejudice under Strickland.

On appeal, as before the district court, Petitioner has failed

to show that the state court’s determination of this issue was

unreasonable. Indeed, Petitioner has failed to explain how this

argument could prevail in the face of the State’s concession

that the Gerber knife was found in a location indicating that

George Goode dropped it after the attack on the Battens. Further, the State did not argue that Petitioner wielded the Gerber

knife—but did argue that "he who runs with the pack is

responsible for the kill." [J.A. 3171] Under these circumstances, the state court’s determination was not unreasonable,

and the district court did not err in refusing habeas relief on

this ground.

F.

Petitioner next argues that defense counsel failed to adequately respond to the State’s evidence of the robbery. Under

North Carolina’s statutory provision pursuant to which a jury

selects life imprisonment or death, aggravating circumstances

that may be considered are limited to certain categories. N.C.

Gen. Stat. § 15A-2000(e). Those categories include whether

"[t]he defendant had been previously convicted of a felony

involving the use or threat of violence to the person . . . ."

N.C. Gen. Stat. § 15A-2000(e)(3). To support the aggravating

circumstance that Petitioner had a prior conviction for a felony involving the threat or use of violence, the State introduced evidence that Petitioner had previously been convicted

of manslaughter and common law robbery. Petitioner maintains that the facts of the robbery are not as aggravating as the

conviction suggests and that it was prejudicial not to present

those facts to the jury. 

In support of this argument, Petitioner asserts that he was

seventeen when he committed the common law robbery, and

that he was with four nineteen-year-olds when one of the oth18 DECASTRO v. BRANKER
ers suggested that they rob a pizza deliverer. Petitioner asserts

that he simply went along with the plan but did not possess

the weapon and did not personally threaten the victim. 

Petitioner fails to mention that other circumstances of the

robbery could well have damaged his case, had the jury

learned of them. Specifically, Petitioner and several other

young men ganged up on a pizza delivery boy and robbed him

using a butcher’s knife. In other words, Petitioner’s robbery

conviction shared similarities with the crimes against the Battens—it involved a large knife, multiple perpetrators ganging

up on a victim, and theft.

The record reveals that defense counsel knew details of

Petitioner’s prior robbery conviction as well as his other convictions, discussed the prior convictions with Petitioner, and

obtained materials such as records and guilty plea transcripts.

Indeed, in the case of Petitioner’s prior manslaughter conviction, the circumstances of which were indeed more mitigating

than the conviction itself would convey, defense counsel

ensured that the jury learned of helpful details. Defense counsel put a detective who had investigated the manslaughter

conviction on the witness stand. The detective testified that

Petitioner, then seventeen, handed a knife to a friend, who in

turn used the knife to defend himself against other youths who

had attacked him at a party.

On this record, Petitioner has failed to "overcome the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy." Strickland, 466

U.S. at 689 (internal quotation marks omitted). Further, Petitioner has failed to show prejudice such that there exists a

"substantial, not just conceivable, likelihood of a different

result." Cullen, 131 S. Ct. at 1403 (internal quotations omitted). As the district court noted, "[u]nlike in Rompilla [v.

Beard, 545 U.S. 374 (2005),] where counsel failed to investigate [a] rape conviction, DeCastro’s counsel investigated the

common law robbery conviction. Moreover, evidence of

DECASTRO v. BRANKER 19
DeCastro’s role in the common law robbery is not the type of

substantial and persuasive mitigating evidence that counsel

failed to discover in Rompilla." [J.A. 335] Accordingly, the

state court did not act unreasonably in denying habeas relief

on this basis, nor did the district court err in denying relief.

G.

Petitioner next contends that he received ineffective assistance of counsel because his attorneys failed to investigate

and present mitigating evidence at sentencing. Specifically,

Petitioner argues that the evidence that was presented inaccurately portrayed a happy childhood when, in reality, Petitioner’s father was an alcoholic and drug user who gave Petitioner

and his brother drugs at an early age; Petitioner’s mother had

a criminal history; and Petitioner was in the borderline range

of normal intellectual functioning.

The state court determined that, contrary to Petitioner’s

assertions, defense counsel worked diligently to develop reasonable trial and sentencing strategies based upon thorough

investigation. While the state court’s evaluation may be somewhat overly optimistic, this case differs from those cited by

Petitioner, in which counsel’s scant investigation and presentation of mitigation evidence failed to pass constitutional muster. For example, in Gray v. Branker, 529 F.3d 220, 229-31

(4th Cir. 2008), despite repeated indications of the defendant’s mental impairment, defense counsel did not investigate

the defendant’s mental health after the defendant instructed

counsel not to do so. This Court held, among other things, that

a reasonable lawyer would not rely on such a defendant’s selfassessment and instruction not to investigate his mental

health. Id. at 231. 

Similarly, in Wiggins, 539 U.S. 510, the only significant

mitigating factor the defendant’s capital jury heard was that

the defendant had no prior convictions. While defense counsel

had indications that the defendant’s childhood had been mis20 DECASTRO v. BRANKER
erable, defense counsel conducted only a minimal investigation and failed to discover that the defendant experienced

severe, long-term physical and sexual abuse and torment

throughout his childhood, including repeated rape while in

foster care. Id. at 535. The Supreme Court held that such compelling mitigating evidence might well have produced a different outcome and that counsel’s scant efforts were

prejudicially deficient. Id. at 536.

Here, counsel investigated Petitioner’s personal background and presented related mitigating evidence during the

sentencing phase of Petitioner’s trial. Counsel investigated

Petitioner’s personal history, speaking with Petitioner, his

mother, and his aunt. Further, counsel retained an investigator, who obtained information about Petitioner, including

school and criminal records. Additionally, counsel had a psychiatric expert with extensive capital experience—Dr. Claudia

Coleman—evaluate Petitioner. Dr. Coleman found Petitioner

to be mentally stable, with no indication of any mental health

illness or psychological factors that might be helpful in the

defense. Dr. Coleman stated: "I can find no psychological factors which might be helpful in your defense of this case."

[J.A. 1572]

In his post-conviction case, Petitioner re-approached Dr.

Coleman, who submitted an affidavit underscoring that her

work was for guilt-only issues and that her time spent on the

case would have been inadequate to assess potential psychiatric mitigation evidence. Dr. Coleman further indicated that,

upon a more detailed post-conviction review, she found

potential mitigation areas, including, for example, Petitioner’s

exposure to "poor parental role modeling," Petitioner’s long

history of drug and alcohol abuse, and Petitioner’s suffering

from a learning disability in childhood. [J.A. 961] These

potential mitigating factors are, however, not on a par with the

substantial mitigation evidence missed by counsel in Gray

and Wiggins. 

DECASTRO v. BRANKER 21
Further, Petitioner apparently relayed information about at

least some of these mitigation factors only after his conviction

and sentence. Petitioner conceded that he "obviously did not

understand that these very private facts about [his] family and

personal background could be presented in his favor at the

sentencing hearing, even though they involved illegal conduct

and would be otherwise embarrassing." [J.A. 601] Regardless,

the state court did not act unreasonably in refusing Petitioner’s attempt to upend his conviction and sentence based on the

information that he failed to timely provide to counsel.

Finally, we note that defense counsel presented not insubstantial mitigating evidence on Petitioner’s behalf. Specifically, defense counsel pursued a strategy of depicting

Petitioner’s family life in a positive light, emphasizing his

loving parents and aunt, who would suffer greatly if Petitioner

were executed. As a result, the jury found Petitioner’s loving

relationship with his mother to be a mitigating circumstance.

Defense counsel also presented evidence through two witnesses that Petitioner was a well-behaved, obedient prisoner.

And defense counsel put on evidence regarding the mitigating

circumstances of Petitioner’s prior manslaughter conviction.

The state court was not unreasonable in refusing to grant

relief on this basis. The district court therefore correctly

denied federal habeas relief.

IV.

With his last argument,2 Petitioner contends that the State

2While not identified as a distinct "argument," Petitioner emphasized in

his briefing and oral argument that the state court, in ruling on Petitioner’s

Motion, allowed the State to draft its order. Petitioner attempts to cast a

shadow over the order by noting that it "originated from the word processor of Respondent’s counsel and consists mainly of the State’s MAR

Answer . . . ." Reply Brief at 1. In Harrington, however, the Supreme

Court made clear that a state court need not even issue an opinion explaining its denial of habeas relief. Harrington, 131 S. Ct. at 785 ("This Court

now holds and reconfirms that § 2254(d) does not require a state court to

give reasons before its decision can be deemed to have been ‘adjudicated

on the merits.’"). We therefore decline Petitioner’s invitation to look

behind the state court order to consider how it was drafted. 

22 DECASTRO v. BRANKER
violated his due process and Eighth Amendment rights by

presenting at his trial evidence and argument that contradicted

evidence and argument later used at the trials of George and

Chris Goode. According to Petitioner, the State persuaded the

jury to sentence him to death by arguing that he was the ringleader who murdered the victims but then made the same

claims about George Goode at his trial. Meanwhile, Petitioner

contends that at Chris Goode’s trial, the State conceded that

it could not prove which defendant actually stabbed the Battens.

A habeas petitioner’s conviction must be reviewed with an

eye toward the "law prevailing at the time [his] conviction

became final . . . ." Teague v. Lane, 489 U.S. 288, 306 (1989)

(internal quotation marks omitted). Indeed, a habeas petitioner, with only narrow exceptions, may not benefit from

either 1) a new Supreme Court rule decided after his conviction became final, or 2) a novel expansion of a rule established by preexisting precedent. Stringer v. Black, 503 U.S.

222, 227-28 (1992). As the Supreme Court stated, "[t]he interests in finality, predictability and comity underlying our new

rule jurisprudence may be undermined [either] . . . by the

invocation of a rule that was not dictated by precedent . . . [or

by] the application of an old rule in a manner that was not dictated by precedent." Id. at 228.

At issue here is the Supreme Court’s ruling in Bradshaw v.

Stumpf, 545 U.S. 175 (2005). In that case, the Sixth Circuit

had held that a prosecutor’s use of inconsistent, irreconcilable

theories (involving two separately prosecuted defendants,

where the prosecution claimed in each case that the defendant

was the shooter) violated due process, invalidating the defendant’s plea. See Stumpf v. Mitchell, 367 F.3d 594 (2004). 

On appeal, the Supreme Court held that the prosecutors’

pursuit of irreconcilably inconsistent theories in the petitioner’s and his co-defendant’s cases did not void the petitioner’s

guilty plea, where Ohio law did not distinguish between a

DECASTRO v. BRANKER 23
principal actor and an aider and abettor and where the change

in the prosecution’s theory occurred after the defendant’s

guilty plea. But the Supreme Court also indicated that the

inconsistent, irreconcilable theories may have prejudiced the

petitioner at his capital sentencing, where the sentencing

panel concluded that the petitioner was the shooter. Id. at 187-

88. The Supreme Court stated:

The prosecutor’s use of allegedly inconsistent theories may have a more direct effect on Stumpf’s sentence, however, for it is at least arguable that the

sentencing panel’s conclusion about Stumpf’s principal role in the offense was material to its sentencing

determination. The opinion below leaves some

ambiguity as to the overlap between how the lower

court resolved Stumpf’s due process challenge to his

conviction, and how it resolved Stumpf’s challenge

to his sentence. . . . In these circumstances, it would

be premature for this Court to resolve the merits of

Stumpf’s sentencing claim . . . . Accordingly, we

vacate the portion of the judgment below relating to

Stumpf’s prosecutorial inconsistency claim, and we

remand the case for further proceedings . . . .

Id.

Before Bradshaw, the Supreme Court had not suggested

that inconsistent prosecutorial theories could constitute a due

process violation. Id. at 190 (Thomas, J., concurring) ("This

Court has never hinted, much less held, that the Due Process

Clause prevents a State from prosecuting defendants based on

inconsistent theories."). This court mentioned, in dictum, in

United States v. Higgs, 353 F.3d 281, 326 (4th Cir. 2003), that

"due process may be violated if ‘an inconsistency . . . exist[s]

at the core of the prosecutor’s cases against the defendants for

the same crime,’ see Smith v. Groose, 205 F.3d 1045, 1052

(8th Cir. 2000) (finding due process violation where prosecution obtained two convictions for the same murder based on

24 DECASTRO v. BRANKER
conflicting statements from the same cooperating codefendant) . . . ." But this Court’s dictum is not binding, and in any

event Higgs, as well as Groose, post-date the finality of Petitioner’s state proceedings here, rendering them irrelevant.3

State convictions are final under Teague "when the availability of direct appeal to the state courts has been exhausted

and the time for filing a petition for a writ of certiorari has

elapsed or a timely filed petition has been finally denied."

Beard v. Banks, 542 U.S. 406, 411 (2004). Petitioner’s conviction became final on October 7, 1996. DeCastro, 519 U.S.

at 896. Because Bradshaw (and Higgs and Groose) post-dated

the finality of Petitioner’s conviction, they cannot help him in

his quest for habeas relief. 

To avert this outcome, Petitioner does not argue that his

case fits into a Teague exception.4 Instead, he argues cases

establishing that a state cannot present false evidence and cannot, for example, present testimony that it knows is false. See,

e.g., Napue v. Illinois, 360 U.S. 264, 269 (1959); Mooney v.

Holohan, 294 U.S. 103, 112 (1935). Petitioner then suggests

that the State acted deceptively. But Petitioner’s contentions

revolve around inconsistent arguments and theories, not false

evidence.

The state court rejected this claim, and the district court

determined that the state court, in so doing, did not act unrea3Petitioner also cites a concurring opinion out of the Eleventh Circuit

(Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985) (en banc) (Clark, J. concurring)), and a vacated opinion out of the Ninth Circuit (Thompson v.

Calderon, 120 F.3d 1045 (9th Cir. 1998), vacated, 523 U.S. 538 (1998)).

These opinions, too, carry no precedential weight. 

4The first Teague exception is for rulings that place "certain kinds of

primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe." Teague, 489 U.S. at 307, 311 (internal

quotation marks omitted). The second is for "watershed" rulings implicating fundamental fairness, i.e., "implicit in the concept of ordered liberty."

Id. Neither exception is applicable here. 

DECASTRO v. BRANKER 25
sonably. As the district court noted, "because Bradshaw did

create a new rule, Teague bars DeCastro’s claim. Alternatively, even if Bradshaw did not create a new rule, DeCastro

has failed to show the [state court’s] ruling is contrary to, or

based on an unreasonable application of, clearly established

federal law." [J.A. 357-58] We agree and likewise deny Petitioner habeas relief on this basis.

V.

Petitioner has failed to show that the state court that denied

him habeas relief unreasonably applied clearly established

federal law or unreasonably determined the facts. Accordingly, we affirm the district court’s denial of habeas relief.

AFFIRMED

26 DECASTRO v. BRANKER