PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CARL STEPHEN MOSELEY, 

Petitioner-Appellant,

v.

GERALD J. BRANKER, Warden,  No. 07-17

Central Prison, Raleigh, North

Carolina; NORTH CAROLINA

ATTORNEY GENERAL,

Respondents-Appellees. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley, Jr., District Judge.

(1:97-cv-01239-NCT)

Argued: September 23, 2008

Decided: November 3, 2008

Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Traxler wrote the opinion, in which Judge Shedd and Judge Duncan concurred.

COUNSEL

ARGUED: Paul MacAllister Green, Durham, North Carolina,

for Appellant. Valerie Blanche Spalding, NORTH CARO-
LINA DEPARTMENT OF JUSTICE, Capital Litigation, Federal Habeas Corpus Section, Raleigh, North Carolina, for

Appellees. ON BRIEF: Jonathan E. Broun, CENTER FOR

DEATH PENALTY LITIGATION, Durham, North Carolina,

for Appellant. Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina, for Appellees.

OPINION

TRAXLER, Circuit Judge:

Carl Stephen Moseley was convicted by a North Carolina

jury of the capital murder of Deborah Henley and sentenced

to death. After unsuccessfully challenging his conviction and

sentence on direct appeal and in state post-conviction proceedings, Moseley filed a petition for writ of habeas corpus

in federal district court. See 28 U.S.C.A. § 2254 (West 2006).

The district court denied relief. We granted a certificate of

appealability, pursuant to 28 U.S.C.A. § 2253(c)(1) (West

2006), to consider a claim raised by Moseley under Brady v.

Maryland, 373 U.S. 83 (1963). Because the North Carolina

Supreme Court’s disposition of Moseley’s Brady claim was

neither contrary to, nor an unreasonable application of, clearly

established federal law, as determined by United States

Supreme Court precedents, we now affirm.

I.

A.

Deborah Henley was a 38-year-old petite woman with a

speech impediment who lived with her mother in the Old

Town section of Winston-Salem, North Carolina. On Thursday evening, July 25, 1991, Henley’s sister dropped her off at

the SRO Club, a local dance club in Winston-Salem. According to her mother, Henley had approximately eight dollars

with her when she left for the club. 

2 MOSELEY v. BRANKER
Appellant Carl Moseley and two of his friends, Travis Key

and Tony Casstevens, also frequented the SRO Club and were

there that evening. Moseley and Key had spent most of the

day together and had thoroughly washed Key’s car, inside and

out. Moseley then borrowed Key’s car to go home and get

ready to go to the club. Key later rode to the club with another

friend, where he met Moseley and Casstevens about 9:00 p.m.

When the club closed at approximately 1:30 a.m., Henley

went outside and asked Duane Shouse for a ride home, but he

was unable to help her. An employee of the club offered to

let Henley use the telephone, but Henley declined. According

to several witnesses, Henley was instead telling patrons that

she would pay $50 for a ride home. Moseley, Key, and Casstevens were also outside the club at the time. Key saw Henley talking to Shouse and, later, to Moseley. A few minutes

later, Moseley approached Key and asked to borrow Key’s car

to take Henley home. Moseley told Key that Henley had

offered to pay him $50 for the ride and that he would split the

money with Key. Key initially resisted, but finally agreed.

Key and Casstevens saw Henley get into Key’s car with

Moseley and drive away at approximately 1:40 a.m. Henley

never arrived home.

Key and Casstevens stayed behind at the club to wait for

Moseley to return with Key’s vehicle. Based upon where

Moseley said Henley lived, they expected Moseley to return

in approximately 15 to 30 minutes. When Moseley did not

return for more than an hour, the two men left the club in

Casstevens’ vehicle. As they were driving, they saw Moseley

coming towards them in Key’s vehicle. Moseley was alone.

Both vehicles pulled over and the men got out. When Key

asked Moseley where he had been, Moseley told the men that

"the damn bitch didn’t live where she said she did." J.A. 883.

Moseley told the men that she lived on the other side of King,

North Carolina, presumably to explain his delay. That statement was untrue, but even if it had been true, the additional

distance did not explain the inordinate delay in Moseley’s

MOSELEY v. BRANKER 3
return. In addition, Moseley told the men that Henley did not

have any money. A law enforcement officer who happened by

the area witnessed the three men standing beside the road and

briefly stopped to ask if there was a problem. After taking

Moseley home, Key returned to his home and went to bed.

The next morning, Key noticed a small amount of dirt and

weeds on the floorboard of the driver’s side of his vehicle. As

noted previously, Key’s car had been thoroughly washed just

before Moseley drove it to the SRO Club the previous evening.

On Friday evening, Tommy Beroth, a property owner in a

rural area of Forsyth County, discovered Henley’s body partially hidden under cut corn stalks in his cornfield. The cornfield was approximately five miles and a nine-minute drive

from the SRO Club and within one mile of Henley’s home.

There was testimony that Moseley had travelled the roads

near the cornfield in the past and, therefore, was presumably

familiar with them. Henley was completely naked, and her

clothing was never found. She had been brutally beaten about

the head, face, neck, chest, and abdomen, sexually assaulted

with a blunt instrument, stabbed twelve times in the chest, tortured by means of two long incisions on her chest and two

more across her neck, and manually strangled. A single dark

hair was found underneath one of her fingernails. There was

no spermatozoa or semen detected.

The following day, Moseley called both Casstevens and

Key and asked them not to tell anyone that he had been at the

SRO Club on Thursday night because he was on probation

and was not supposed to be drinking alcohol in such environments. Key and Casstevens, however, had been to clubs with

Moseley before and Moseley had never previously made such

a request. When Casstevens pointed out to Moseley that his

name would be on the sign-in sheets at the SRO Club, Mose4 MOSELEY v. BRANKER
ley told Casstevens that he had gone to Nancy Bolt’s house

that evening and that she would be his alibi.1

Aware by that time of rumors that a woman had disappeared from the SRO Club on Thursday night, Casstevens and

Key contacted the police. The police obtained search warrants

and retrieved the clothing that Moseley was wearing that evening at the SRO Club, as well as two pocket-knives among his

possessions. Traces of blood were present on Moseley’s

boots, shirt, and jeans, indicating secondary transfer or spattering, but the quantities were insufficient to determine the

origin. A pathologist testified that the size and shape of the

wounds inflicted on Henley were consistent with the two

knives seized by authorities. Although there was conflicting

testimony from Moseley’s soil expert, the state’s soil analyst

found the soil on Moseley’s boots to be consistent with soil

samples taken from the crime scene.

B.

During the trial, the prosecution was allowed to present evidence of Moseley’s alleged involvement in the similar rape

and murder of Dorothy Woods Johnson, whose body was

found in adjoining Stokes County, North Carolina, approximately three months before Henley was murdered. 

Dorothy Johnson was also last seen alive at the SRO Club.

She was 35 years old, petite, and also suffered from a speech

impediment. On the evening of April 12, 1991, she drove to

the SRO Club where she met her friend Sherry Hoss and

Hoss’s then-boyfriend, Dexter Mabe. During the evening, two

1Nancy Bolt was also at the SRO Club on the evening of July 25, 1991,

where she made plans to meet Moseley later at her home. When Moseley

arrived at her home about 3:15 a.m. the following morning, Bolt saw no

blood on his clothing or cuts on his body. However, she testified that she

was not with Moseley from midnight until his arrival, and that she had

expected him to arrive earlier. 

MOSELEY v. BRANKER 5
witnesses at the club saw Johnson dancing and talking with

Moseley, whose name appeared on the SRO Club’s sign-in

sheets. Moseley was wearing a cowboy hat and dark jeans.

Hoss and Mabe left the club around 11:00 p.m. and walked

to a nearby motel where they stayed for the remainder of the

night. Johnson was still at the SRO Club when they left.

Johnson’s nude body was later found in a rural area called

Friendship Forest. She had multiple blunt force injuries to her

head, neck, chest, abdomen, and body, and had been sexually

assaulted. Spermatozoa and semen were present on vaginal

and rectal smears. The semen was estimated to have been

deposited within twelve hours of Johnson’s death. Johnson

had a single black hair underneath one of her fingernails.

Johnson’s car and her purse were left at the SRO Club. Pam

James, a former girlfriend of Moseley, testified that she and

Moseley would sometimes drive to the Friendship Forest area,

near where Johnson’s body was found, to have sexual relations. A resident of the area, and acquaintance of Moseley and

James, testified that Moseley had once questioned her and her

husband about their property and remarked that it would be a

good place to leave a body because it would take days before

it would be found.

During the initial investigation of Johnson’s murder, law

enforcement identified Dexter Mabe, Daniel Cannaday, and

several other men as possible suspects. Mabe had dark hair,

was dating Hoss at the time of the murder, was present at the

SRO Club that night, and had been involved in disagreements

with Johnson about his relationship with Hoss in the past.

Cannaday was Johnson’s former boyfriend and was known to

have been possessive and jealous of Johnson before he ended

his relationship with her. However, both men were ultimately

eliminated as suspects. DNA samples obtained from both men

did not match the DNA samples retrieved from Johnson’s

body and each man had provided an alibi for the evening.

The DNA profile from semen found in Johnson did, however, match Moseley’s DNA profile, which was obtained after

6 MOSELEY v. BRANKER
Key and Casstevens alerted authorities that Henley had left

the SRO Club with Moseley on the night Henley was murdered. As noted previously, Moseley was seen dancing and

talking to Johnson on the night of Johnson’s murder. According to Michael Budzynski, of the DNA Unit of the State

Bureau of Investigation, the chance that Moseley was not the

donor of the semen found in Johnson was approximately one

in 274 million.

There were striking and obvious similarities between the

murders of Johnson and Henley, indicating a common killer.

Johnson and Henley were both last seen alive at or leaving the

SRO Club. Henley was with Moseley when she left the SRO

Club and Johnson was seen in the company of Moseley near

the time of her disappearance. The women were of similar age

and had small physical builds. Henley was 38 years old,

approximately 5′4′′ tall, and weighed approximately 105

pounds. Johnson was 35 years old, approximately 5′6′′ tall,

and weighed approximately 82 pounds. And, both women suffered from speech impediments.

The nature and extent of the victims’ injuries and the

causes of their deaths were also similar. As discussed in more

detail below, both women sustained multiple blunt force injuries to their head, neck, chest, abdomen, and body, and had

defensive injuries. Both women had also been sexually

assaulted with a foreign object, tortured, and strangled. In

addition, both women were found completely naked in rural

areas where Moseley was known to have traveled. Both

women had dirt around their fingernails, both were barefoot,

and both had ground-in dirt on the soles of their feet. An FBI

witness testified that the signature to each crime was overkill

—the murderer inflicted far more injuries to the victims than

necessary to cause death and employed multiple means of

death, any one of which would have been alone sufficient.

The evidence regarding Johnson’s murder was admitted in

the Henley murder trial pursuant to Rule 404(b) to show idenMOSELEY v. BRANKER 7
tity of the perpetrator, the existence of a similar modus operandi, intent, and design. See N.C. Gen. Stat. § 8C-1, Rule

404(b) ("Evidence of other crimes, wrongs, or acts . . . may

. . . be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake, entrapment or accident.").2 Clearly, there

was evidence from which the jury could find that the murders

were committed by the same person. Moseley offered no evidence that excluded him as the murderer of either woman,

arguing primarily that the DNA evidence was not reliable and

that, even if it was, it only proved that Moseley had sexual

relations with Johnson in the hours immediately prior to her

death. He argued that the killer was an unknown dark-haired

man.

II.

Moseley was ultimately convicted by the jury of the firstdegree murder of Henley, and the capital sentencing hearing

commenced. As additional evidence in support of a prior felony conviction aggravator, the state presented evidence of a

1990 conviction of Moseley for assault with a deadly weapon

inflicting serious injury and the attempted second-degree rape

of Laura Fletcher. Fletcher met Moseley in June 1989 and

agreed to go for a ride with him. Moseley drove Fletcher to

a secluded road in a rural area and began to kiss and touch

her. When Fletcher resisted, Moseley took a gun from the

glove box and ordered her to completely disrobe. Moseley

2

Johnson was murdered three months before Henley. However, Moseley

was not arrested or charged in Johnson’s murder in Stokes County until

after Moseley was arrested and charged in Forsyth County for the Henley

murder. Thus, Moseley was tried and convicted first for the second murder. Moseley was later convicted of the first-degree murder, first-degree

sexual assault, and first-degree rape of Johnson, and again sentenced to

death. The circumstances underlying Johnson’s killing are set forth in

North Carolina v. Moseley, 449 S.E.2d 412 (N.C. 1994). A federal habeas

petition arising out of that case is currently pending in the federal district

court. 

8 MOSELEY v. BRANKER
also completely disrobed and ordered Fletcher to perform oral

sex. When she refused, Moseley grabbed her head and

attempted to force compliance. When she again pulled away,

Moseley pointed the gun at Fletcher’s head. A struggle ensued

and the gun went off, injuring Fletcher’s hand. After she was

injured, Moseley took Fletcher home but, anticipating that she

would contact the police and despite the fact that he had

already told her his real name, gave her a false name in the

hopes that she would report the latter instead.

In mitigation, Moseley called a former teacher, who testified as to Moseley’s good performance as a school bus driver,

and several family members and friends, who attested to a

good, loving home environment and a personal character on

the part of Moseley that was, in their opinion, inconsistent

with his having committed such an egregious crime.

At the conclusion of the sentencing hearing, the jury recommended a sentence of death, based upon the following

aggravating circumstances: (1) that Moseley had a previous

felony conviction involving the use or threat of violence; (2)

that the murder was committed while Moseley was engaged

in the commission of first-degree rape or a first-degree sex

offense; and (3) that the murder was especially heinous, atrocious, or cruel. The only mitigating circumstance found by

one or more jurors was that Moseley was cooperative during

his arrest and provided assistance to law enforcement during

the search of his bedroom. The North Carolina Supreme Court

affirmed the conviction and imposition of the death sentence,

and the United States Supreme Court denied certiorari. See

State v. Moseley, 445 S.E.2d 906 (N.C. 1994), cert. denied,

513 U.S. 1120 (1995).

Moseley initiated state post-conviction proceedings in April

1996, by filing a motion for appropriate relief ("MAR") with

the state court. The MAR was initially denied without a hearing, and the North Carolina Supreme Court denied certiorari.

However, in November 1998, the North Carolina Supreme

MOSELEY v. BRANKER 9
Court remanded the case for reconsideration of the MAR in

light of a change in state law governing capital cases in postconviction proceedings, which entitled Moseley to discovery.

See N.C. Gen. Stat. § 15A-1415(f).3 Moseley subsequently

filed an amended MAR, raising, inter alia, a claim that discovery had produced a number of documents from the Johnson murder investigation that had not been produced to the

defense in the Henley murder trial, in violation of the state’s

obligation under Brady v. Maryland.

In October 2000, the state MAR court conducted an evidentiary hearing on the claims and heard testimony from many of

the witnesses who were interviewed during the Johnson murder investigation. On March 26, 2001, the state MAR court

denied all claims. The North Carolina Supreme Court denied

certiorari, as did the United States Supreme Court.

In the meantime, Moseley initiated federal habeas proceedings by the filing of his § 2254 petition, but the matter was

held in abeyance to allow Moseley to pursue discovery in the

remanded state MAR proceedings. After the state denied his

MAR request, Moseley returned to the district court with an

amended § 2254 habeas petition as well. The magistrate judge

issued a report and recommendation that the amended petition

be denied. The district court agreed and issued an opinion

denying relief. The district court also denied Moseley’s Rule

59(e) motion. We subsequently granted a certificate of

appealability to consider Moseley’s Brady claim.

3Pursuant to § 15A-1415(f), "[i]n the case of a defendant who has been

convicted of a capital offense and sentenced to death, . . . [t]he State, to

the extent allowed by law, shall make available to the capital defendant’s

counsel the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant." N.C. Gen. Stat. § 15A-1415(f). 

10 MOSELEY v. BRANKER
III.

In Brady v. Maryland, the Supreme Court ruled that the

prosecution’s failure to disclose "evidence favorable to an

accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution." 373 U.S. at 87. In

order to prevail on a Brady claim, the accused must prove (1)

that the undisclosed evidence was favorable to him, either

because it was exculpatory or had impeaching value; (2) that

the state had the materials and failed to disclose them, "either

willfully or inadvertently"; and (3) that the evidence was

material to the defense, i.e., "prejudice must have ensued."

Strickler v. Greene, 527 U.S. 263, 282 (1999).

Brady’s requirement of materiality has particular significance in this case. Supreme Court precedent does not "automatically require a new trial whenever a combing of the

prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the

verdict." United States v. Bagley, 473 U.S. 667, 677 (1985)

(internal quotation marks omitted). Rather, evidence is "material" and prejudice ensues for purposes of the Brady inquiry

"only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682. The

"touchstone of materiality is a ‘reasonable probability’ of a

different result, and the adjective is important. The question

is not whether the defendant would more likely than not have

received a different verdict with the evidence, but whether in

its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514

U.S. 419, 434 (1995). "[A] constitutional error occurs, and the

conviction must be reversed, only if the evidence is material

in the sense that its suppression undermines confidence in the

outcome of the trial." Bagley, 473 U.S. at 678. Finally, the

materiality of suppressed evidence is "considered collectively,

not item by item." Kyles, 514 U.S. at 436. The "court may

MOSELEY v. BRANKER 11
consider directly any adverse effect that the prosecutor’s failure to respond might have had on the preparation or presentation of the defendant’s case" and "should assess the

possibility that such effect might have occurred in light of the

totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course

that the defense and the trial would have taken" had full disclosure been made. Bagley, 473 U.S. at 683.

On appeal from federal habeas review of a state capital

murder conviction, we review the district court’s denial of

relief on the basis of the state court record de novo. See

Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). However, because the state court adjudicated Moseley’s Brady

claim on the merits, we review the matter in light of the limits

on federal habeas review of a state conviction that are

imposed by § 2254(d). When a habeas petitioner’s constitutional claim has been "adjudicated on the merits in State court

proceedings," we may not grant relief unless the state court’s

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." 28 U.S.C.A.

§ 2254(d)(1) & (d)(2).

A state court’s decision is contrary to clearly established

federal law under § 2254(d) where it "applies a rule that contradicts the governing law set forth" by the United States

Supreme Court, Williams v. Taylor, 529 U.S. 362, 405 (2000),

or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless

arrives at a result different from [that] precedent," id. at 406.

A state court’s decision involves an unreasonable application

of clearly established federal law "if the state court identifies

the correct governing legal rule from [the Supreme] Court’s

cases but unreasonably applies it to the facts of the particular

12 MOSELEY v. BRANKER
state prisoner’s case." Id. at 407. The standard is quite deferential. "The state court’s application of clearly established

federal law must be ‘objectively unreasonable,’ and ‘a federal

habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly.’" Robinson v. Polk, 438 F.3d 350, 355

(4th Cir. 2006) (quoting Williams, 529 U.S. at 411). Furthermore, the state court need not cite relevant Supreme Court

decisions or even be aware of them. See id. at 358. When "assessing the reasonableness of the state court’s application of

federal law," we "review the result that the state court

reached, not whether its decision was well reasoned." Id.

(internal quotation marks and alterations omitted).

IV.

With these principles in mind, we turn to the specific Brady

claim presented by Moseley to the state court. After Moseley

was granted discovery in the state MAR proceedings, he

learned that the Stokes County authorities investigating the

Johnson murder failed to provide the Forsyth County prosecutor with several documents from their investigative file. In

particular, there were a number of documents generated in the

early phases of the Johnson murder investigation which led to

the initial identification of Daniel Cannaday and Dexter Mabe

(among others) as potential suspects, but which had not been

included in the files produced to Forysth County. Moseley

argues that, had he been privy to these additional documents

at the time, there is a reasonable probability that he could

have successfully pursued and presented an argument that

either Cannaday or Mabe was Johnson’s killer and, thereby,

that the result of his trial for the murder of Henley would have

been different.4

4Before the state MAR court, Moseley actually pursued claims that the

state withheld evidence implicating four men in Johnson’s murder: Daniel

Cannaday, Dexter Mabe, Ted Beck, and Steve Thomas Michael. He has

MOSELEY v. BRANKER 13
A.

1.

We begin with the evidence that Moseley contends implicates Cannaday as Johnson’s murderer, which we consider in

conjunction with the evidence regarding Cannaday that was

produced to Moseley and that he contends could have been

developed had full disclosure taken place.

Immediately after Johnson’s body was found, the investigating law enforcement officers interviewed Edward Moore,

an off-duty Forsyth County police officer who was working

at the SRO Club the evening that Johnson disappeared, and

Shannon Jarrell Hill, who was a patron of the club that evening. Summaries of the interviews were prepared, but portions

of them were not included in the Stokes County materials forwarded to Forsyth County.

According to the summaries, Moore told the officers that he

saw Johnson walking outside the SRO Club at approximately

1:00 a.m., with a white male, approximately 5′8′′ tall, 192

pounds, with dark brown hair and a medium build, wearing a

cowboy hat, blue jeans, a light plaid shirt, and brown loafer

shoes with shoe strings. Moore had never seen the man

before. Within a few days, Moore was shown a photographic

line-up that included photographs of Dexter Mabe (the #2

photograph) and Daniel Cannaday (the #3 photograph), but

not Moseley (who had not yet been identified as a suspect).

According to the summaries, Moore identified, with "[n]o

doubt," the #3 photograph of the lineup as the one depicting

the man walking with Johnson. J.A. 338. At the state MAR

abandoned the claims pertaining to Beck and Michael. With regard to

Cannaday and Mabe, Moseley asserts that he may have been able to convince a jury that one or the other, but not both, was the actual murderer.

He has never asserted that the men acted jointly. 

14 MOSELEY v. BRANKER
hearing, however, Moore was not so definitive in his identification. He testified that he initially "picked two and three"

from the photographic lineup, but "stuck with three." J.A.

2166. And Moore was never asked to confirm or deny the

officer’s "[n]o doubt" notation. Moore further testified that he

was about ten feet away from the man and was only able to

see his profile, the cowboy hat, and part of his face. He also

testified that, when he was shown a picture of Moseley for the

first time in 2000, he found the resemblance between Moseley

and Cannaday to be "uncanny." J.A. 2169. In Moore’s own

words, they "looked the same." J.A. 2169.

Hill told the officers that she saw Johnson slow dancing in

the SRO Club with a white male, approximately 165 pounds,

with sandy brown hair, at approximately 1:00 a.m. on the

night Johnson disappeared. However, she described the dress

of the man quite differently from Moore—beige or tan dress

pants, an off-white button-up shirt, and tan dress shoes.

According to the police summary, when Hill was shown the

photographic lineup, she told the police that numbers three

and four from the lineup "look[ed] familiar" and that number

three "look[ed] like the guy" that was dancing with Johnson.

J.A. 339. Hill did not testify at the evidentiary hearing and

appears to have never been shown a photograph of Moseley.

Also undisclosed to Moseley was a letter written by Johnson to Cannaday the week before her murder, as well as summaries of police interviews of two friends and coworkers of

Johnson. In the letter, Johnson wrote that she still wanted to

marry Cannaday but knew he intended to marry someone else.

She also wrote that she was seeing other men. She mentioned

that Cannaday had asked to talk to her during the upcoming

weekend, but told him that if she did not hear from him, she

would know that he wanted to be with his new girlfriend.

Debra Wells, Johnson’s coworker, told police that someone

named Danny called for Johnson at work the Friday before

her murder and that Johnson told her that the man wanted to

start dating her again. Shirley Brim Jones, a friend and

MOSELEY v. BRANKER 15
coworker of Johnson, told the police that Cannaday was possessive of Johnson when they were dating, but confirmed that

Cannaday had ended the relationship because Johnson suffered from emotional problems.

Finally, Cannaday’s criminal record was not disclosed to

the defense. It contains a charge of attempted rape in 1979

that was dropped and an acquittal for a charge of assault the

same year.

According to the state MAR court, the police interview

summaries of Cannaday, Margaret Sisk (a waitress in a restaurant that Cannaday and Johnson sometimes visited), and

three patrons of the club that night were disclosed to the

defense prior to the Henley trial. Sisk told officers that Cannaday seemed jealous of Johnson when they were together and

that Johnson would act differently when she was with Cannaday. Sisk was unable to testify at the evidentiary hearing

because of health problems. The three patrons of the club

identified Cannaday and others in the photographic lineup as

persons who had been to the SRO Club in the past, but they

were unable to place Cannaday at the club or with Johnson on

the night of the murder.

Cannaday, who was also interviewed early in the Johnson

murder investigation, confirmed that he had ended his relationship with Johnson months before the murder because of

her mood swings. He admitted that he had called Johnson the

week before her death to ask her about an anonymous call his

father received from a woman claiming to be pregnant with

Cannaday’s child. Cannaday thought that Johnson might have

made the call in an effort to reunite with him. However, Johnson denied making the call and, consistent with her letter, told

Cannaday that she was seeing another man. Cannaday denied

calling Johnson on the day she was killed and said that he had

never been to the SRO Club.5 He told the police that he was

5

Johnson’s letter to Cannaday appears to at least partially confirm Cannaday’s statements. For example, Johnson wrote that Cannaday’s tele16 MOSELEY v. BRANKER
with his new girlfriend, Sue Peck, the evening of Johnson’s

murder. He also volunteered to submit to a polygraph examination and blood test. As noted previously, Cannaday was

eliminated as a suspect after his DNA failed to match the

DNA found on Johnson’s body.

Neither the state nor the defense interviewed Sue Peck during the investigation of Johnson’s murder. When located for

the state evidentiary hearing nearly ten years later, Peck confirmed that she was in a relationship with Cannaday at the

time and that they were together on the evening of Johnson’s

murder. However, she testified that she left Cannaday at his

father’s house around 9:00 p.m. or 10:00 p.m. on the evening

of Johnson’s murder, approximately an hour and fifteen minutes away from Winston-Salem. According to Peck, Cannaday did not have a car but would have had access to his

father’s car. Cannaday was present and available to testify at

the state MAR hearing, but Moseley did not call him as a witness to confirm or deny the statements he had made to the

police.

2.

Moseley also contends that he was prejudiced by the state’s

failure to disclose evidence allegedly implicating Dexter

Mabe as Johnson’s murderer. Specifically, Moseley points to

the letter Johnson wrote to Cannaday as well as a missing portion of the Jones interview, both of which recount that Mabe

had threatened Johnson in the past for interfering in Mabe’s

relationship with Hoss. In addition, Mark Lamb, a patron at

the SRO Club on the night of Johnson’s murder, told investiphone call to her "over someone calling" had interfered with her attempts

to heal from their breakup, and that she knew he was seeing someone else.

J.A. 362. She also mentioned to Cannaday that she had been going to a

new club in Winston-Salem where no one knew her and that she was seeing other people. 

MOSELEY v. BRANKER 17
gators that he saw Johnson arguing with Mabe. When Lamb

asked Johnson about the argument, Johnson said that Mabe

thought she was interfering in his relationship with his girlfriend. At the evidentiary hearing, Lamb testified that Johnson

initially "seemed a bit upset over it but it kind of blew away

after a couple of minutes" and "didn’t seem to result in very

much." J.A. 2196. Moseley also points to police records indicating a number of charges and convictions against Mabe for

angry or assaultive behavior and a criminal investigation

report regarding a previous altercation between Mabe, Hoss,

and Johnson, including allegations that Mabe had assaulted

the women.

When Mabe was interviewed by law enforcement officers,

he confirmed that he was at the SRO Club that evening with

Hoss and Johnson and that he and Johnson argued at one

point about his relationship with Hoss. However, he told the

officers that he and Hoss left the club before Johnson and

spent the rest of the evening together in a nearby hotel. Mabe

also agreed to a polygraph examination and gave blood and

hair samples for comparison purposes. Like Cannaday, he was

eliminated as a suspect after his DNA did not match the

semen found in Johnson’s body.

At the state MAR hearing, Hoss confirmed the acrimonious

relationship between Mabe and Johnson, as well as the argument that evening. However, she testified that she and Mabe

(whom she was no longer seeing at the time of the hearing)

left the club somewhere between 11:30 p.m. and 12:00 a.m.

and were together for the rest of the night, thus confirming

Mabe’s alibi.6

6According to an additional police interview summary, Rose Inmann,

who was also a patron of the club that night, told officers that she saw

Mabe and Johnson dancing together an hour after Mabe and Hoss left the

club. However, this was wholly inconsistent both with the testimony of

Hoss and Mabe as well as the evidence that Mabe and Johnson disliked

one another and argued that evening. In any event, Inmann was unable to

substantiate the unsworn statement or recall any of the events of the evening when called to testify at the state MAR hearing. 

18 MOSELEY v. BRANKER
B.

Moseley claims that, when considered in conjunction with

the evidence that was disclosed to him at the time of his trial,

he has proven that the state’s nondisclosure prejudiced him in

his defense to the Henley murder. More specifically, he

argues that he has demonstrated a reasonable probability that

he could have pursued and presented a successful argument

that either Cannaday or Mabe was Johnson’s killer and,

thereby, created enough doubt to obtain an acquittal or to mitigate against the death sentence. Like the district court, however, we cannot say that the state MAR court’s decision

rejecting Moseley’s claim was contrary to, or an unreasonable

application of, the due process principles of Brady and its

progeny.

First, the evidence implicating Moseley as Henley’s murderer was independently strong. Henley’s body was found in

a rural area, five miles and nine minutes from the SRO Club,

within one mile of Henley’s home, and in a place known to

have been traveled by Moseley in the past. There was eyewitness testimony from Key and Casstevens, Moseley’s friends

who accompanied him to the SRO Club that evening, that

Moseley borrowed Key’s car at approximately 1:30 a.m. to

drive Henley home from the club and that Henley and Moseley left in the vehicle shortly thereafter. Thus, Moseley was

the last person seen with Henley, who never arrived home.

Moseley took more than twice as long as expected to return

to the club with Key’s vehicle, where Key and Casstevens

were waiting for him. When Moseley finally did meet up with

Key and Casstevens, who had left the club in Casstevens’

vehicle after tiring of the wait, Moseley falsely told them that

"the bitch" lived farther away than she had said (presumably

to justify the delay in returning) and had no money (which

was apparently true). Then, after the rumor broke that a

woman had disappeared from the SRO Club that night, Moseley telephoned Key and Casstevens and asked them to lie and

say that Moseley had not been at the club. While Moseley

MOSELEY v. BRANKER 19
claimed that this was because he was on probation, both Key

and Casstevens had frequented clubs with Moseley before and

Moseley had never previously made such a request.

The physical evidence also pointed to Moseley’s guilt.

Although Key and Moseley had washed Key’s car just prior

to going to the SRO Club the evening of the murder, Key

found dirt and weeds in the driver’s side floorboard of the car

when Moseley returned the car to him. Moseley’s boots,

which Casstevens testified were clean at the SRO Club, had

dirt on them when the police seized them from Moseley’s residence, and the state’s soil expert testified that the soil on the

boots was consistent with the soil in the field where Henley’s

body was found. Also, Moseley’s boots, pants, and shirt had

traces of blood on them indicating a spatter or secondary

transfer that the prosecution persuasively argued could have

been picked up when Moseley, unclothed during the assault

and murder, put his clothing back on after cleaning himself

with the victim’s still-missing clothing.

Second, the evidence implicating Moseley as Johnson’s

rapist and murderer was independently strong. Eyewitness

testimony placed Moseley and Johnson at the SRO Club on

the night of the murder dancing and talking together at various times. Johnson never returned home that night and was

found raped and murdered, also in a rural area known to

Moseley. And, of course, evidence of the semen found in

Johnson’s body matched the DNA samples obtained from

Moseley.

Finally, as noted by the state MAR court, the evidence that

the same person raped and murdered both Henley and Johnson, and that that person was Moseley, was compelling. Dr.

Patrick Lantz, the pathologist who performed the autopsy on

Johnson’s body, compared the injuries suffered by Johnson

and by Henley. In addition to noting their similar physical

features, age, and disabilities, Dr. Lantz testified as to the

20 MOSELEY v. BRANKER
striking similarities in the injuries inflicted upon both women.

Specifically, 

The faces of both women showed multiple blunt

force injuries. Both suffered numerous bruises

around the forehead with bleeding in the soft tissue

around the eyes. There were contusions to the sides

of their heads, cheeks and particularly their ears.

Both women had bruising or hemorrhaging in their

neck areas, demonstrating the similarity of strangulation. They both had abrasions and bruising to their

jaws and chins. They had both suffered curvilinear

pattern injuries to the back left side of their heads.

Both women had defensive bruising to their upper

right arms and inner right elbows. [Henley] had suffered two incised wounds beginning near her pubic

area and traveling in an upward left direction. [Johnson] had similar sharp injuries although hers were on

the back of her body. Both women had contusions

over the right shoulder region and both had fractured

ribs. Both women had suffered injury to their genitalia indicating that a foreign object had been inserted.

Both women had lingual contusions where their

tongues had been between their teeth as they

received blows to their faces.

J.A. 2475-76. As noted by the state MAR court, FBI Special

Agent Gregory Cooper also testified as to these similarities,

as well as to the consistent victimology of the murders: 

[B]oth victims were very small in stature; both had

birth defects affecting their speech and had received

medical treatment therefor; both were living at home

in somewhat dependent relationships with their parents; both were romantically unattached; both

attended the SRO club alone; and both were considered friendly and unsuspecting. [Special Agent]

Cooper concluded that the offender in the two cases

MOSELEY v. BRANKER 21
was looking for somebody whom he could easily

dominate, control, and manipulate.

J.A. 2476-77. Of additional significance was the fact that the

three-month period between the two murders was a typical

"cooling off period" for serial killers, that the "initial contact

and abduction site was the same," J.A. 2477, and that the

crime scenes were similar. Specifically, 

both were rural with no lighting; both were convenient to the SRO club; both were secluded, private

and somewhat isolated. The fact that both bodies

were nude was significant because from the offender’s perspective this delays identification of the victim. Taking clothes and jewelry is typical because

these items are trophies for the offender so that he

may relive the crime and relish the experience.

J.A. 2477. Finally, Special Agent Cooper, having confirmed

the similarities in the injuries and attacks attested to by Dr.

Lantz, "also noted the signature aspects of the offender’s

method of operation: overkill. Based on his investigative analysis of both the Stokes County and the Forsyth County murders, [Special Agent] Cooper’s opinion was that the two

murders were committed by the same person." J.A. 2477.

In sum, the similarities of the two crimes were striking, the

"signature" of the crimes the same, and eyewitness testimony

placed Moseley with both victims at the SRO Club immediately prior to the victims being last seen alive there. Yet in

contrast to this compelling evidence that Moseley was the

murderer of both women, there is no evidence connecting

Cannaday to Henley in any way, much less to her murder, and

the undisclosed evidence that Moseley asserts implicates Cannaday or Mabe as Johnson’s murderer is too weak and speculative to have created a reasonable probability that the result

of his trial for Henley’s murder would have been different.

22 MOSELEY v. BRANKER
With regard to Cannaday, the evidence at best demonstrated that Cannaday was jealous or possessive of Johnson

when they were dating and may have discussed seeing Johnson during the weekend of her murder. However, Cannaday

ended the relationship with Johnson months before her murder and was in a relationship with another woman at the time,

facts that Johnson’s letter to Cannaday confirms. There was

no evidence that Cannaday had ever threatened Johnson or

was violent towards her during their relationship. And while

the photographic lineup identifications made by Moore and

Hill seem initially troubling, the evidence developed at the

state MAR hearing fell well short of that necessary to demonstrate the requisite prejudice. Although both witnesses apparently settled upon Cannaday’s photograph from the lineup as

the man they saw Johnson with that evening, neither was

immediately confident in their choice, Moseley was not

included in the photographic lineup, and there is a strong

physical resemblance between the two men. Hill could not be

located prior to the evidentiary hearing, has never been shown

a photograph of Moseley for identification, and described the

dress of the man she saw dancing with Johnson much differently from the dress of the man Moore saw Johnson leaving

the club with that night. Moore, when shown a picture of

Moseley prior to the state MAR hearing, acknowledged that

it bore an uncanny resemblance to Cannaday’s picture in the

1991 lineup, i.e., that they "looked the same," and reiterated

that the man was wearing a cowboy hat and that he was only

able to see part of the man’s face. 

The state MAR court, after reviewing the undisclosed documents and observing Moore’s testimony at the evidentiary

hearing, found Moore’s 1991 identification of Cannaday’s

photograph as the man who left with Johnson to be sincere,

but nonetheless "extremely weak." J.A. 2474. As further

noted by the court, Cannaday had an alibi from his girlfriend

until around 10:00 p.m. that night, when she dropped him off

at his father’s home more than an hour away from the SRO

Club. The patrons who identified Cannaday as a prior patron

MOSELEY v. BRANKER 23
at the club did not know him personally and did not place him

there on the night of the murder. And, Sherry Hoss, who was

with Johnson at the Club that night and did know Cannaday

personally, did not see him at the club that evening. In contrast, patrons at the club that evening who knew Moseley testified that Moseley was at the club, wearing a cowboy hat,

dancing and conversing with Johnson. And, of course, Cannaday, unlike Moseley, was definitively excluded by DNA testing as the source of the semen found in Johnson’s body, and

Cannaday was eliminated early on as a suspect in her murder.

Indeed, as pointed out by the district court, Moore’s testimony

at the state MAR hearing not only severely undercut his identification of Cannaday from the photographic lineup, but,

when considered in conjunction with the testimony of other

witnesses, arguably amounts to inculpatory evidence that

Moseley was the man seen outside the club with Johnson that

evening.

With regard to Mabe, the evidence allegedly implicating

him as Johnson’s murderer is even weaker. At best, it demonstrates that Mabe and Johnson did not get along, that Mabe

had threatened Johnson in the past for interfering in his relationship with Hoss, and that the two had argued earlier in the

evening at the SRO Club. However, Johnson met Hoss and

Mabe at the SRO club that night as prearranged, an eyewitness confirmed that the argument between Johnson and Mabe

blew over, and there is no reliable evidence to contradict the

consistent testimony of Hoss and Mabe that they left the club

at 11:30 p.m. that night, returned to the nearby motel room

that they had rented before going to the club, and remained

for the rest of the night.

For these reasons, we, like the state court and the district

court, are satisfied that there is no reasonable probability that

the result of Moseley’s trial for Henley’s murder would have

been different had the additional Stokes County materials

been produced to him by the Forsyth County prosecutor.

24 MOSELEY v. BRANKER
Accordingly, Moseley is not entitled to habeas relief on this

basis.7

C.

Finally, we note briefly Moseley’s additional claim that he

was prejudiced because the undisclosed evidence, when considered in conjunction with the evidence that was disclosed

and developed during the state MAR evidentiary hearing, was

sufficiently compelling to raise a reasonable probability that

the trial court would have excluded all of the Johnson murder

evidence from presentation in the Henley trial. We need not

tarry long with this contention. After conducting the evidentiary hearing and reviewing the undisclosed evidence pertaining to Cannaday and Mabe, the state MAR court ruled that the

evidence would not have changed the trial ruling that evidence of the Johnson murder could be properly presented

under Rule 404(b). Given that the judge in the state MAR proceedings was also the trial judge, there is no reasonable prob7

In the opening brief, Moseley’s counsel asserted that the district court

erred in its analysis of the underlying Brady claim and, therefore, in its

similar determination that the state court’s consistent ruling was not unreasonable. In the reply brief and, more particularly at oral argument, Moseley’s counsel focused upon a complaint that the state court, unlike the

district court, failed to consider all of the evidence that was undisclosed,

regardless of whether it would be admissible at trial, along with any evidence that could have reasonably been uncovered in a subsequent defense

investigation. As a general rule, arguments not specifically raised and

addressed in opening brief, but raised for the first time in reply, are

deemed forfeited. See Cavallo v. Star Enter., 100 F.3d 1150, 1152 n.2 (4th

Cir. 1996). In this case, however, the failure to squarely brief the issue has

no effect upon our decision. As noted previously, we "review the result

that the state court reached, not whether its decision was well reasoned."

Robinson v. Polk, 438 F.3d 350, 358 (4th Cir. 2006) (internal quotation

marks and alterations omitted). Furthermore, in assessing the reasonableness of the state MAR court’s application of federal law, we (like the district court) have independently considered all of the evidence relied upon

by Moseley in light of his Brady claim, including that which he contends

would have been developed by competent trial counsel, and agree that he

failed to demonstrate the requisite materiality. 

MOSELEY v. BRANKER 25
ability that the suppressed evidence would have resulted in

the trial court’s issuance of a different Rule 404(b) ruling.8

V.

To conclude, the state MAR court’s determination that production of the undisclosed evidence would not have resulted

in a different verdict, either at guilt or sentencing, in Moseley’s trial for the murder of Henley was not an unreasonable

one. The evidence that Moseley murdered Johnson is strong.

The evidence that Moseley murdered Henley is strong. And,

given the similarities in the murders, the evidence that the

same person murdered both women and that the person was

Moseley is overwhelming. In contrast, the evidence allegedly

implicating Cannaday or Mabe in Johnson’s murder is speculative, and there is no evidence that implicates Cannaday or

Mabe in the murder of Henley. Because we agree that the

nondisclosure by the state was not "so serious that there is a

reasonable probability that the suppressed evidence would

8The state MAR court added that it would have deemed the suppressed

evidence inadmissible under state law because it raised nothing more than

conjecture or speculation as to Cannaday’s and Mabe’s involvement in

Johnson’s murder. See State v. Cotton, 351 S.E.2d 277, 279-80 (N.C.

1987) (holding that under Rule 401 of the North Carolina Rules of Evidence, "[e]vidence that another committed the crime for which the defendant is charged generally is relevant and admissible as long as it does

more than create an inference or conjecture in this regard. It must point

directly to the guilt of the other party. Under Rule 401 such evidence must

tend both to implicate another and be inconsistent with the guilt of the

defendant.") (internal citations omitted). We express no opinion as to the

propriety of this hypothetical state evidentiary ruling or whether the evidence would have been admissible under state or federal law, neither of

which is the issue before us. Under Brady, the question is whether Moseley was prejudiced by the nondisclosure of the evidence because there is

a reasonable probability that the outcome of the proceeding would have

been different had he been privy to it. Thus, while we agree that the evidence allegedly implicating Mabe and Cannaday is indeed speculative, our

ruling is limited to the question of whether Moseley demonstrated that he

was prejudiced by the failure of the state to disclose the documents at

issue. 

26 MOSELEY v. BRANKER
have produced a different verdict," Strickler, 527 U.S. at 281,

the state court’s rejection of Moseley’s Brady claim is neither

contrary to, nor an unreasonable application of, the applicable

precedents and Moseley is not entitled to federal habeas relief.

Accordingly, we affirm the district court’s order denying

Moseley’s petition for federal habeas corpus relief.

AFFIRMED

MOSELEY v. BRANKER 27