PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TIMOTHY RICHARDSON, 

Petitioner-Appellee,

v.  No. 11-1 GERALD J. BRANKER, Warden,

Central Prison, Raleigh, North

Carolina,

Respondent-Appellant. 

TIMOTHY RICHARDSON, 

Petitioner-Appellant,

v.  No. 11-2 GERALD J. BRANKER, Warden,

Central Prison, Raleigh, North

Carolina,

Respondent-Appellee. 

Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(5:08-hc-02163-BO)

Argued: December 7, 2011

Decided: February 6, 2012

Before TRAXLER, Chief Judge, and MOTZ and KEENAN,

Circuit Judges.
Affirmed in part, reversed in part, and remanded by published

opinion. Judge Keenan wrote the opinion, in which Chief

Judge Traxler and Judge Motz joined.

COUNSEL

ARGUED: Jonathan Porter Babb, Sr., NORTH CAROLINA

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for

Appellant/Cross-Appellee. Stanley F. Hammer, WYATT,

EARLY, HARRIS & WHEELER, LLP, High Point, North

Carolina, for Appellee/Cross-Appellant. ON BRIEF: Roy

Cooper, Attorney General, Raleigh, North Carolina, for

Appellant/Cross-Appellee. Kenneth J. Rose, CENTER FOR

DEATH PENALTY LITIGATION, Durham, North Carolina,

for Appellee/Cross-Appellant.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, the State of North Carolina seeks reversal of

the district court’s judgment granting a writ of habeas corpus

to Timothy Richardson. In granting the writ, the district court

vacated the sentence of death imposed after Richardson’s conviction for first-degree murder. The district court concluded

that the state courts of North Carolina unreasonably applied

the Supreme Court’s holding in Strickland v. Washington, 466

U.S. 668 (1984), in rejecting Richardson’s claim that his

attorney on direct appeal failed to provide effective assistance

of counsel. The district court held that Richardson’s appellate

counsel rendered ineffective assistance by not raising on

direct appeal the state trial court’s failure to instruct the jury

at sentencing concerning the statutory mitigating factor of

Richardson’s age.

2 RICHARDSON v. BRANKER
Although the district court granted Richardson’s petition

with respect to his Strickland claim, the district court rejected

Richardson’s additional claims that he was entitled to a writ

of habeas corpus because the prosecution withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83

(1963) (the Brady claim), and that he was mentally retarded

and thus could not be sentenced to death following the decision in Atkins v. Virginia, 536 U.S. 304 (2002) (the Atkins

claim). Richardson has filed a cross-appeal in this Court,

asserting that the district court erred in rejecting his Brady and

Atkins claims.

In reviewing the parties’ arguments, we are guided and

restricted by the statutory language of 28 U.S.C. § 2254, as

amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (hereafter, we use the term "AEDPA" to refer to

28 U.S.C. § 2254 as amended), and a wealth of Supreme

Court precedent interpreting and applying this statute. We are

mindful that "state courts are the principal forum for asserting

constitutional challenges to state convictions," that habeas

corpus proceedings are a "guard against extreme malfunctions

in the state criminal justice systems, not a substitute for ordinary error correction through appeal," and that a federal court

may only issue the writ if "there is no possibility fairminded

jurists could disagree that the state court’s decision conflicts

with [the Supreme Court’s] precedents." Harrington v. Richter, ___ U.S. ,___ 131 S. Ct. 770, 786-87 (2011) (citation and

internal quotation marks omitted).

Upon our review, we hold that the district court’s decision

granting Richardson’s petition runs contrary to the deference

that federal courts are required to afford state court decisions

adjudicating the merits of habeas corpus claims. Accordingly,

we reverse the portion of the district court’s judgment granting Richardson’s petition on his claim of ineffective assistance of counsel, and we affirm the remainder of the district

court’s judgment rejecting Richardson’s petition on his Brady

and Atkins claims.

RICHARDSON v. BRANKER 3
I.

We briefly set forth the facts of this matter, because the

issues presented primarily involve questions of law rather

than questions of fact, and because the Supreme Court of

North Carolina previously has provided in great detail the factual background of this case. See State v. Richardson, 488

S.E.2d 148 (N.C. 1997).

A.

Timothy Richardson was convicted by a jury in 1995 of

first-degree murder and first-degree kidnapping in connection

with the death of Tracy Marie Rich.1Id. at 151. The evidence

at trial showed that on October 6, 1993, Richardson abducted

Ms. Rich after her work shift at the L & L Food Store (the

store) in Castalia, North Carolina. Id. at 151, 157. As stated

by the Supreme Court of North Carolina, "the evidence

tended to show that [Richardson] abducted the victim from

the store, drove her to a secluded area, and ran her down with

her own car. As the victim tried to crawl away, [Richardson]

drove over her again. [Richardson] then went back to the store

to make a robbery attempt." Id. at 157. Ms. Rich’s lifeless

body was found wedged under her car. Id. at 152. The cause

of Ms. Rich’s death was "multiple blunt-force injuries and

compression injuries to her body, head, and chest as a result

of being hit by and run over with a vehicle." Id. at 153.

Ample evidence supported the jury’s finding that Richardson was the perpetrator who killed Ms. Rich. The prosecution

presented the testimony of an expert in the field of forensic

fiber identification, who testified that fibers from Richardson’s t-shirt were consistent with fibers found on Ms. Rich’s

shirt. Id. at 153, 157. Another expert witness testified that a

1The jury found Richardson guilty of first-degree murder on three separate bases: 1) malice, premeditation, and deliberation; 2) felony murder;

and 3) lying in wait. 488 S.E.2d at 151. 

4 RICHARDSON v. BRANKER
shoe impression found on a piece of plasterboard inside the

store could only have been made by Richardson’s right shoe.

Id. at 152-53, 157. 

Additionally, during the course of the abduction, the store’s

alarm "tripped." Id. at 151. This caused a police officer to

come to the store, where he observed a red car that he later

learned was registered to Terry Richardson, the defendant’s

wife. Id. Police officers suspected that Richardson had participated in the crime, and they went to Richardson’s home and

arrested him after finding him hiding in the attic. Id. at 152,

157-58.

Richardson initially denied any knowledge of Ms. Rich’s

murder, but later told police officers that he was present during the crime while an acquaintance, Kevin Hedgepeth, killed

Ms. Rich.2Id. at 152. The police interviewed Hedgepeth, as

well as several witnesses who provided an alibi for Hedgepeth, and determined that Hedgepeth was not involved in Ms.

Rich’s murder. Id. at 152, 156-57. The evidence obtained during the police investigation also discredited numerous other

aspects of Richardson’s story, rendering Richardson’s statements implicating Hedgepeth implausible. Id. at 152, 157.

Hedgepeth and his alibi witnesses testified at Richardson’s

trial. Id. at 156.

After the jury convicted Richardson of first-degree murder

and first-degree kidnapping,3 the case proceeded to the sentencing phase. The jury found as aggravating circumstances

2Richardson first stated that he gave Hedgepeth a ride to the store in

order for Hedgepeth to "get some money," and that Hedgepeth grabbed

Ms. Rich when she came out of the store. Id. at 152. Richardson later

amended his story, telling police that he and Hedgepeth were "dropped

off" at the store by Hedgepeth’s uncle. Id. In each of these versions of his

story, Richardson maintained that he witnessed Hedgepeth repeatedly "run

over" Ms. Rich with her car. Id. at 152. 

3The jury acquitted Richardson of the additional charge of robbery with

a dangerous weapon. Id. at 151. 

RICHARDSON v. BRANKER 5
that the murder was committed for pecuniary gain, and that

the murder was especially heinous, atrocious, or cruel. Id. at

160.

The trial court instructed the jury on four statutory mitigating factors, including: (i) that the defendant had no significant

history of prior criminal activity, N.C.G.S. § 15A-2000(f)(1);

(ii) that the murder was committed while the defendant was

under the influence of mental or emotional disturbance,

N.C.G.S. § 15A-2000(f)(2); (iii) that the capacity of the

defendant to appreciate the criminality of his conduct or to

conform his conduct to the requirements of law was impaired,

N.C.G.S. § 15A-2000(f)(6); and (iv) any other circumstance

arising from the evidence which the jury deems to have mitigating value, N.C.G.S. § 15A-2000(f)(9) (the "catchall" mitigating factor). 488 S.E.2d at 160. The jury found that the first

two of these mitigating factors were applicable under the evidence, but declined to find the latter two mitigating factors.4

Id. Notably, Richardson’s defense counsel did not ask for, and

the trial judge did not submit, the statutory mitigating factor

of "[t]he age of the defendant at the time of the crime,"

N.C.G.S. § 15A-2000(f)(7) (the (f)(7) mitigation instruction).5

4The jury also found present several non-statutory mitigating factors,

including that: (i) the defendant’s prior criminal convictions consisted

solely of misdemeanors, and none of those prior convictions involved violence; (ii) the defendant had an IQ of 73; (iii) the defendant was addicted

to crack cocaine; (iv) at an important stage in his development, the defendant suffered from the homicide of his brother, which resulted in significant changes in the defendant’s personality and behavior; (v) the

defendant ingested lead at an early age and suffered from lead poisoning;

and (vi) the defendant had no prior history of violent conduct. Id. at 160.

5North Carolina courts do not construe the term "age" solely as a person’s chronological age for purposes of whether the (f)(7) mitigating

instruction should be given. Instead, "age" is a "flexible and relative concept" that takes into consideration emotional maturity in addition to chronological age. See State v. Johnson, 346 S.E.2d 596, 624 (N.C. 1986).

Thus, Richardson’s chronological age of 31 years at the time of the

offense would not have foreclosed the availability of the (f)(7) mitigation

instruction. 

6 RICHARDSON v. BRANKER
After balancing the mitigating and aggravating circumstances, the jury recommended a sentence of death. 488

S.E.2d at 151, 160. The trial court followed the jury’s recommendation and sentenced Richardson to death, in addition to

a sentence of forty years’ imprisonment for the first-degree

kidnapping conviction. Id. at 151.

B.

Richardson filed an appeal with the Supreme Court of

North Carolina, in which his appellate counsel raised six

guilt-phase issues, and one sentencing-phase issue challenging the proportionality of Richardson’s death sentence. Richardson’s appellate counsel did not raise as error the state trial

court’s failure to instruct the jury on the (f)(7) mitigation factor. The Supreme Court of North Carolina affirmed Richardson’s convictions and sentences. Id. at 162.

In March 1999, Richardson filed a Motion for Appropriate

Relief in the Superior Court of Nash County, North Carolina

(the MAR court), seeking to vacate his convictions and sentences. In his motion, Richardson raised numerous claims,

including claims regarding the effectiveness of his trial counsel, the effectiveness of his appellate counsel, and the State’s

purported withholding of certain exculpatory evidence. Richardson later filed two amended Motions for Appropriate

Relief, adding a second category of allegedly exculpatory evidence withheld by the State, as well as a claim that he was

mentally retarded and thus could not be executed under state

and federal law.6

Richardson’s argument of ineffective assistance of appel6Richardson raised the claim that he was mentally retarded and could

not be executed before the Supreme Court issued its decision in Atkins, in

which the Court held that the execution of mentally retarded individuals

violated the Eighth Amendment’s prohibition against cruel and unusual

punishments. 536 U.S. 304. 

RICHARDSON v. BRANKER 7
late counsel was based on his appellate counsel’s failure to

argue that the trial court should have submitted the (f)(7) mitigation instruction to the jury. In support of this argument,

Richardson submitted the affidavit of his appellate counsel,

who averred that he "was aware that [Richardson’s] mental

age was that of [sic] eleven and one-half or twelve years old

and that his I.Q. was 73," but that "[t]he law regarding this

mitigating factor [was] not clarified until after [Richardson’s]

trial."7

The MAR court adjudicated the merits of Richardson’s

claims and denied them.8 With respect to the (f)(7) mitigation

instruction issue, the MAR court held as follows:

(f) As to [Richardson’s] allegation of ineffective

assistance of appellate counsel this Court again looks

to the decisions in Strickland and [State v.] Braswell,

[312 N.C. 553 (1984)] [.]

(g) That this Court finds as a fact in review of this

claim that this claim is without merit. [Richardson]

has failed to establish that his appellate counsel’s

7

In the affidavit, Richardson’s appellate counsel also averred that "I do

not recall ever giving significant consideration to raising this issue,

because absent a request for this instruction, review would likely have

been under the plain error standard." We observe that Richardson’s appellate counsel’s statement, that the plain error standard of review would

have applied to this claim had it been raised on appeal for the first time,

is incorrect as a matter of law. See State v. Holden, 450 S.E.2d 878, 885

(N.C. 1994) (holding that, irrespective whether the defendant’s attorney

requests an (f)(7) mitigation instruction, the trial court has an "independent

duty" to submit the instruction if it is warranted by the evidence); see also

State v. Spruill, 452 S.E.2d 279, 305 (N.C. 1994) (considering, without

mention of the plain error standard of review, defendant’s argument concerning the (f)(7) mitigation instruction despite defendant’s failure to

request that the instruction be given to the jury). 

8The MAR court did not consider the merits of several claims that the

court held were procedurally barred, but none of those claims is at issue

on this appeal. 

8 RICHARDSON v. BRANKER
representation fell below an objective standard of

reasonableness. This Court further finds that there is

no reasonable probability that in the absence of

appellate counsel’s alleged errors the results of the

proceedings would have been different.

(h) The Court also finds that no evidentiary hearing

is required in that [Richardson’s] allegation of ineffective assistance of appellate counsel involves a

question of law and not fact.

(i) The Court also finds, upon full review of this

claim, that if [Richardson’s] allegations were indeed

errors, and this Court specifically finds no errors,

such errors would be harmless beyond a reasonable

doubt.

The MAR court also rejected Richardson’s argument that

the State withheld from him certain exculpatory evidence, in

violation of Brady. The MAR court held that Richardson’s

Brady claim was procedurally barred, but also held alternatively on the merits that there were no errors with respect to

this issue, and that, even if there were errors, they "were

harmless beyond a reasonable doubt." The MAR court further

held that "the Court finds as a fact that there is no reasonable

possibility that, had the alleged error in question not been

committed, a different result would have been reached at the

trial."

With respect to Richardson’s claim that he was mentally

retarded and could not be executed without violating the

Eighth and Fourteenth Amendments, the MAR court initially

deferred ruling on the claim and ordered an evidentiary hearing. At the hearing, the parties introduced the testimony of

their respective mental health experts. After considering this

evidence, the MAR court entered an order denying the mental

retardation claim. The MAR court’s order, issued after the

Supreme Court decided Atkins, included numerous findings of

RICHARDSON v. BRANKER 9
fact supporting the MAR court’s conclusion. After setting

forth its factual findings, the MAR court held:

[Richardson] has experienced some difficulty in the

area of adaptive functioning, but [ ] he is not significantly impaired in his adaptive functioning as

required by [N.C.G.S. §] 15A-2002. The Court also

finds that there is some evidence that [Richardson]

suffers some reduced mental capacity, but that he is

not mentally retarded as set out in [N.C.G.S. §] 15A2005. The Court further finds that the defendant has

failed to meet the burden of proof requiring the

defendant to show that he has significantly sub average adaptive skills in at least two areas as set out in

the General Statutes of North Carolina. The defendant has also failed to show that he suffers from

Mental Retardation as required by [N.C.G.S. §] 15A2005.

After the MAR court denied Richardson’s claims, Richardson filed a petition for a writ of certiorari in the Supreme

Court of North Carolina. That court denied Richardson’s petition. 667 S.E.2d 272 (N.C. 2008).

C.

In November 2008, Richardson filed a petition for a writ of

habeas corpus (the habeas petition) in the United States District Court for the Eastern District of North Carolina, naming

as respondent Gerald Branker, the warden of Central Prison

located in Raleigh, North Carolina (hereafter, the State). Richardson argued that the MAR court’s denial of his motion for

appropriate relief was based on an unreasonable determination of facts and application of United States Supreme Court

precedent. Richardson raised four grounds for relief in his

petition, including that: (1) the State withheld exculpatory

evidence in violation of Brady that would have corroborated

Richardson’s theory that his acquaintance, Kevin Hedgepeth,

10 RICHARDSON v. BRANKER
murdered Ms. Rich; (2) his trial counsel rendered ineffective

assistance by not moving to suppress certain statements Richardson made while in police custody; (3) Richardson’s appellate counsel rendered ineffective assistance by not raising as

error the trial court’s failure to provide the jury at sentencing

the (f)(7) mitigation instruction; and (4) he is mentally

retarded and therefore his death sentence violates the Eighth

Amendment, under the Supreme Court’s decision in Atkins.

The State answered the habeas petition, and filed a motion for

summary judgment.

The district court granted Richardson a writ of habeas corpus with respect to his claim that he received ineffective assistance of appellate counsel. 769 F. Supp. 2d 896, 928

(E.D.N.C. 2011). The district court held that North Carolina

law mandates that a trial court submit for the jury’s consideration any statutory mitigating factor that is supported by substantial evidence, even if the defendant does not make such a

request. Id. at 919 (citing N.C.G.S. § 15A-2000(b) and State

v. Holden, 450 S.E.2d 878, 885 (N.C. 1994)). Without

addressing the decision in State v. Spruill, 452 S.E.2d 279

(N.C. 1994), the primary case relied upon by the State that

sets forth a legal standard seemingly irreconcilable with the

decision in Holden, the district court concluded that "North

Carolina law supporting petitioner’s claim was established

months before petitioner’s trial and well before his appeal."

Id. at 921.

Stating that it was "considering the issue de novo," id. at

924, the district court set forth the evidence presented by

Richardson that "[h]is overall functioning would be comparable to that of an average eleven-and-a-half, twelve year old,"

and that he suffered from alcohol and drug abuse, mild neurocognitive disorder, personality disorder, and borderline mental

retardation. Id. at 920, 922. Based on its consideration of

Richardson’s evidence, the district court held that appellate

counsel’s failure to challenge as error the absence of a (f)(7)

mitigation instruction was unreasonable. Id. at 921. AdditionRICHARDSON v. BRANKER 11
ally, relying on the decision in Holden, as well as on the decision in State v. Zuniga, 498 S.E.2d 611 (N.C. 1998), an appeal

decided well after Richardson’s appeal was argued, the district court held that "had counsel raised the [(f)(7) mitigation

instruction] issue on appeal, there is a reasonable probability

petitioner would have prevailed." Id. at 921-22. The district

court further concluded that "the State is unable to show the

error likely would have been found to be harmless beyond a

reasonable doubt on appeal." Id. at 922.

Because the district court considered Richardson’s ineffective assistance of counsel claim de novo, the court did not

accord any deference to the MAR court’s resolution of this

claim. The only reference to the MAR court in this section of

the district court’s analysis is the conclusion that "[t]he

[MAR] court’s determination to the contrary is based on an

unreasonable determination of the facts and an unreasonable

application of Smith v. Robbins[, 528 U.S. 259 (2000),] and

Strickland." 769 F. Supp. 2d at 924.

The district court ordered that Richardson be sentenced to

a term of life imprisonment unless the State initiated new sentencing proceedings within 180 days of the district court’s

order. Id. at 928. With respect to Richardson’s claim of ineffective assistance of trial counsel, his Atkins claim, and his

Brady claim, the district court granted the State’s motion for

summary judgment, holding that Richardson failed to establish that he was entitled to a writ of habeas corpus on those

claims. Id. at 908-19, 924-28.

The State timely filed a notice of appeal to the district

court’s grant of the habeas petition on Richardson’s claim of

ineffective assistance of appellate counsel. Richardson filed

an application for a certificate of appealability regarding the

claims that were denied by the district court. The district court

granted the application in part and denied it in part, granting

the certificate with respect to Richardson’s Brady and Atkins

claims.

12 RICHARDSON v. BRANKER
II.

A.

i.

We first address the district court’s decision granting a writ

of habeas corpus to Richardson on his claim of ineffective

assistance of appellate counsel. We review de novo the district court’s order granting Richardson relief on this claim.

Kanai v. McHugh, 638 F.3d 251, 260 (4th Cir. 2011).

AEDPA governs federal courts’ consideration of a state

prisoner’s petition for a writ of habeas corpus. The standard

set forth by AEDPA (the AEDPA standard) mandates that a

writ of habeas corpus "shall not be granted" for any claim that

was adjudicated on the merits in a state court proceeding

unless the state court’s adjudication:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.9

28 U.S.C. § 2254(d); Harrington, 131 S. Ct. at 785; DeCastro

v. Branker, 642 F.3d 442, 449 (4th Cir. 2011).

The limited scope of federal review of a state petitioner’s

9Richardson does not dispute that the MAR court adjudicated the merits

of his claim of ineffective assistance of appellate counsel. We also note

that our analysis primarily applies the first prong of the AEDPA standard

because Richardson’s arguments concern issues of law, rather than factual

determinations. 

RICHARDSON v. BRANKER 13
habeas claims, as established by AEDPA, is grounded in fundamental notions of state sovereignty. Harrington, 131 S. Ct.

at 787. When a federal court adjudicates a habeas corpus petition brought by a state prisoner, that adjudication constitutes

an intrusion on state sovereignty. See id. ("Federal habeas

review of state convictions . . . intrudes on state sovereignty

to a degree matched by few exercises of federal judicial

authority.") (Citation omitted). However, AEDPA restricts

that intrusion of state sovereignty by limiting the federal

courts’ power to issue a writ to exceptional circumstances,

thereby helping to ensure that "state proceedings are the central process, not just a preliminary step for a later federal

habeas proceeding." Id. The restrictive standard of review

established by AEDPA "further[s] the principles of comity,

finality, and federalism." Williams v. Taylor, 529 U.S. 362,

436 (2000).

The Supreme Court’s recent decision in Harrington, which

also involved a habeas claim alleging ineffective assistance of

counsel, is instructive regarding the significant deference that

federal courts must accord to state court decisions adjudicating habeas corpus claims on their merits. As the Supreme

Court observed, "[t]he pivotal question is whether the state

court’s application of the [applicable federal legal] standard

was unreasonable." 131 S. Ct. at 785 (emphasis added). 

Fundamentally, "‘an unreasonable application of federal

law is different from an incorrect application of federal law.’"

Id. (quoting Williams, 529 U.S. at 410) (emphasis in original).

The standard of an "unreasonable" application of federal law

requires a "substantially higher threshold" to obtain relief than

the standard of an "incorrect" application of federal law.

Schriro v. Landrigan, 550 U.S. 465, 473 (2007). "[S]o long

as ‘fairminded jurists could disagree on the correctness of [a]

state court’s decision,’" a state court’s adjudication that a

habeas claim fails on its merits cannot be overturned by a federal court. Harrington, 131 S. Ct. at 786 (quoting Yarborough

v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, "even a strong

14 RICHARDSON v. BRANKER
case for relief does not mean the state court’s contrary conclusion was unreasonable." Id. at 786 (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)).

Accordingly, Richardson had the burden of establishing

that the MAR court’s decision "was so lacking in justification

that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement." Id. at 786-87. As stated by the Supreme Court, this is

a standard that "is difficult to meet . . . because it was meant

to be." Id. at 786.

Additionally, when a petitioner’s habeas corpus claim is

based on alleged ineffective assistance of counsel, we review

the claim through the additional lens of Strickland and its

progeny, as discussed below. The AEDPA standard and the

Strickland standard are dual and overlapping, and we apply

the two standards simultaneously rather than sequentially. See

Harrington, 131 S. Ct. at 788. This imposes a very high burden for a petitioner to overcome, because these standards are

each "highly deferential" to the state court’s adjudication and,

"when the two apply in tandem, review is doubly so." Id.

(citations and internal quotation marks omitted).

To prevail on a claim of ineffective assistance of counsel,10

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

test set forth in Strickland. Wiggins v. Smith, 539 U.S. 510,

521 (2003); Williams, 529 U.S. at 390; Strickland, 466 U.S.

at 687; Jackson v. Kelly, 650 F.3d 477, 493 (4th Cir. 2011).

10As the Supreme Court explained in Strickland, the Sixth Amendment’s guarantee of "‘the right to counsel is the right to the effective assistance of counsel.’" 466 U.S. at 686 (quoting McMann v. Richardson, 397

U.S. 759, 771 n.14 (1970)). Although Strickland involved a claim concerning the alleged ineffective assistance of the defendant’s trial counsel,

the right to effective assistance of appellate counsel, as well as the Strickland standard for evaluating an ineffective assistance of counsel claim,

was extended to appellate proceedings in Smith v. Murray, 477 U.S. 527

(1986), and Smith v. Robbins, 528 U.S. 259 (2000). 

RICHARDSON v. BRANKER 15
The petitioner first must show that "counsel’s representation

fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687–88; accord Wiggins, 539 U.S. at 521;

Williams, 529 U.S. at 390–91; Sharpe v. Bell, 593 F.3d 372,

382 (4th Cir. 2010). In making this determination, a court

considering the habeas corpus petition "must indulge a strong

presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance." Strickland, 466

U.S. at 689; accord Kimmelman v. Morrison, 477 U.S. 365,

381 (1986); Darden v. Wainwright, 477 U.S. 168, 185–86

(1986); United States v. Tucker, 603 F.3d 260, 264 (4th Cir.

2010).

If counsel’s performance is found to have been deficient

under the first part of the Strickland standard, to obtain relief

the petitioner must also show that "there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different." Strickland, 466

U.S. at 694; accord Wiggins, 539 U.S. at 534; Williams, 529

U.S. at 391; Gray v. Branker, 529 F.3d 220, 234 (4th Cir.

2008). "A reasonable probability is a probability sufficient to

undermine confidence in the outcome," Strickland, 466 U.S.

at 694, and "[t]he likelihood of a different result must be substantial, not just conceivable," Harrington, 131 S. Ct. at 792

(emphasis added); accord Jackson, 650 F.3d at 493.

In the context of a claim of ineffective assistance of appellate counsel, the "proceeding" at issue is the forum in which

the petitioner’s appeal was heard, which in this case was the

Supreme Court of North Carolina. See Smith v. Robbins, 528

U.S. 259, 285-86 (2000) (holding, in the context of an ineffective assistance of appellate counsel claim, that the "prejudice"

element of the Strickland standard is satisfied by a showing

of a reasonable probability defendant would have prevailed on

appeal but for appellate counsel’s deficient performance); Bell

v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc) (same).

Therefore, for purposes of Strickland’s "prejudice" prong, as

applied in tandem with the AEDPA standard, Richardson

16 RICHARDSON v. BRANKER
must demonstrate that the MAR court incorrectly and unreasonably concluded that Richardson failed to demonstrate there

was a "reasonable probability" the Supreme Court of North

Carolina would have held in his favor had his appellate counsel raised the issue of the (f)(7) mitigation instruction in the

direct appeal. 

ii.

As an initial matter, we conclude that the district court

erred in considering Richardson’s Strickland claim under a de

novo standard of review. In a manner almost identical to the

Ninth Circuit’s error in Harrington, the district court explicitly conducted a de novo review, concluded that Richardson’s

counsel rendered ineffective assistance under Strickland, and

stated in a conclusory manner that "[t]he MAR court’s determination to the contrary is based on an unreasonable determination of the facts and an unreasonable application of

[Strickland]."11 769 F. Supp. 2d at 924. However, as the

Supreme Court stated in Harrington, "AEDPA demands

more."12 131 S. Ct. at 786; see also Bell, 236 F.3d at 157 (recognizing that federal courts may not conduct de novo review

of habeas corpus claims that were adjudicated on the merits

by a state court).

In holding that the Ninth Circuit erred in considering Harrington’s habeas corpus petition de novo, the Supreme Court

provided further instruction concerning federal courts’ duties

11In Harrington, the Supreme Court observed that the Ninth Circuit "explicitly conducted a de novo review, and after finding a Strickland violation, it declared, without further explanation, that the ‘state court’s

decision to the contrary constituted an unreasonable application of Strickland.’" 131 S. Ct. at 786 (internal citation omitted). 

12We observe that, before AEDPA’s enactment in 1996, federal courts

were required to exercise independent judgment when reviewing a state

prisoner’s application for habeas relief. See Bell v. Jarvis, 236 F.3d 149,

159-60 (4th Cir. 2000) (en banc) (discussing Williams v. Taylor, 529 U.S.

362, 399-401 (2000) (O’Connor, J., concurring)). 

RICHARDSON v. BRANKER 17
when considering a habeas corpus claim. The Supreme Court

emphasized that, under AEDPA,

a habeas court must determine what arguments or

theories supported or, as here, could have supported,

the state court’s decision; and then it must ask

whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this

Court.

Harrington, 131 S. Ct. at 786. In short, AEDPA "demands

that state court decisions be given the benefit of the doubt."

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).

We turn to apply this method of analysis to Richardson’s

claim of ineffective assistance of appellate counsel. We

remain mindful of the Supreme Court’s statement in Strickland that a reviewing court is not required to address the issue

whether "counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the

alleged deficiencies." 466 U.S. at 697. As instructed by the

Court, "[i]f it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice, which we expect

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

Buckner v. Polk, 453 F.3d 195, 202 (4th Cir. 2006) (following

Supreme Court’s instruction in Strickland to proceed directly

to "prejudice" prong if petitioner cannot demonstrate reasonable probability that outcome of trial would be different but

for counsel’s performance). Accordingly, we address Richardson’s claim of ineffective assistance of appellate counsel

under the "prejudice" prong of Strickland.

Under the dual, overlapping lenses of AEDPA and Strickland, we ask the following question: Was the MAR court’s

holding that "there is no reasonable probability that in the

absence of appellate counsel’s alleged errors the results of the

proceedings would have been different" incorrect to a degree

18 RICHARDSON v. BRANKER
that this conclusion "was so lacking in justification that [it]

was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement?" See

Harrington, 131 S. Ct. at 786-87.

Central to our consideration of this question is the district

court’s conclusion that, at the time of Richardson’s direct

appeal, settled North Carolina law mandated that trial courts

submit to the jury any statutory mitigating factor that was supported by substantial evidence. See 769 F. Supp. 2d at 919,

921. The district court held that, therefore, there was a "reasonable probability [Richardson] would have prevailed on

appeal had the [(f)(7) mitigation instruction issue] been

raised." Id. at 921, 924.

We disagree with the district court’s holding for several

reasons. First, the district court erred in not affording any deference to the MAR court’s contrary conclusion. When a claim

of ineffective assistance of counsel raised in a habeas corpus

petition involves an issue unique to state law, such as the

availability of the (f)(7) mitigation instruction at issue here, a

federal court should be especially deferential to a state postconviction court’s interpretation of its own state’s law.

Indeed, we have held that "[i]t is beyond the mandate of federal habeas courts [ ] to correct the interpretation by state

courts of a state’s own laws." Sharpe v. Bell, 593 F.3d 372,

383 (4th Cir. 2010) (citing Estelle v. McGuire, 502 U.S. 62,

67-68 (1991)) (additional citation omitted); see also Woodford, 537 U.S. at 24 (under AEDPA, state court decisions

must be given the benefit of the doubt). This required deference to the MAR court’s adjudication of Richardson’s claim

of ineffective assistance of appellate counsel was wholly lacking in the district court’s consideration of the habeas petition.

Second, when viewed under the applicable AEDPA standard, it is manifest that Richardson failed to establish that the

MAR court’s decision was "so lacking in justification that [it]

was an error well understood and comprehended in existing

RICHARDSON v. BRANKER 19
law beyond any possibility for fairminded disagreement." See

Harrington, 131 S. Ct. at 786-87. Moreover, we conclude that

the law regarding the circumstances in which a North Carolina trial court must submit the (f)(7) mitigation instruction to

the jury was not settled at the time of Richardson’s appeal. As

discussed below, the unsettled nature of North Carolina law

on this issue precludes a finding that Richardson demonstrated a "reasonable probability" that he would have prevailed on his direct appeal had his appellate counsel raised the

(f)(7) mitigation instruction issue.

The district court, relying on the decision in Holden, 450

S.E.2d 878, wholly failed to consider the contrary holding of

Spruill, 452 S.E.2d 279, another case involving the (f)(7) mitigation instruction decided by the Supreme Court of North

Carolina three weeks after the decision in Holden. In Holden,

the Supreme Court of North Carolina held that a trial court

has an independent duty to submit the (f)(7) statutory mitigating factor to the jury whenever "substantial evidence" supports that factor. 450 S.E.2d at 885. The court accordingly

applied this "substantial evidence" standard, holding that

although Holden was thirty-years old at the time of his

offense, the (f)(7) mitigation instruction should have been

given to the jury because he presented evidence that he had

(1) an I.Q. score of 56, in the mentally retarded range, and (2)

a "mental age" of ten years.13 Id. at 882, 885.

In Spruill, however, the Supreme Court of North Carolina

rejected the defendant’s argument that the trial court erred in

failing to submit the (f)(7) mitigation instruction to the jury,

despite Spruill’s evidence that he was "emotionally immature," had I.Q. scores of 64 and 74, placing him in either the

range of mild mental retardation or the "low borderline range

of intellectual functioning," had personality disorders, and

13The court held that the instruction should have been given despite evidence that Holden "had more life experience than a ten-year-old-child."

450 S.E.2d at 885. 

20 RICHARDSON v. BRANKER
read at a level below the sixth grade. 452 S.E.2d at 284-86,

305. Notably, the decision in Spruill did not cite Holden or

apply the "substantial evidence" standard used in that case. 

Instead, in Spruill, the Supreme Court of North Carolina

applied a "counterbalancing evidence" standard, considering

evidence of the defendant’s "more mature qualities and characteristics."14 Id. at 305 (citation omitted). The court held that

"[w]here evidence of emotional immaturity is counterbalanced by a chronological age of [thirty-one] years, apparently

normal physical and intellectual development, and experience,

the trial court is not required to submit the mitigating circumstance of age." Id. (citing State v. Johnson, 346 S.E.2d 596

(N.C. 1986)) (emphasis added). 

We conclude that the "substantial evidence" standard, as set

forth in Holden, and the "counterbalancing evidence" standard, as articulated in Spruill, are diametrically conflicting. It

is difficult to predict which of these two standards would have

been applied by the Supreme Court of North Carolina had

Richardson’s appellate counsel raised the (f)(7) mitigation

instruction issue on direct appeal.15 Application of these dif14The court observed that Spruill was "thirty-one years old, had worked

as an automobile mechanic and in a shipyard, moved on to a better position, attended church, and functioned quite well in the community." 452

S.E.2d at 305. 

15The Supreme Court of North Carolina ultimately may have applied

Spruill’s "counterbalancing evidence" standard, because that standard has

been applied by that Court in several more recent cases. See, e.g., State v.

Hurst, 624 S.E.2d 309, 323-25 (N.C. 2006) (applying Spruill’s "counterbalancing evidence" standard in rejecting defendant’s argument that he

was entitled to a (f)(7) mitigating instruction); State v. Thompson, 604

S.E.2d 850, 867-68 (N.C. 2004) (same); State v. Call, 545 S.E.2d 190,

198-99 (N.C. 2001) (same); State v. Steen, 536 S.E.2d 1, 18-20 (N.C.

2000) (same); State v. Meyer, 540 S.E.2d 1, 6 (N.C. 2000) (same). In contrast, we have found only two decisions in which the Supreme Court of

North Carolina applied Holden’s "substantial evidence" standard. See

State v. Zuniga, 498 S.E.2d 611, 612-13 (N.C. 1998) (applying Holden’s

RICHARDSON v. BRANKER 21
ferent standards may well have yielded different results under

the facts of this case. For instance, Richardson’s evidence that

he had I.Q. scores of 73 and 74, and had a "mental age" and

"overall functioning" comparable to an average eleven-and-ahalf or twelve-year-old, may have been sufficient to require

submission of the mitigation instruction under Holden’s "substantial evidence" test.

Here, however, the State developed "counterbalancing" evidence suggesting that Richardson displayed the socially adaptive behavior of an adult. The evidence of such behavior

includes Richardson’s involvement in a 10-year marriage, his

ability to maintain good, loving relationships with his wife

and daughter, and Richardson’s significant employment history.16 Additionally, Richardson’s own witness, Dr. John Gorman, who qualified as an expert in the field of clinical

psychology, testified that Richardson did not display "excess

anger, hostility, or grudges." The inclusion of this evidence

presented by the State, when viewed under Spruill’s "counterbalancing evidence" standard, likely would have supported

the absence of an (f)(7) mitigation instruction in this case.17

"substantial evidence" standard in holding trial court erred in not submitting (f)(7) mitigating instruction); State v. Hooks, 548 S.E.2d 501, 509

(N.C. 2001) (applying Holden’s "substantial evidence" standard but holding trial court did not err in failing to submit the (f)(2) mitigating factor

that defendant committed the crime under the influence of mental or emotional disturbance). 

16The evidence showed that Richardson was able to maintain steady

employment. He worked for a textile plant for about two years, and later

worked for his father’s brick-washing business four or five days per week.

17There is a suggestion that the district court considered the "counterbalancing evidence" standard, albeit without citing Spruill in the course of

that discussion. The district court stated that "[w]hen factors such as petitioner’s chronological age, life experience, and intellectual development

are considered, they do not counterbalance the substantial evidence of

petitioner’s young mental age." 769 F. Supp. 2d at 922. We disagree with

this conclusion, which, in any event, completely fails to afford the deference required by AEDPA to the MAR court’s holding. 

22 RICHARDSON v. BRANKER
The plain and irreconcilable conflict presented by the

Holden and Spruill standards demonstrates that North Carolina law was not settled with respect to this issue at the time

of Richardson’s appeal. Thus, given the AEDPA standard that

we apply in tandem with the standard set forth in Strickland,

we need only return to our original question: Was the MAR

court’s holding that "there is no reasonable probability that in

the absence of appellate counsel’s alleged errors the results of

the proceedings would have been different" incorrect to a

degree that this conclusion "was so lacking in justification

that [it] was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement?" In this case, as we have observed, an application of

the "counterbalancing evidence" standard from Spruill to the

similar evidence found in the present record could well have

supported the MAR court’s decision denying Richardson

relief on his claim of ineffective assistance of appellate counsel. Accordingly, the answer to the question posed above is

"no."

Our conclusion is not altered by Richardson’s attempt to

distinguish the holding in Spruill from the facts of this case.

According to Richardson, the decision in Holden applies here

rather than the decision in Spruill, because there was no testimony in Spruill correlating the defendant’s mental development to his age, whereas, in this case and in Holden, there

was such correlating testimony. However, Richardson does

not cite any North Carolina case holding that the presence of

such "correlating testimony" requires submission of the (f)(7)

mitigation instruction, nor could we find any such case.18

Richardson’s argument therefore is not clearly supported by

existing North Carolina law and, accordingly, we are required

to reject that argument under the dual lens of the AEDPA and

Strickland standards that we apply.

18Moreover, we observe that in Spruill, the defendant had I.Q. scores of

64 and 73, and "read at the 5.5 grade level," facts that suggest on their face

that the defendant was emotionally and intellectually immature despite a

chronological age of 31 years. 452 S.E.2d at 285, 305. 

RICHARDSON v. BRANKER 23
Because we conclude that the MAR court did not hold

unreasonably that Richardson failed to demonstrate "prejudice" under Strickland, we need not address the MAR court’s

conclusions that the performance of Richardson’s appellate

counsel was satisfactory or that any error, if committed, was

harmless. See Strickland, 466 U.S. at 697; Buckner, 453 F.3d

at 202. Accordingly, we reverse the district court’s grant of a

writ of habeas corpus to Richardson on his claim that his

appellate counsel rendered ineffective assistance in violation

of the Sixth Amendment.

B.

We next address Richardson’s argument that the MAR

court erred in denying him relief on the basis that the State

withheld exculpatory evidence from him before trial, in violation of Brady. The district court declined to grant Richardson

relief on this claim, and we review the district court’s decision

de novo. Muhammad v. Kelly, 575 F.3d 359, 367 (4th Cir.

2009). We examine Richardson’s argument through the dual

lens of the AEDPA standard and the standard set forth by the

Supreme Court in Brady.

19

19The district court reviewed Richardson’s Brady claim de novo "in an

abundance of caution," reasoning that it was unclear whether the MAR

court ruled on both aspects of Richardson’s Brady claim or on only one

of the categories of evidence that Richardson alleges was withheld in violation of Brady. 769 F. Supp. 2d at 908. We hold that the district court

erred in reviewing the Brady claim de novo. Although the MAR court did

not specifically mention either category of evidence in rejecting the claim,

instead referring generically to the alleged "withheld exculpatory evidence," any doubts concerning the breadth of the MAR court’s holding

must be resolved in favor of the State. See Harrington, 131 S. Ct. at 784-

85 ("When a federal claim has been presented to a state court and the state

court has denied relief, it may be presumed that the state court adjudicated

the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."). We cannot discern from the MAR

court’s decision any indication that the court failed to consider both categories of evidence in rejecting Richardson’s Brady claim. Accordingly,

the district court should have analyzed this claim under the deferential

standard set forth in AEDPA. 

24 RICHARDSON v. BRANKER
In Brady, the Supreme Court held that a due process violation occurs when the prosecution suppresses evidence favorable to an accused that is material either to guilt or to

punishment, irrespective whether the prosecution acted in

good faith. 373 U.S. at 87; see also Strickler v. Greene, 527

U.S. 263, 280 (1999); Kyles v. Whitley, 514 U.S. 419, 432

(1995); United States v. King, 628 F.3d 693, 701 (4th Cir.

2011). Such evidence is "material" if there is a reasonable

probability that the proceeding would have resulted in a different outcome had the evidence been disclosed to the

defense. Strickler, 527 U.S. at 280; Kyles, 514 U.S. at 433;

United States v. Bagley, 473 U.S. 667, 682 (1985); see also

King, 628 F.3d at 702. Like the use of the term "reasonable

probability" in the context of Strickland, a "reasonable probability" under Brady is one that is sufficient to undermine confidence in the outcome of the proceeding. Kyles, 514 U.S. at

434; Bagley, 473 U.S. at 682. At the heart of this inquiry is

a determination whether the favorable evidence withheld from

the defendant reasonably could be considered as placing the

entire case in such a different light that confidence in the verdict is undermined. Strickler, 527 U.S. at 290; Kyles, 514 U.S.

at 435; King, 628 F.3d at 704.

Richardson argues that the State withheld two pieces of

evidence that he contends are material. First, Richardson

asserts that the State withheld sketches of shoe prints drawn

from a ceiling tile taken from the crime scene. According to

Richardson, the sketches show a pattern consistent with shoes

belonging to Hedgepeth, thus bolstering Richardson’s claim

that Hedgepeth was present during the commission of the

crime. Second, Richardson asserts that the State withheld outof-court statements made by a testifying witness in which the

witness stated that she saw Hedgepeth with Richardson on

three occasions on the day of the crime. Although we initially

address this evidence on an item-by-item basis, our determination whether the withheld evidence was "material" ultimately must be made by considering its cumulative effect. See

RICHARDSON v. BRANKER 25
Kyles, 514 U.S. at 436 n.10; United States v. Ellis, 121 F.3d

908, 916 (4th Cir. 1997).

i.

We first consider the ceiling tile sketches that Richardson

claims are exculpatory. Joyce Petzka, an Agent with the North

Carolina State Bureau of Investigations (SBI), examined two

pieces of tile found at the crime scene. The first piece of tile,

labeled "item 6," was found on the floor of the store. Agent

Petzka testified at trial that item 6 bore a shoe impression that

matched shoes seized from Richardson. 

Agent Petzka also examined a piece of ceiling tile recovered from the store labeled as "item 41," which the State inadvertently discarded before Richardson’s counsel had an

opportunity to examine it. She testified that item 41 "had several small portions of questioned footwear impressions; however, these impressions were very faint and they were not

sufficient for comparison purposes." During crossexamination, Agent Petzka stated that the shoe impression

contained on item 41 was not consistent with the shoes worn

by Richardson on the night of the crime.

Unbeknownst to Richardson, however, Agent Petzka had

drawn sketches of item 41. Richardson first received these

sketches during the state post-conviction proceedings. These

sketches showed a "zigzag" pattern that Richardson contended was consistent with the pattern of Hedgepeth’s shoes.

Richardson unsuccessfully raised this issue in the MAR

court as part of his Brady claim. The MAR court held that

"there is no reasonable possibility that, had the alleged error

in question not been committed, a different result would have

been reached at trial." As discussed below, the MAR court’s

decision was not unreasonable and, accordingly, we affirm the

district court’s rejection of this claim.

26 RICHARDSON v. BRANKER
First, to the extent that Richardson would have used the

police sketches of item 41 to demonstrate that another person’s shoeprints were found at the scene of the crime, that

evidence was already before the jury. As noted previously,

Richardson elicited testimony from Agent Petzka during her

cross-examination that there were shoe prints found on a ceiling tile recovered from the store that did not match the shoes

seized from Richardson. Agent Petzka was questioned about

item 41 as follows:

Q: When you say that the other footprints found on

[item] number 41 had a zigzag pattern, what do you

mean by zigzag pattern?

A: It’s a pattern where it goes up and then comes

down and then goes up and then comes back down.

Q: And that is different than the shoe [Richardson’s shoe] that’s sitting in front of you, isn’t it?

A: Yes, it is.

Thus, despite the fact that Richardson did not have a sketch

of item 41 at his disposal, his counsel was able to elicit testimony concerning the type of shoeprints on item 41 and the

fact that those prints were inconsistent with Richardson’s

shoeprint. Accordingly, the sketches of item 41 do not add

any substance to Agent Petzka’s testimony and, therefore, do

not constitute Brady material for this purpose. See McHone v.

Polk, 392 F.3d 691, 701 (4th Cir. 2004) (undisclosed evidence

cannot form basis of a Brady violation if it is consistent with

trial testimony or merely cumulative to undisputed facts).

Second, with regard to Richardson’s contention that the

sketches of item 41 would have demonstrated that the other

individual’s shoeprints were those of Hedgepeth, this argument is pure conjecture. Richardson cannot point to substantial evidence that the print on item 41 matches Hedgepeth’s

RICHARDSON v. BRANKER 27
shoes. The mere fact that the sketches of item 41 and Hedgepeth’s shoes both displayed a "zigzag" pattern is insufficient,

given the undisputed testimony that the shoe impression on

item 41 contained inadequate detail to make a comparison to

any particular shoe. On this point, Agent Petzka testified as

follows:

Q. Ms. Petzka, the item number 41 is a large piece

of sheetrock, isn’t it?

A. Yes.

Q. And when you noted—when you saw it, you

saw several portions of questioned footwear impressions, didn’t you?

A. Yes.

Q. You could see them with the naked eye?

A. You could see them very faintly if you look at

it with side lighting, but they were very small portions and not sufficient for comparison.

. . .

Q. When you say that there were small portions of

foot impression on number 41, what exactly do you

mean?

A. They were just very small. You could see some

detail of a shoe impression but it was very faint and

was only visible by looking at it from the side. We

could not photograph it, we could not get any record

of it, to work with, and I was—

[ ]

28 RICHARDSON v. BRANKER
A. And I was not able to get anything for comparison purposes.

Q. Would you have been able to perform any tests

or are there any type of tests that you could do to

bring something that’s real faint out? Is there anything that could do that?

A. No, there really isn’t. I had a photographer

come over from the photo lab in an attempt to try

and use side lighting and everything else, and when

looked at from directly in front, which is how it has

to be photographed, they just disappeared.

Q. Were you able to come up with any idea as to

the size.

A. No.

Q. Were you able to come up with any minute

detail whatsoever anywhere as to any shoe?

A. Not that I could use for comparison, no.

Q. Were you able to come up—when you say use

for comparison, do you mean use for comparison on

the shoes that you had?

A. They were insufficient for comparison to any

shoes.

(Emphasis added.) 

We further observe that Richardson cannot identify any

evidence in the record refuting Agent Petzka’s conclusions.20

20During his post-conviction proceedings, Richardson consulted an

expert in the field of forensic science, who reviewed Agent Petzka’s testiRICHARDSON v. BRANKER 29
Accordingly, we disagree with Richardson’s argument that a

reasonable jury could conclude from the evidence that the pattern in Agent Petzka’s sketches of item 41 matched the pattern on Hedgepeth’s shoes.

ii.

We next consider certain out-of-court statements made by

Sadie Atkinson, a trial witness, which Richardson asserts

were withheld from him in violation of Brady. In the MAR

court, Richardson attached an affidavit from Atkinson stating,

in part, as follows:

5. Three times on October 6, 1993, Tim Richardson, Kevin Hedgepeth and Michael Newson

[sic] came to my residence. Upon every visit, Mr.

Richardson came to the door while the other two

sat in the small red car. I saw their faces and

noticed what they were wearing. Their third visit

was around 11:00 p.m. Tim Richardson came to

the door and the other two stayed in the car. I

couldn’t see their faces clearly, but I saw the same

clothes that they were wearing earlier that day.

. . .

7. Before the trial, I told district attorney, Keith

Werner, that Kevin Hedgepeth and Michael Newson

[sic] were in Tim Richardson’s car when Mr. Richardson visited my house on that night. Mr. Werner

told me that he did not want to hear that right now.

Mr. Werner told me only to answer the questions

asked at the trial and not to volunteer information.

mony concerning the insufficiency of the shoeprint impression on item 41.

Based on the information available to her, Richardson’s consultant did not

disagree with Agent Petzka’s conclusion that the shoeprint found on item

41 was insufficient to permit a comparison with another shoeprint. 

30 RICHARDSON v. BRANKER
8. I never told the defense attorneys this information at the trial because they didn’t ask me and I

didn’t volunteer information because of what Mr.

Werner told me.21

Richardson asserts that the above out-of-court statements

made by Atkinson would have provided corroboration for

Richardson’s defense that Hedgepeth was involved in the

crime. However, an obvious weakness in Atkinson’s postconviction affidavit is that it contains information contradicting certain aspects of her trial testimony. For instance, in the

affidavit, Atkinson states that Richardson came to her house

on the night of the crime with Hedgepeth. In contrast, at trial,

Atkinson testified that Richardson came to her house on the

night of the crime looking for Hedgepeth:

Q: Ms. Atkinson, tell the ladies and gentlemen of

the jury if you saw Mr. Richardson on the 6th of

October, 1993.

A: Yes, I did.

Q: Where did you see him?

A: He came to my front door of my house at the

trailer where I live now.

. . .

A: He was at my front door . . . and he asked me

about two of his friends and I told him I hadn’t seen

them, and he left. That was all. That was it.

Q: What two friends did he ask you about?

21Mr. Werner filed an affidavit in the district court disputing Atkinson’s

account of their discussion. In light of our analysis, it is unnecessary to

resolve any credibility dispute between these two individuals. 

RICHARDSON v. BRANKER 31
A: He asked for Mike and he asked me for [Kevin]

Hedgepeth. He didn’t say Mike who; he just said

Mike and [Kevin] Hedgepeth. That’s all he said.

Q: And were they at your residence?

A: No, they wasn’t [sic].

Q: Were they with [Richardson]?

A: I don’t have any idea.

Atkinson’s trial testimony was consistent with her SBI

interview, in which she stated that Richardson "was alone

when he came to her house." There is no manner in which we

can reconcile Atkinson’s post-conviction affidavit statements

that she saw Richardson together with Hedgepeth on the night

of the crime, with her repeated statements to the contrary that

she had not seen Hedgepeth with Richardson and that Richardson had asked her whether she had seen Hedgepeth.

Additionally, Atkinson’s statement in the affidavit that she

"never told the defense attorneys this information at trial

because they didn’t ask me" is refuted by the trial transcript.

Richardson’s counsel probed Atkinson’s recollection on cross

examination, asking her whether Richardson was with Hedgepeth on the night of the crime:

A: I told [SBI agents] that I thought [Hedgepeth]

was with [Richardson] that night; I didn’t know. But

then he had asked me about [Hedgepeth], so I wasn’t

sure, you know.

. . .

Q: When Timothy came to your house, it was

10:30 or 11:00 o’clock?

32 RICHARDSON v. BRANKER
A: Yeah, somewhere in that vicinity, yes.

Q: And he was looking to get up with [Kevin]

Hedgepeth?

A: With his friends.

Q: With his friends. And one of those, was that this

[Kevin] Hedgepeth?

A: He did call the name.

. . .

Q: Did you tell the SBI agents that came to your

house that you had seen [Hedgepeth] that day?

A: I’m not sure.

Q: You’re not sure now?

A: Not sure of that, no.

(Emphasis added.) 

In light of the conflict between the statements in Atkinson’s

affidavit and her testimony at trial, the impact of her affidavit

statement that she saw Richardson with Hedgepeth on the

night of the crime is significantly lessened. Further, the probative value of the affidavit statements was minimal because, at

best, those statements placed Hedgepeth at Atkinson’s house

with Richardson nearly forty minutes before the crime could

have occurred.22 Thus, the affidavit statements do not bear on

the testimony of the numerous witnesses whose trial testi22According to computer records linked to the store’s alarm system, Ms.

Rich closed the store about 11:41 p.m. Atkinson stated in her affidavit that

Richardson and Hedgepeth arrived at her home around 11:00 p.m. 

RICHARDSON v. BRANKER 33
mony placed Hedgepeth at locations other than the store during the time period in which the crimes occurred.23

iii.

With the above considerations in mind, we conclude our

Brady inquiry by addressing whether the withheld evidence at

issue, when considered cumulatively, is "material" under

Brady. We again pose the question that federal courts must

answer when examining a Brady claim through the lens of

AEDPA: Was the MAR court’s holding that "there is no reasonable possibility that, had the alleged error in question not

been committed, a different result would have been reached

at trial," incorrect to a degree that this conclusion "was so

lacking in justification that [it] was an error well understood

and comprehended in existing law beyond any possibility for

fairminded disagreement?" See Harrington, 131 S. Ct. at 786-

87.

The answer to this question is "no." The additional evidence concerning the sketches of item 41 did not add any new

facts to the trial evidence, and Richardson’s argument to the

contrary is not supported by the record. In addition, the statements contained in Atkinson’s affidavit were in direct conflict

with the sworn statements she made at Richardson’s trial and,

even if true, serve only to place Richardson and Hedgepeth

together at least 40 minutes before the criminal activity commenced. Thus, this evidence, even viewed cumulatively, does

not place Richardson’s trial in such a different light that confidence in the verdict is undermined. See Strickler, 527 U.S. at

290; Kyles, 514 U.S. at 435. At the very least, the MAR

23As stated by the district court, these witnesses include "Anthony

Hedgepeth, Sam Jones, Tug Lynch, and [Hedgepeth’s] uncle and grandmother who all place Kevin [Hedgepeth] with his cousin Anthony around

the Tree [an area in town where people were known to hangout], riding

home, or at home during the period when the crimes occurred." 769 F.

Supp. 2d at 915. 

34 RICHARDSON v. BRANKER
court’s conclusion in this respect is not "unreasonable" under

the AEDPA standard that we apply. Accordingly, we hold

that Richardson’s Brady claim is without merit, and we affirm

the district court’s award of summary judgment to the State

on this claim.

C.

Finally, we address Richardson’s Atkins claim that he is

mentally retarded, and that his sentence of death therefore

violates the Eighth Amendment’s prohibition against cruel

and unusual punishments. The MAR court rejected this claim

on its merits, and the district court declined to grant this part

of Richardson’s habeas petition. 769 F. Supp. 2d at 927-28.

We review the district court’s decision de novo, and we analyze the MAR court’s holding in the deferential light mandated by AEDPA. Cummings v. Polk, 475 F.3d 230, 237 (4th

Cir. 2007).

In Atkins, the Supreme Court held that the death penalty

may not be imposed on mentally retarded individuals because

a national consensus had developed against executing such

offenders. 536 U.S. at 316. However, the Supreme Court

observed that "[n]ot all people who claim to be mentally

retarded will be so impaired as to fall within the range of

mentally retarded offenders about whom there is a national

consensus." Id. at 317. Thus, the Supreme Court "left to the

states the task of developing appropriate procedures to determine whether an inmate who claims to be mentally retarded

is in fact mentally retarded." Walton v. Johnson, 440 F.3d

160, 176 (4th Cir. 2006) (en banc) (citing Atkins, 536 U.S. at

317). 

The method of establishing mental retardation in North

Carolina is provided by statute. Under N.C. Gen. Stat. § 15A2005(a) (the statute), the defendant has the burden of proving

that he is mentally retarded by establishing "[s]ignificantly

subaverage general intellectual functioning, existing concurRICHARDSON v. BRANKER 35
rently with significant limitations in adaptive functioning,

both of which were manifested before the age of 18."

N.C.G.S. § 15A-2005(a)(1)(a) (emphasis added). 

The first of these two requirements, "[s]ignificantly subaverage general intellectual functioning," is defined by the statute as "[a]n intelligence quotient [IQ] of 70 or below."

N.C.G.S. § 15A-2005(a)(1)(c). The statute further provides

that the requisite "I.Q." score must derive from "an individually administered, scientifically recognized standardized intelligence quotient test administered by a licensed psychiatrist or

psychologist." N.C.G.S. § 15A-2005(a)(2).

The statute also requires that a defendant who claims that

he is mentally retarded establish "significant limitations in

adaptive functioning." N.C.G.S. § 15A-2005(a)(1)(b). This

requirement is defined under the statute as "[s]ignificant limitations in two or more of the following adaptive skill areas:

communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure skills and work skills." Id. A defendant claiming

that he is mentally retarded must establish both the "significantly subaverage general intellectual functioning" prong and

the "significant limitations in adaptive functioning" prong.

N.C.G.S. § 15A-2005(a)(1).

The MAR court held an evidentiary hearing to determine

whether Richardson could satisfy his burden of proving that

he is mentally retarded. The MAR court found that Richardson failed to establish either of the two requirements set forth

by the statute.

With respect to the "intellectual functioning" prong, the

MAR court discussed four I.Q. tests that the parties argued

had bearing on the issue whether Richardson had an "[I.Q.] of

70 or below," as required by N.C. Gen. Stat. § 15A2005(a)(1)(c). Richardson proffered I.Q. test scores of 64 and

36 RICHARDSON v. BRANKER
67, but, as described below, the MAR court held that these

results were not qualifying I.Q. scores under the statute.

Richardson’s test score of 64 resulted from an aptitude test

Richardson took in 1991 while enrolled in the tenth grade.

The MAR court noted that a flood destroyed "most of the

information" relating to this test. Accordingly, the MAR court

observed that "[t]here is no raw test data to support this score

as required by the General Statutes, and no way of knowing

who administered or how this test was administered." Thus,

Richardson’s score of 64 on this test was not a qualifying test

score under the statute, because there was no evidence that the

test was individually administered, or was a "scientifically

recognized standardized" I.Q. test, or was "administered by a

licensed psychiatrist or psychologist," each of which is

required under N.C. Gen. Stat. § 15A-2005(a)(2).

Richardson’s test score of 67 resulted from a Wechsler

Adult Intelligence Scale Third Edition (WAIS III) test that

Richardson took in 2002 at the direction of Dr. John Warren,

a licensed psychologist. As noted by the MAR court, Dr.

Warren did not personally administer this test. Instead, he "directed his Psychometrician, [John] Tatum, to personally

administer this test."24 Dr. Warren was not present when the

test was administered, and Mr. Tatum is not a licensed psychiatrist or psychologist. Accordingly, the MAR court held that

Richardson’s test score of 67 was not a qualifying score under

the statute because the test was not "administered by a

licensed psychiatrist or psychologist," as required by N.C.

Gen. Stat. § 15A-2005(a)(2).

The State proffered test results showing that Richardson

had I.Q. scores of 73 and 74. Richardson’s I.Q. score of 73

24As the district court observed, a "psychometrician" is "a professional

who administers and scores psychological and neuropsychological tests

under the supervision of a licensed psychologist or neuropsychologist."

769 F. Supp. 2d at 8125 n.12. 

RICHARDSON v. BRANKER 37
resulted from a Wechsler Adult Intelligence Scale Revised

(WAIS R) test administered by Dr. John Gorman, a licensed

psychologist, in 1995. Richardson’s I.Q. score of 74 resulted

from a WAIS III test administered by Dr. Mark Hazelrigg, a

licensed psychologist, in 2004. The MAR court found that

these test scores complied with the requirements of N.C. Gen.

Stat. § 15A-2005(a)(2).

The MAR court concluded that because the only standardized I.Q. tests administered to Richardson meeting the

requirements of the statute resulted in I.Q. scores of 73 and

74, Richardson could not satisfy his burden of proving "significantly subaverage general intellectual functioning," i.e.,

"[a]n [I.Q.] of 70 or below." N.C.G.S. § 15A-2005(a)(1)(c). 

We again examine this holding through the deferential standard of review mandated by AEDPA, as discussed previously.

Because the MAR court’s conclusion that Richardson is not

mentally retarded is a question of fact, we apply the second

prong of the AEDPA standard. Accordingly, we ask whether

the MAR court’s decision "was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding?" 28 U.S.C. § 2254(d)(2);

accord Miller–El v. Cockrell, 537 U.S. 322, 340 (2003). After

reviewing the record and the parties’ arguments, we find no

error in the MAR court’s determination that Richardson failed

to meet the first prong of the statutory definition of mental

retardation because he does not have a qualifying I.Q. score

of 70 or below.25 Thus, our answer to the question posed

above is "no."

25Richardson contends that the MAR court did not adjudicate the merits

of the issue whether he proved significantly subaverage intellectual functioning. However, Richardson’s contention is refuted by a plain reading of

the transcript of the MAR court’s evidentiary hearing, as well as the MAR

court’s order denying his mental retardation claim. Accordingly, we

decline Richardson’s invitation to review the MAR court’s decision de

novo rather than under the deferential standard of review set forth by

AEDPA. 

38 RICHARDSON v. BRANKER
We are not persuaded by Richardson’s additional argument

that the MAR court should have adjusted downward his I.Q.

scores of 73 and 74 due to the "Flynn effect" and the "practice

effect." As described by Dr. Warren during his testimony, the

"Flynn effect" is the proposition that an individual gains intelligence over time and, thus, an I.Q. test taken later in life will

result in a higher score than had the individual taken the same

I.Q. test at an earlier age. 769 F. Supp. 2d at 925. Dr. Warren

described the "practice effect" as the proposition that an individual achieves a higher I.Q. score in subsequent I.Q. tests as

compared to that individual’s initial I.Q. test, when the two

tests are taken in a relatively close time frame. Id. Although

Dr. Warren discussed during the MAR court’s evidentiary

hearing the impact that the "Flynn effect" and the "practice

effect" may have had on Richardson’s I.Q. scores above 70,

the MAR court declined to adjust Richardson’s I.Q. scores on

the basis of those theories. 

For several reasons, we decline to disturb the MAR court’s

decision. First, adoption of the "Flynn effect" and the "practice effect" theories, and the corresponding adjustment of

Richardson’s I.Q. scores, would require us to engage in a de

novo review of the MAR court’s decision. Indeed, doing so

would require us to make our own factual findings. This is

precisely the result that is forbidden under AEDPA, which

requires deference and respect for a state court’s adjudication

of a claim on the merits. 

Second, Richardson does not cite to any North Carolina

law, nor could we find any such law, requiring courts to consider and apply the "Flynn effect" and the "practice effect."

To the contrary, N.C. Gen. Stat. § 15A-2005(a) sets forth an

I.Q. score threshold of 70 or below without mention of these

theories. If the North Carolina legislature had intended that

the state courts take these and other theories into account

when adjudicating mental retardation claims, the legislature

could have so provided in the statute. Thus, under the AEDPA

standard we apply in this case, we agree with the district

RICHARDSON v. BRANKER 39
court’s observation that "there is no requirement under N.C.

Gen. Stat. § 15A–2005 for a court to adjust a defendant’s I.Q.

scores downward for such factors." 769 F. Supp. 2d at 927;

see also Green v. Johnson, 515 F.3d 290, 300 n.2 (4th Cir.

2008) (applying Virginia law in reviewing habeas petition and

observing that "neither Atkins nor Virginia law appear to

require expressly that [the Flynn effect or the standard error

of measurement] be accounted for in determining mental

retardation status").26

26We observe that in Walker v. True, 399 F.3d 315, 322 (4th Cir. 2005)

(applying Virginia law), we held that the district court was required to

consider on remand the petitioner’s argument that his I.Q. score was influenced by the Flynn effect for purposes of his Atkins claim. This instruction, however, was a product of the unusual procedural posture of that

case. Walker had exhausted his potential post-conviction remedies in the

Virginia court system before the Supreme Court issued its decision in

Atkins. 399 F.3d at 318. Under the governing Virginia statute, Walker was

prohibited from filing any successive habeas petitions in the state courts

and his "sole remedy shall lie in federal court." 399 F.3d at 318-19 (citing

Va. Code § 8.01-654.2). Thus, Walker’s claim that he was mentally

retarded was never adjudicated on the merits by a state court. The claim

was brought in the first instance to the district court, which reviewed the

claim de novo. Id. The district court’s decision was premised on the Commonwealth’s motion to dismiss, and, accordingly, the district court was

obligated to assume all facts alleged in his habeas petition to be true. Id.

at 319; cf. Winston v. Kelly, 592 F.3d 535, 557 (4th Cir. 2010) (requiring

district court to consider Flynn effect on remand in case not arising under

AEDPA standard of review because the Virginia state courts did not

afford Winston an evidentiary hearing and thus "passed on the opportunity

to adjudicate [his] claim on a complete record"). 

By contrast, Richardson’s Atkins claim was fully raised in the MAR

court, which held an evidentiary hearing and received evidence concerning

the Flynn effect and the practice effect. The MAR court adjudicated his

claim on the merits, and, accordingly, we apply the significantly deferential review mandated by AEDPA to Richardson’s claim. Therefore, contrary to Richardson’s contention, our holdings in Walker and Winston do

not require us to overrule the MAR court’s determination that Richardson

is not mentally retarded under North Carolina law. See Winston, 592 F.3d

at 558 (observing that the Supreme Court of Virginia "was unconvinced

by Winston’s evidence concerning the Flynn effect and [the standard error

of measurement]" and opining that "a federal court sitting in habeas could

not conclude that such a holding violated [AEDPA]"). 

40 RICHARDSON v. BRANKER
Because we hold that the MAR court did not unreasonably

conclude that Richardson failed to establish "significantly

subaverage general intellectual functioning," we need not

address the MAR court’s conclusion concerning Richardson’s

failure to establish the other requirement of the statute, "significant limitations in adaptive functioning." N.C.G.S. § 15A2005(a)(1)(b). In sum, the MAR court’s denial of Richardson’s motion on the basis that he is not mentally retarded was

neither based on an unreasonable determination of the facts

nor is an unreasonable application of the Supreme Court’s

decision in Atkins. Accordingly, we affirm the district court’s

award of summary judgment in favor of the State with respect

to Richardson’s Atkins claim.

III.

In conclusion, we hold that the district court erred in granting the habeas petition on the ground that Richardson’s attorney on direct appeal rendered ineffective assistance of

counsel. We reverse this portion of the district court’s judgment. 

We also hold that the district court did not err in awarding

summary judgment to the State with respect to Richardson’s

Brady and Atkins claims. We affirm these portions of the district court’s judgment. Accordingly, we remand this case to

the district court with directions that Richardson’s federal

habeas petition be dismissed.

AFFIRMED IN PART, 

REVERSED IN PART, 

AND REMANDED

RICHARDSON v. BRANKER 41