UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BOBBY LEE HARRIS,

Petitioner-Appellant,

v.

No. 98-34

JAMES FRENCH, Warden, Central

Prison, Raleigh, North Carolina,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, Senior District Judge.

(CA-97-542-5-HC-BR)

Argued: June 8, 1999

Decided: July 14, 1999

Before ERVIN, HAMILTON, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Daniel Kanin Shatz, Durham, North Carolina, for Appellant. Edwin William Welch, Special Deputy Attorney General,

NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North

Carolina, for Appellee. ON BRIEF: Mark E. Edwards, Durham,

North Carolina, for Appellant. Michael F. Easley, Attorney General

of North Carolina, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

In 1992, following a trial by jury in North Carolina superior court,

Bobby Lee Harris was convicted of first-degree murder, robbery with

a dangerous weapon, second-degree burglary, larceny, and possession

of a stolen weapon. Harris was sentenced to death for his murder conviction and sentenced to 100 years imprisonment for the remaining

convictions. In 1994, Harris appealed his murder conviction and death

sentence to the North Carolina Supreme Court as a matter of right.

The North Carolina Supreme Court affirmed his conviction and sentence in a published opinion. See State v. Harris, 449 S.E.2d 371

(N.C. 1994). The United States Supreme Court denied certiorari on

May 1, 1995. See Harris v. North Carolina, 514 U.S. 1100 (1995).

Harris then sought post-conviction relief in the state courts of North

Carolina by initiating a motion for appropriate relief (MAR) in 1996.

The state superior court denied the MAR, and the North Carolina

Supreme Court denied Harris's subsequent petition for a writ of certiorari. Then, in 1997, Harris filed a habeas petition in the United

States District Court for the Eastern District of North Carolina. See

28 U.S.C.A. § 2254 (West Supp. 1999). The State of North Carolina1

responded by filing a motion for summary judgment, which the district court granted and dismissed the petition. Harris now appeals the

district court's judgment to this Court.

On appeal, Harris presents five issues: (1) whether the district court

erred in refusing to consider affidavits offered in support of the

habeas petition; (2) whether the district court erred in not allowing an

evidentiary hearing on claims of ineffective-assistance-of-trialcounsel; (3) whether the district court erred in not allowing an eviden-

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1 Harris named James French, Warden of the Central Prison, Raleigh,

North Carolina, where Harris is incarcerated, as Respondent. For ease of

reference we refer to French as "the State" or"North Carolina."

 2
tiary hearing on claims of ineffective assistance of appellate counsel;

(4) whether the district court erred in determining that the state

courts' denial of Harris's motion to suppress his confession constituted a reasonable application of Supreme Court precedent; and (5)

whether the district court erred in treating several issues not raised on

direct appeal as procedurally defaulted. For the reasons that follow,

we affirm.

I.

We take the undisputed facts of this case from the decision of the

North Carolina Supreme Court in State v. Harris , 449 S.E.2d 371,

373-74 (N.C. 1994):

 The evidence at trial tended to show that the defendant,

Bobby Lee Harris, and Joe Simpson were employed by the

victim, John Redd, in his fishing business. For several days,

the defendant and Simpson discussed the possibility of stealing the victim's truck and driving to Georgia. On the night

of 20 August 1991, the three men went fishing around 11:00

p.m. According to the defendant's confession, the plan was

for the defendant to restrain Redd while Simpson bound

him. They were then going to rob him and leave him on the

shore. The defendant, Simpson, and Redd had been drinking

during the evening and for whatever reason (the defendant

blamed Redd's "griping"), the defendant stabbed Redd with

Redd's knife rather than merely restraining him. Redd was

robbed of his wallet containing approximately $80.00 and of

his keys, then was either thrown from the boat or placed on

a pile of oyster shells. Shortly after dumping Redd, and as

the defendant and Simpson were returning to the dock

around 2:30 a.m., they were stopped by a game warden and

cited for traveling without running lights. After returning the

boat to its dock, the defendant and Simpson took the victim's truck, drove to the victim's house, used the victim's

keys and entered the house. They searched for and found the

victim's .12-gauge shotgun and a .22 pistol, both of which

they took. Taking some beer from the house, the two men

left the house and drove to Georgia. The defendant and

 3
Simpson surrendered to Georgia authorities on 23 August

1991 after learning of Redd's death.

 The victim was stabbed three times in the back. He was

found on a pile of oyster shells along Bear's Inlet around

6:15 a.m. He was transported to the Naval Hospital at Camp

Lejeune and died on the operating table around noon, but

not before identifying the defendant and Simpson as his

assailants. The cause of death was exsanguination, bleeding

to death. The victim's blood alcohol level was the equivalent of .263 on the breathalyzer test.

 . . . .

 [Harris] and Joe Simpson surrendered to the sheriff's

department of Haralson County, Georgia. Lt. Mack Whitney

of the Onslow County Sheriff's Department and three other

law enforcement officers went to Haralson County, Georgia,

to return the two men to North Carolina. On the morning of

27 August 1991, Lt. Whitney met the defendant at the

Haralson County Jail. Lt. Whitney fully advised the defendant of his rights pursuant to Miranda v. Arizona, 384 U.S.

436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant

said he wanted an attorney and no interrogation of the

defendant was had at that time. The defendant signed a form

acknowledging that he had been fully advised of and understood his rights. The defendant volunteered the information

that Mr. Redd's shotgun was at the home of Joe Simpson's

grandmother with whom the two men had been staying

while they were in Georgia. Lt. Whitney retrieved the shotgun and returned it to North Carolina.

 Lt. Whitney and an SBI agent brought the defendant and

Joe Simpson back to Jacksonville and put them in the Onslow County Jail on the evening of 27 August 1991. During

the evening, Sheriff Brown allowed the defendant's brother

to visit the defendant. The defendant's brother then came to

the sheriff's office and told the sheriff that the defendant

wanted to talk to him.

 4
 The sheriff had the defendant brought to his office at

approximately 11:20 p.m. on 27 August 1991. Those present

in the office with the sheriff and the defendant were Lt.

Whitney, the defendant's brother and his brother's wife. A

cassette tape was used to record the conference. The sheriff

began the conference by asking the defendant whether he

wanted to come and talk to him in regard to what had happened and the defendant answered that he wanted to do so.

The defendant started to make a statement and Sheriff

Brown then interrupted him and again advised him of his

rights under Miranda except he did not advise him that he

could stop answering questions at any time. The sheriff also

did not ask the defendant, "[d]o you want a lawyer now?"

The defendant then made an incriminating statement.

On May 14, 1992, an Onslow County, North Carolina superior

court jury convicted Bobby Lee Harris of first-degree murder, robbery

with a dangerous weapon, second-degree burglary, larceny, and possession of a stolen weapon. Prior to the sentencing phase of the trial,

Harris's lead trial counsel, Timothy E. Merritt, was allowed to withdraw after being diagnosed with terminal bone marrow cancer. He

was soon replaced by a new lead counsel, Charles H. Henry. See

Harris, 449 S.E.2d at 376. The assisting defense counsel, Charles K.

Medlin, continued representing Harris. On July 2, 1992, before the

sentencing hearing took place, Medlin filed a motion for appropriate

relief (1992 MAR) in the superior court on Harris's behalf arguing

that Merritt's medical condition had prevented him from effectively

representing Harris during the guilt phase of the trial. The superior

court judge denied the 1992 MAR on July 10, 1992.

Because of the delay caused by the withdrawal and replacement of

Merritt, the sentencing proceedings did not begin until July 13, 1992.

Rather than retain the guilt-phase jury for sentencing, the superior

court empaneled a new jury. After deliberating, the jury recommended that Harris be sentenced to death. The trial judge followed the

jury's recommendation and sentenced Harris to death for first-degree

murder and 100 years for the other offenses. Pursuant to N.C. Gen.

Stat. § 7A-27(a) (Michie 1995), Harris appealed the first-degree murder conviction and death sentence to the North Carolina Supreme

Court as a matter of right.

 5
On November 3, 1994, the North Carolina Supreme Court affirmed

Harris's death sentence. See Harris, 449 S.E.2d at 388. The North

Carolina Supreme Court also affirmed the superior court's denial of

Harris's 1992 MAR, but noted that Harris could make another motion

for appropriate relief under N.C. Gen. Stat. § 15A-1415 (Michie

1997), and present any additional evidence of ineffective assistance

of counsel therein. See Harris, 449 S.E.2d at 375-77.

The superior court appointed new counsel to represent Harris in his

post-conviction proceedings. On January 16, 1996, Harris's newly

appointed counsel filed a second MAR (1996 MAR) in the superior

court, which was denied without a hearing on July 8, 1996. Harris

then filed a petition for a writ of certiorari with the North Carolina

Supreme Court asking for a review of the superior court's denial. The

North Carolina Supreme Court denied the writ of certiorari on March

26, 1997. See State v. Harris, 483 S.E.2d 714 (N.C. 1997).

Harris next filed a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina on July 11, 1997.

In his federal habeas petition, Harris made fifteen different claims.

Harris's claims included, inter alia, that his Confrontation Clause

right was violated, that he was denied his Sixth Amendment right to

effective assistance of counsel both at trial and on appeal, that his

Fifth Amendment right to counsel was violated, and that he was

denied a fair and impartial jury in violation of the Sixth Amendment.

The district court granted summary judgment to the State and dismissed the petition, finding that several claims were procedurally

defaulted and that the remaining questions did not merit relief. After

the district court granted the State's motion for summary judgment,

Harris filed a motion in the district court to alter judgment under Federal Rule of Civil Procedure 59(e), claiming that the district court

improperly held several of Harris's claims as procedurally defaulted.

The district court denied the motion to alter judgment on November

3, 1998. Harris then filed a notice of appeal with this Court and

received a certificate of appealability from the district court.

On appeal, Harris presents five issues: (1) whether the district court

erred in refusing to consider affidavits offered in support of the

habeas petition; (2) whether the district court erred in not allowing an

evidentiary hearing on claims of ineffective assistance of trial coun-

 6
sel; (3) whether the district court erred in not allowing an evidentiary

hearing on claims of ineffective assistance of appellate counsel; (4)

whether the district court erred in determining that the state courts'

denial of Harris's motion to suppress his confession constituted a reasonable application of Supreme Court precedent; and (5) whether the

district court erred in treating several issues not raised on direct

appeal as procedurally defaulted.

II.

Before we address Harris's claims, we must delineate the applicable standards of review for legal questions addressed by the state

courts. Because Harris filed his federal habeas petition after enactment of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), the AEDPA's deferential standards of review apply to the

claims already adjudicated on the merits by the state courts.2 The

AEDPA provides:

 An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim --

 (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.

28 U.S.C.A. § 2254(d) (West Supp. 1999). We recently interpreted

subsection (1) to prohibit the issuance of the writ unless (a) the state

court decision is in "square conflict" with Supreme Court precedent

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2 The writ was filed on July 11, 1997, after April 26, 1996, the effective

date of the AEDPA. See Lindh v. Murphy, 117 S. Ct. 2059 (1997).

 7
which is controlling as to law and fact or (b) if no such controlling

decision exists, "the state court's resolution of a question of pure law

rests upon an objectively unreasonable derivation of legal principles

from the relevant [S]upreme [C]ourt precedents, or if its decision rests

upon an objectively unreasonable application of established principles

to new facts." Green v. French, 143 F.3d 865, 870 (4th Cir. 1998),

cert. denied, 119 S. Ct. 844 (1999). "In other words, habeas relief is

authorized only when the state courts have decided the question by

interpreting or applying the relevant precedent in a manner that reasonable jurists would all agree is unreasonable." Id. We now turn to

the merits of Harris's claims.

A.

Harris first claims that the federal district court erred by refusing

to consider affidavits filed in support of his habeas petition. At issue

are two affidavits, one from the lawyer representing Harris at trial and

on appeal, Charles Medlin, and one from Harris himself. These affidavits were not submitted to the state courts in either the 1992 MAR

or the 1996 MAR. Instead, they were prepared in anticipation of the

federal habeas proceeding and submitted with the petition. The federal district court refused to consider the affidavits because they

"were never submitted on the State level" and"cannot now be considered." (J.A. at 539.)

This Court recently addressed the question of when a federal

habeas court may consider additional evidence that was not presented

in a state collateral relief proceeding. In Wilson v. Moore, 1999 WL

330282 (4th Cir. May 25, 1999), we noted that "a federal habeas

applicant must develop the factual basis for a claim in state court to

`accommodate concerns of finality, comity, judicial economy, and

channeling the resolution of claims into the most appropriate forum.'"

Id. at *4 (quoting Keeney v. Tamayo-Reyes , 504 U.S. 1, 8 (1992)). In

order to preserve these ends, we treat the unexcused omission of evidentiary materials in state court proceedings in the same manner that

we treat the unexcused omission of claims in state court proceedings

-- we apply the doctrine of procedural default. See Wilson, 1999 WL

330282 at *4.

Under the doctrine of procedural default, a federal court may not

consider the merits of claims on federal habeas review if they were

 8
defaulted under an independent and adequate state procedural rule

applied by the state courts unless the prisoner can demonstrate cause

for the default and prejudice resulting therefrom, or can demonstrate

that a failure to consider the claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 731-32,

750 (1991). A state rule is adequate if it is regularly or consistently

applied by the state court, see Johnson v. Mississippi, 486 U.S. 578,

587 (1988), and is independent if it does not "depend[ ] on a federal

constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75 (1985).

In Harris's 1996 MAR proceeding, the superior court dismissed

Harris's allegations of ineffective assistance of counsel at both the

sentencing and guilt phase of his trial because they were not supported by evidence as required by N.C. Gen. Stat.§ 15A 1420(b)(1)

(Michie 1997).3 The superior court thus asserted a state procedural

rule barring consideration of the claim for failure to introduce statutorily required evidence. Harris argues that § 15A-1420(b)(1) was not

an adequate4 rule under the doctrine of procedural default because

other North Carolina courts have routinely allowed a verified MAR

to serve as sufficient evidence under § 15A-1420(b)(1).

At the outset, we note that the affidavits in question were never

presented in the state courts -- the state jurists never had an opportunity to accept or reject them. And, as we explain, we simply do not

accept the notion that a verified MAR is interchangeable with an affidavit in this context.5 North Carolina law compels this position. In

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3 Section 15A-1420(b)(1) reads as follows:

A motion for appropriate relief made after the entry of judgment

must be supported by affidavit or other documentary evidence if

based upon the existence or occurrence of facts which are not

ascertainable from the records and any transcript of the case or

which are not within the knowledge of the judge who hears the

motion.

N.C. Gen. Stat. § 15A-1420(b)(1) (Michie 1997).

4 Harris does not contend that N.C. Gen. Stat. § 15A-1420(b)(1)

depends upon a federal constitutional ruling, resulting in a lack of independence.

5 We note Harris's citation of Schoolfield v. Collins, 189 S.E.2d 208,

213 (N.C. 1972), which stated that verified pleadings could be treated as

 9
rejecting certain of Harris's claims, the superior court relied upon

N.C. Gen. Stat. § 15A-1420(b)(1), which requires that a MAR be supported by an affidavit or other documentary evidence if it relies upon

facts outside of the record or the knowledge of the court. See N.C.

Gen. Stat. § 15A-1420(b)(1). Two North Carolina cases have made it

clear that mere allegations lacking independent support are insufficient to sustain a MAR under § 15A-1420(b)(1). See State v. Payne,

325 S.E.2d 205, 219 (N.C. 1985); State v. Ware , 482 S.E.2d 14, 16

(N.C. App. 1997). The contents of MARs and independent supporting

affidavits are not treated as interchangeable by the state courts in the

context of § 15A-1420(b)(1).6 Based upon this analysis, we conclude

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an affidavit. The simple distinction between the present case and

Schoolfield is that in the latter case the North Carolina Supreme Court

was interpreting a different procedural rule under North Carolina law that

specifically allowed pleadings as well as affidavits to suffice as support

for material facts. See id. Furthermore, the North Carolina Supreme

Court emphasized the fact that all of the factual assertions in the pleading

at issue were within the personal knowledge of the person verifying the

pleading. See id. It is certainly within the purview of the state courts to

interpret individual state statutes and procedural rules as they see fit and,

as we explain in the text that follows, we believe that the state courts

have not treated affidavits and verified pleadings interchangeably in the

context of N.C. Gen. Stat. § 15A-1420(b)(1) (Michie 1997).

6 Harris presents two cases from North Carolina to support his argument that the state courts, as a matter of course, accept verified MARs

as sufficient to satisfy the requirements of N.C. Gen. Stat. § 15A1420(b)(1) (Michie 1999). After reviewing these cases, we do not agree.

In State v. Taylor, 393 S.E.2d 801 (N.C. 1990), petitioner presented his

ineffective-assistance-of-appellate-counsel claims in a MAR, but the

petitioner's previous lawyer claimed attorney-client privilege to protect

other documentary evidence, thus effectively preventing the presentation

of affidavits or other documentary evidence. Taylor presented unusual

circumstances not present in this case. In the second case cited by Harris,

State v. McDowell, 310 S.E.2d 301 (N.C. 1984), it is not clear exactly

what evidence was presented in the MAR or whether any additional evidence outside of the factual record was necessary to decide the question.

Because of an allegation of newly discovered evidence, the trial court

did, however, allow an evidentiary hearing, which provided support for

the claims. Neither of these cases squarely addressed the issue of what

evidence is required under § 15A-1420(b)(1). Moreover, even if we

 10
that the refusal to consider facts contained in the 1996 MAR was supported by a consistent application of § 15A-1420(b)(1). The state procedural rule is therefore adequate.

Having concluded that the evidence presented to the federal habeas

court was not submitted to the state courts, and thus the state courts

declined review on the merits, we must now determine whether a fundamental miscarriage of justice or cause and prejudice excuse the

omission. "Cause exists . . . where the factual or legal basis for the

claim was not reasonably available to the claimant at the time of the

state proceeding." Roach v. Angelone, 1999 WL 270014, *10 (4th Cir.

May 4, 1999). Harris makes no argument that he could not have

obtained the affidavits prior to his state MAR proceeding, and the reason is apparent: he and his former counsel were the affiants. Furthermore, Harris makes no argument that failing to consider the affidavits

would result in a fundamental miscarriage of justice. Accordingly, we

conclude that the district court properly refused to consider the supporting affidavits.

B.

Harris next contends that he "was entitled to an evidentiary hearing

on his claims of ineffective assistance of counsel at trial." (Appellant's Br. at 2.) According to Harris, the district court should have

embarked upon a factual investigation of his trial counsels' performance because his federal habeas petition made sufficient allegations

of substandard performance that resulted in prejudice, thus satisfying

the standard for constitutionally ineffective assistance of counsel

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

Harris contends that his trial counsel provided ineffective assistance

for the following reasons: (1) counsels' trial strategy was doomed to

fail as a matter of North Carolina law; (2) counsel ineptly examined

the victim's treating physician; (3) counsel failed to object to the

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believed that the state courts had allowed exceptions to § 15A1420(b)(1), we have held that state courts need not show an unwavering

adherence to a state procedural rule to demonstrate that it is firmly established. Cf. Weeks v. Angelone, 1999 WL 288504 at *19 (4th Cir. May 10,

1999).

 11
admission of a dying declaration; and (4) counsel failed to properly

utilize a psychological expert.

Due to concerns about comity and federalism, it is well-established

that a habeas petitioner is entitled to an evidentiary hearing only if the

fact-finding process in the state courts was significantly deficient

through no fault of the habeas petitioner. See, e.g., Keeney v. TamayoReyes, 504 U.S. 1, 5-9 (1992); Townsend v. Sain, 372 U.S. 293, 313

(1963), overruled in part by Tamayo-Reyes, 504 U.S. at 5-9;

Fitzgerald v. Greene, 150 F.3d 357, 369 (4th Cir. 1998); 1 James S.

Liebman & Randy Hertz, Federal Habeas Corpus Practice and

Procedure § 20.2b at 742 (3d ed. 1998). The AEDPA restricts a federal court from holding an evidentiary hearing in the following circumstances:

If the applicant has failed to develop the factual basis of a

claim in State court proceedings, the court shall not hold an

evidentiary hearing on the claim unless the applicant shows

that--

 (A) the claim relies on--

 (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable; or

 (ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

 (B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found

the applicant guilty of the underlying offense.

28 U.S.C.A. § 2254(e)(2) (West Supp. 1999). We have interpreted

"failed" to mean an omission on the part of a habeas petitioner. See

Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir.), cert. denied, 119

S. Ct. 587 (1998). Thus, if a state court refuses to allow factual devel-

 12
opment of a claim despite the diligent efforts of a habeas petitioner,

we will not consider it a failure on the part of the petitioner and will

not preclude an evidentiary hearing based upon § 2254(e)(2). See id.

at 337.

As an initial matter, we find unpersuasive Harris's incorporation of

his argument in part A. of this opinion. In an attempt to fend off the

application of § 2254(e), Harris contends that the state courts improperly disregarded the substance of his allegations in the 1996 MAR

application, resulting in a refusal by the state courts to allow factual

development. The superior court's behavior, however, does not demonstrate a deficiency in the state court fact-finding process or a refusal

by the state to allow the development of the factual record. The superior court simply followed precedent previously established by the

North Carolina Supreme Court in finding the verified MAR insufficient. See Payne, 325 S.E.2d at 219. We will not eviscerate state court

fact finding by arbitrarily reopening matters upon federal habeas

review. See Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (noting that

federal courts must protect "the state trial on the merits [as] the `main

event,' so to speak, rather than a `tryout on the road' for what will

later be a determinative federal habeas hearing"). Harris's argument

does not defeat the application of § 2254(e).

We now address the merits of Harris's request for an evidentiary

hearing. Because our reasoning regarding the alleged deficiency in

trial strategy and the handling of the psychological expert differs

somewhat from our reasoning regarding the examination of the victim's treating physician and the failure to object to the dying declaration, we will analyze the appropriateness of an evidentiary hearing on

these issues in two parts.

1.

In Harris's 1992 MAR, which was reviewed by the North Carolina

Supreme Court on direct appeal, he argued that his trial counsel was

ineffective because the trial strategy was fundamentally flawed and

counsel failed to make appropriate use of a psychological expert. See

Harris, 449 S.E.2d at 376-77. Harris attributed these shortcomings to

the lack of cooperation between, and inattention of, trial counsel. The

superior court denied the 1992 MAR as did the North Carolina

 13
Supreme Court. See id. Harris also made other claims of ineffective

assistance of counsel, but failed to support them with any evidence.

See id. In its decision denying the claims, the North Carolina Supreme

Court stated that Harris could make claims of ineffectiveness of counsel in a subsequent MAR and submit evidence. See id. Harris's postconviction counsel followed at least part of this advice.

In his 1996 MAR, Harris again argued, as he does to this Court,

that his trial counsel were ineffective, at least in part, because of poor

cooperation and planning, which had a particularly adverse affect on

trial strategy and the use of a psychological expert retained by the

defense. The out-of-court activities of Harris's trial counsel are not

readily ascertainable from trial records and, under North Carolina

law, the allegations must be supported by documentary evidence such

as an affidavit. See N.C. Gen. Stat. § 15A-1420(b)(1) ("A motion for

appropriate relief made after the entry of judgment must be supported

by affidavit or other documentary evidence if based upon the existence or occurrence of facts which are not ascertainable from the

records and any transcript of the case or which are not within the

knowledge of the judge who hears the motion."). In its order denying

the 1996 MAR, the superior court noted that Harris"had not presented any additional evidence supported by affidavit which would

demonstrate ineffective assistance of [trial] counsel." (J.A. at 166

(internal quotation marks omitted).) In other words, Harris had not

presented supporting evidence as the North Carolina Supreme Court

suggested on direct appeal or as required by statute.

Because Harris did not submit the necessary factual support for

these claims to the state courts, we find that he failed "to develop the

factual basis of a claim in State court proceedings."7 28 U.S.C.A.

§ 2254(e)(2). Therefore, a federal court may not entertain an evidentiary hearing on these matters unless Harris can establish (1) either that

the claim relies on a new rule of constitutional law retroactively

applied or that the claim relies on facts that could not have been discovered through due diligence, and (2) that the underlying facts are

sufficient to establish by clear and convincing evidence that absent

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7 If the facts had been fully developed in the state court, then there

would, of course, be no reason to hold an evidentiary hearing at the district court.

 14
constitutional error, no reasonable fact finder would have found the

petitioner guilty. See 28 U.S.C.A. § 2254(e)(2). Harris's claim does

not meet these criteria.

First, Harris argues no new rule of constitutional law. Second, the

facts presented to support the claims of ineffective assistance of trial

counsel were within the personal knowledge of both Harris and one

of his trial counsel and thus readily available upon an exercise of due

diligence at the time of his 1996 MAR. Because Harris failed to

develop the factual record in state court and the circumstances do not

fall within the narrow exceptions allowed by § 2254(e)(2), the district

court was prohibited from holding an evidentiary hearing on these

issues.

2.

The remaining ineffective-assistance-of-trial-counsel claims lodged

by Harris also do not merit an evidentiary hearing, but for slightly different reasons. Unlike the claims discussed in part B.1., trial counsel's

performance during the examination of the victim's treating physician

and during the introduction of the victim's dying declaration are matters of record. Therefore, under § 15A-1420(b)(1), the claims need

not be supported by affidavit or other documentary evidence. See

N.C. Gen. Stat. 15A-1420(b)(1) (stating that other evidence need be

presented only if facts "are not ascertainable from the records or any

transcript of the case"). The claims were fully developed in the state

courts and § 2254(e) is not implicated.

Although § 2254(e) does not prohibit an evidentiary hearing, Harris

is still not entitled to an evidentiary hearing unless he can show that

the fact-finding process in the state courts was significantly deficient

through no fault of the habeas petitioner. See, e.g., Fitzgerald, 150

F.3d at 369 (stating that a habeas petitioner is"entitled to an evidentiary hearing only if the state court fact-finding process was deficient

in some significant respect" (internal quotation marks omitted)). As

to these ineffective-assistance-of-counsel claims, Harris makes no

such suggestion, nor does he allege that any extra-record facts would

bolster his claims. Because Harris fails to make a showing that he is

entitled to an evidentiary hearing on these claims, we conclude that

the district court properly refused to grant one.

 15
In sum, the district court properly denied Harris's request for an

evidentiary hearing. Under § 2254(e)(2), we are prohibited from

allowing an evidentiary hearing in federal court to flesh out previously available factual support for habeas claims when Harris failed

to do so in the state courts. Moreover, Harris is not entitled to an evidentiary hearing on his factually developed ineffective-assistance-ofcounsel claims because he failed to show a significant deficiency in

the state court fact-finding process.8 

C.

Harris next contends that he "was entitled to an evidentiary hearing

on his claims of ineffective assistance on direct appeal." (Appellant's

Br. at 2.) Underlying this request is Harris's contention that his state

appellate counsel were ineffective because they failed to raise meritorious issues on appeal. Harris specifically asserts that the following

issues should have been raised: (1) Harris was unable to confront the

victim's treating doctor during the doctor's testimony in violation of

Harris's rights under the United States and North Carolina constitutions; (2) Harris was subjected to double jeopardy in violation of the

United States Constitution and North Carolina law because the guiltphase jury was dismissed and a new jury empaneled for the sentencing phase; (3) Harris's trial counsel admitted Harris's guilt without

Harris's authorization in violation of his rights under North Carolina

law; and (4) Harris's right under the United States Constitution to a

fair and impartial jury was violated by the service of the superior

court judge's secretary on the trial jury. Here again, Harris requests

only that we grant an evidentiary hearing to provide a forum to establish the factual basis for his claims. Accordingly, we turn to the relevant standards for the grant of an evidentiary hearing.

As we explained in part B., a habeas petitioner is entitled to an evidentiary hearing only if the fact-finding process in the state courts

_________________________________________________________________

8 Harris's only request for relief on this issue is an evidentiary hearing

by the district court. Even if we were to construe Harris's brief to request

a substantive review of his claims of ineffective assistance of trial counsel and ignore any procedural infirmities, we would agree with the opinion of the district court, which held that the substance of Harris's

ineffective-assistance-of-trial-counsel claims did not merit relief.

 16
was significantly deficient through no fault of the habeas petitioner.

See, e.g., Keeney v. Tamayo-Reyes, 504 U.S. 1, 4-9 (1992); Townsend

v. Sain, 372 U.S. 293, 313 (1963), overruled in part by TamayoReyes, 504 U.S. at 4-9; Fitzgerald v. Greene , 150 F.3d 357, 369 (4th

Cir. 1998); 1 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 20.2b at 742 (3d ed. 1998). As we

noted in part B., the AEDPA restricts a federal court from holding an

evidentiary hearing if the petitioner has failed to develop the factual

basis of a claim in the state courts unless: (1) the claim is based on

a new rule of constitutional law retroactively applicable or relies on

facts not available through an exercise of diligence; and (2) the facts

provide clear and convincing evidence that the petitioner would not

have been found guilty absent constitutional error. See 28 U.S.C.A.

§ 2254(e)(2). Again, we have interpreted "failed" to mean an omission on the part of a habeas petitioner, and thus if a state court refuses

to allow factual development despite the diligent efforts of a habeas

petitioner, then we will not consider it a failure on the part of the petitioner, and we will not preclude an evidentiary hearing based upon

§ 2254(e)(2). See Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir.),

cert. denied, 119 S. Ct. 587 (1998).

In the circumstances presented by this appeal, we find no merit in

Harris's request for an evidentiary hearing. Harris does not argue that

there was any significant deficiency in the state courts' fact-finding

process and does not contend that the state courts refused to allow

him to develop the record. Furthermore, Harris points to no facts outside of the record that even would benefit from further factual investigation by a federal habeas court. Finally, the claims before the district

court were fully presented, and we have never held that a federal

habeas court is required to hold an evidentiary hearing on such

ineffective-assistance-of-appellate-counsel claims. See Eaton v.

Angelone, 139 F.3d 990, 995 (4th Cir.), cert. denied, 118 S. Ct. 2338

(1998). Because Harris has not shown any entitlement to an evidentiary hearing, we need not address whether such a hearing would be

prohibited under § 2254(e)(2). Harris's request for an evidentiary

hearing does not meet the narrow standards that are set forth above.

Accordingly, we conclude that the district court properly refused to

grant an evidentiary hearing on these issues.

Even if we were most liberally to construe Harris's petition as a

request for us to review the substance of his ineffective-assistance-of-

 17
appellate-counsel claims on the merits, we would affirm the district

court. To violate the Sixth Amendment right to counsel as defined by

the Supreme Court's holding in Strickland, a counsel's performance

must fall outside of the wide range of reasonable assistance and result

in such prejudice as to undermine confidence in the outcome of the

proceedings. See Fitzgerald, 150 F.3d at 368; cf. Strickler v. Greene,

1999 WL 392982, at *14 (U.S. June 17, 1999) (setting forth the "undermine confidence" standard as appropriate for judging prejudice in

a procedural default analysis). Appellate counsel is thus given significant latitude to develop a strategy that may omit meritorious claims

in order to avoid burying issues in a legal jungle. See Griffin v. Aiken,

775 F.2d 1226, 1235 (4th Cir. 1985). "[W]innowing out weaker arguments on appeal and focusing on those more likely to prevail, far

from evidence of incompetence, is the hallmark of effective appellate

advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (internal quotation marks omitted). The standard is therefore not what later counsel

or courts with the benefit of hindsight believe should have been

accomplished in earlier proceedings, but instead whether counsel at

the time acted within the liberal bounds of competent representation.

After reviewing the facts presented to this Court, we agree with the

district court's conclusion that "it cannot be said that the performance

of appellate counsel fell below the standards for effective assistance

as stated in Strickland." (J.A. at 541.) Furthermore, assuming

arguendo that counsel was ineffective, we conclude that Harris suffered no prejudice because the unpresented claims fall well short of

the degree necessary to undermine confidence in the proceeding.9

Having made this judgment after an independent review of the law

and facts, we are confident that the state court's determination that

Harris's appellate counsel was not deficient and that Harris suffered

no prejudice, fell easily within the parameters of decisions that we

must not disturb pursuant to the mandate of 28 U.S.C.A. § 2254(d).

_________________________________________________________________

9 In short, we believe that the unpresented claims had little merit and

that it is, at best, unlikely that an appellate court would have granted

relief on the merits of these claims had counsel presented them on direct

appeal. Counsel's failure to present them on appeal, therefore, in no way

undermines our confidence in the proceeding.

 18
D.

Harris next claims that the district court erred in finding that the

admission of his confession did not violate his Fifth Amendment

rights as safeguarded through Miranda v. Arizona , 384 U.S. 436

(1966), and its progeny. Because this claim was adjudicated on the

merits by the state courts, we review their holding to determine only

whether it was contrary to established Supreme Court precedent, was

an unreasonable derivation of controlling Supreme Court precedent,

or an unreasonable application of Supreme Court precedent to a new

set of facts. See 28 U.S.C.A. § 2254(d); Fitzgerald v. Greene, 150

F.3d 357, 362 (4th Cir. 1998).

When Harris was first interviewed by law enforcement authorities,

he was apprised of his Miranda rights and exercised them by declining further discussion absent the presence of counsel. See Harris, 449

S.E.2d at 374. After talking with his brother approximately twelve

hours later, Harris, on his own initiative, requested to speak with law

enforcement authorities again. See id. After being brought to the sheriff's office pursuant to his own request, Harris began making a confession. The sheriff interrupted him and again reminded him of his

Miranda rights, although the sheriff failed to inform Harris that he

could discontinue questioning at any time and also did not tell Harris

that he could have an attorney immediately. Harris contends that the

voluntary reinitiation of communication with law enforcement absent

full and fresh Miranda warnings and the immediate availability of an

attorney did not satisfy the standards under Miranda and Edwards v.

Arizona, 451 U.S. 477 (1981). Instead, Harris contends that absent a

reinstruction regarding his right to discontinue questioning at any

time and the right to have an attorney's immediate presence, the confession could not have been voluntary under Supreme Court precedent.

The North Carolina Supreme Court addressed this issue in its

review of the case and stated:

There is no reason to believe the defendant, having been

fully and properly advised of his Miranda rights approximately twelve hours before his interview with Sheriff

Brown, had forgotten them. Certainly he should have known

 19
of his right to an attorney before he could be interrogated by

the officers for he had exercised his right on that day. It was

not necessary for Sheriff Brown to advise the defendant

again of his rights under Miranda.

Harris, 449 S.E.2d at 375. A review of controlling United States

Supreme Court precedent reveals that this analysis was a quite reasonable interpretation of the law and application to the facts at hand.

The United States Supreme Court's explication of the Fifth

Amendment in Miranda controls the admissibility of custodial confessions in state courts based upon whether the defendant was

apprised of certain constitutional rights, therefore safeguarding the

voluntariness of confessions. See Miranda v. Arizona, 384 U.S. 436,

444-45 (1966). In Edwards v. Arizona, 451 U.S. 477 (1981), the

Supreme Court discussed the manner in which a defendant who had

asserted his Fifth Amendment right to have counsel present could

effectively withdraw that assertion:

[W]e now hold that when an accused has invoked his right

to have counsel present during custodial interrogation, a

valid waiver of that right cannot be established by showing

only that he responded to further police-initiated custodial

interrogation even if he has been advised of his rights. We

further hold that an accused, such as Edwards, having

expressed his desire to deal with the police only through

counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless

the accused himself initiates further communication,

exchanges, or conversations with the police.

Id. at 484-85 (footnote omitted). Later, in Oregon v. Bradshaw, 462

U.S. 1039 (1983) (plurality opinion), the Supreme Court explained

that a valid waiver of the right to counsel and the right to silence

depends upon "whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances,

including the necessary fact that the accused, not the police, reopened

the dialogue with the authorities." Id. at 1046 (internal quotation

marks omitted). The Supreme Court continued, "As we have said

many times before, this determination depends upon the particular

 20
facts and circumstances surrounding the case, including the background, experience, and conduct of the accused." Id. (internal quotation marks omitted). Thus, whether Harris's Fifth Amendment rights

were violated depends upon whether he was informed of his rights in

accordance with Miranda, whether he withdrew any assertion of those

rights by voluntarily initiating a conversation with law enforcement,

and whether he waived his rights in light of the totality of the circumstances.

In this case, there is no debate as to whether Harris received the

requisite warnings under Miranda on the same day he confessed.

Moreover, there is no dispute that it was Harris, and not law enforcement, that initiated the discussion following his earlier request to have

counsel present. Finally, Harris was again informed of his Miranda

rights only twelve hours after originally hearing them and exercising

them.10 Under these circumstances, Harris clearly made a knowing

and intelligent waiver of his Fifth Amendment right to be free from

compelled self-incrimination. In our judgment, these occurrences evidence that the circumstances of Harris's confession did not violate

Miranda or its progeny. The North Carolina Supreme Court's judgment on this point was well within the narrow bounds of review mandated by § 2254(d), and we affirm the district court on this point.

E.

Harris finally claims that the district court erred in treating several

issues as procedurally defaulted. Specifically, Harris asserts that the

following claims were improperly treated as procedurally defaulted:

(1) that the service of the trial judge's secretary on the jury deprived

Harris of his Sixth Amendment right to an impartial jury; (2) that Harris's absence at a videotaped examination of the victim's treating physician violated Harris's Confrontation Clause rights; and (3) that his

trial counsel was constitutionally ineffective for failing to raise a

timely claim that Harris's Double Jeopardy Clause rights were vio-

_________________________________________________________________

10 The mere passage of time between the original Miranda warnings

and a confession generally does not taint a confession. See United States

v. Frankson, 83 F.3d 79, 83 (4th Cir. 1996). Therefore, even if the sheriff

had not repeated the Miranda warnings, there would not be any violation

of Harris's Fifth Amendment rights.

 21
lated because a new jury was empaneled for the sentencing portion of

the trial.

This Court may not review claims in a federal habeas petition if

they have been defaulted under an independent and adequate state

procedural rule as applied by the state courts unless the habeas petitioner can demonstrate cause for the default and prejudice resulting

therefrom, or demonstrate that a failure to consider the claims will

result in a fundamental miscarriage of justice. See Coleman v.

Thompson, 501 U.S. 722, 731-32, 750 (1991). A state rule is adequate

if it is regularly or consistently applied by the state court, see Johnson

v. Mississippi, 486 U.S. 578, 587 (1988), and is independent if it does

not "depend[ ] on a federal constitutional ruling," Ake v. Oklahoma,

470 U.S. 68, 75 (1985).

The district court determined that these issues were procedurally

defaulted based upon the superior court's finding during the 1996

MAR proceeding that the issues were barred from review under

§ 15A-1419(a)(3) (Michie 1997). Section 15A-1419(a)(3) states that

a MAR may be denied if "[u]pon a previous appeal the defendant was

in a position to adequately raise the ground or issue underlying the

present motion but did not do so." N.C. Gen. Stat. § 15A-1419(a)(3).

It is undisputed that on direct appeal Harris failed to raise the issue

of the superior court judge's secretary's service on the trial jury or the

fact that Harris did not attend the out-of-court examination of the victim's physician.

We have previously determined § 15A-1419(a)(3) to be an adequate and independent ground, and Harris does not argue otherwise.

See Williams v. French, 146 F.3d 203, 210 (4th Cir. 1998), cert.

denied, 119 S. Ct. 1061 (1999). Instead, Harris argues that ineffective

assistance of counsel on appeal constitutes sufficient cause to excuse

the default. Although he does not say, we presume that Harris claims

the resulting prejudice to be the loss of winning issues on appeal.

Because we conclude that two of Harris's claims were properly

treated as procedurally defaulted, but the third was not, we address

this issue in two parts.

 22
1.

We first address Harris's position that this Court should review the

merits of his Sixth Amendment right to an impartial jury claim and

his Confrontation Clause claim because ineffective assistance of his

appellate counsel constitutes adequate cause to excuse his failure to

raise the claims on direct appeal.

Constitutionally ineffective counsel is among the recognized factors for establishing cause for default. See Williams, 146 F.3d at 209-

10. Before ineffective assistance of counsel can be presented as cause

for procedural default in a federal habeas proceeding, however, the

ineffectiveness claim must first be presented to the state courts as an

independent claim. See id. at 210 n.9. If the ineffective-assistance-ofcounsel claim is properly presented to the state courts, then it can be

evaluated as a source of cause for procedural default in a federal

habeas proceeding. In order to constitute cause for procedural default,

counsel's conduct must have constituted ineffective assistance of

counsel under the United States Constitution -- i.e., the Strickland

standard. See id. at 210. Upon a finding that the counsel's representation is in fact constitutionally ineffective, then that conduct is imputed

to the state and it can establish causation for the procedural default.

See id. Because Harris raised the ineffectiveness-of-appellate-counsel

claims before the state courts, we may evaluate them as a potential

source of cause for procedural default.

Whether Harris's counsel were in fact constitutionally ineffective

on appeal, depends upon an evaluation of their conduct in accordance

with the Strickland standard. As we stated in part C., however, we

have determined that appellate counsel were not ineffective for failing

to present claims for violations of Harris's Confrontation Clause

rights or the Sixth Amendment right to an impartial jury. Because we

have concluded that Harris's appellate counsel were not constitutionally ineffective, ineffective assistance of counsel cannot constitute

sufficient cause for procedural default, and we must affirm the grant

of summary judgment to the State on this issue. 11

_________________________________________________________________

11 We also note that Harris's substantive claims do not merit relief. Neither his claim that the service of the trial judge's secretary on the jury

 23
2.

We now come to Harris's claim that his allegation of ineffective

assistance of trial counsel for failing to object to the empaneling of

a new jury during the sentencing phase of the trial should not have

been treated by the district court as procedurally defaulted.

We agree, but not for the reason advanced by Harris. As both parties inexplicably fail to mention, it is improper to treat an ineffectiveassistance-of-trial-counsel claim as procedurally defaulted under

§ 15A-1419(a)(3) because North Carolina does not require

ineffective-assistance-of-counsel claims to be raised on direct appeal.

See State v. Sneed, 201 S.E.2d 867, 871 (N.C. 1974) ("Our research

discloses that the majority of the decisions relating to the alleged failure of counsel to render effective representation arises out of postconviction proceedings."); State v. Dockery , 336 S.E.2d 719, 721

(N.C. App. 1985) ("The accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than

direct appeal."). Because this claim was improperly treated as procedurally defaulted by the district court, we will review its merits.

Before embarking on a review of the merits, we note that the superior court alternatively held that "the alleged deficiencies in counsel's

representation did not prejudice the defendant." (J.A. at 167.) Because

this claim was adjudicated on the merits by the state courts, we apply

the standards of review contained in the AEDPA and review the state

court holding only to determine whether it was contrary to established

_________________________________________________________________

deprived him of his Sixth Amendment right to an impartial jury, nor his

claim that the videotaped examination of the victim's treating physician

violated his Confrontation Clause rights, violated Harris's constitutional

rights. Based upon our review of the facts and the applicable law, we

determine that Harris effectively waived his Confrontation Clause right

to be present at the physician's examination under United States v.

Gagnon, 470 U.S. 522, 526-27 (1985), and in any event, he showed no

prejudice arising from his absence. Furthermore, the service of the superior court judge's secretary was not a violation of Harris's right to an

impartial jury, especially in light of the significant safeguards implemented by the superior court to avoid any impropriety.

 24
Supreme Court precedent, was an unreasonable derivation of controlling Supreme Court precedent, or an unreasonable application of

Supreme Court precedent to a new set of facts. See 28 U.S.C.A.

§ 2254(d); Fitzgerald v. Greene, 150 F.3d 357, 362 (4th Cir. 1998).

To determine whether a trial counsel's performance is constitutionally ineffective, we look to the standards announced by the Supreme

Court in Strickland. Strickland provides that a petitioner must demonstrate both that his trial counsel's representation was deficient and that

he was prejudiced thereby. See Strickland, 466 U.S. at 687; Howard

v. Moore, 131 F.3d 399, 421 (4th Cir. 1997) (en banc), cert. denied,

119 S. Ct. 108 (1998). In making this determination, "a court must

indulge a strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance." Strickland, 466

U.S. at 689. To demonstrate prejudice, "[t]he defendant must show

that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Harris claims his trial counsel were ineffective because they failed

to object to the superior court's empaneling of a new jury to serve in

the sentencing phase of the trial. He urges that this failure was a violation of his right to be free from double jeopardy under both the North

Carolina and United States constitutions. Harris first cites North Carolina case law and statutory provisions to support his position. See

N.C. Gen. Stat. § 15A-2000(a)(2) (Michie 1997); State v. Lechat, 343

S.E.2d 872 (N.C. 1986); State v. Bondurant, 309 S.E.2d 170 (N.C.

1983); State v. Crocker, 80 S.E.2d 243 (N.C. 1954). A review of this

authority, however, reveals that the superior court's actions at trial

were likely proper under North Carolina law.12 Bondurant stands for

_________________________________________________________________

12 Ordinarily, we would not analyze the substantive application of state

law in a habeas petition. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-

68 (1991) ("[I]t is not the province of a federal habeas court to reexamine

state-court determinations on state-law questions."). This claim, however, is couched in terms of ineffective assistance of trial counsel and

because it involves the omission of a challenge in the state courts, the

superior court did not have an opportunity to address fully the underlying

issue at trial. We, therefore, must address the substance of the state law

to assess the performance of counsel.

 25
the unremarkable proposition that "[s]electing a jury composed both

of those opposed and unopposed to capital punishment for the purpose of determining guilt and then, at the sentencing phase, replacing

those opposed by alternates who are unopposed to the death penalty"

is improper under North Carolina law. Bondurant , 309 S.E.2d at 176.

Lechat addresses the improper and premature declaration of a mistrial

while the jury was deliberating the guilt of the defendant, and does

not touch upon the empaneling of a second jury during the sentencing

phase. See Lechat, 343 S.E.2d at 878. Finally, Crocker also discusses

the propriety of declaring a mistrial during a portion of the guilt phase

of the trial. See Crocker, 80 S.E.2d at 244-46. None of these cases

stand for the proposition that it is patently improper under North Carolina law to empanel a new jury for the guilt phase of a trial.

Most dispositive of the issue is the North Carolina statute cited by

Harris, § 15A-2000(a)(2), which states that"[i]f the trial jury is

unable to reconvene for a hearing on the issue of penalty after having

determined the guilt of the accused, the trial judge shall empanel a

new jury to determine the issue of the punishment." N.C. Gen. Stat.

§ 15A-2000(a)(2). Our review of the record discloses that a guilty

verdict was entered against Harris on May 14, 1992. On May 18,

1992, the sentencing phase of the trial was continued until May 26,

1992, because of the illness of Harris's lead counsel. On that date, the

superior court held an in camera proceeding at which Harris

requested the removal of Mr. Merritt as his lead counsel, which the

superior court eventually allowed after entertaining a request from

Mr. Merritt to withdraw. Faced with the need to replace lead counsel

and to allow sufficient time for the new counsel to familiarize himself

with the case, the superior court determined that the guilt-phase jury

would be unable to continue service indefinitely. Therefore, the superior court dismissed the jury with the intention of empaneling a new

jury when the sentencing phase could proceed. We do not believe that

this situation exceeds the express guidelines of§ 15A-2000(a)(2). By

no means can we say that counsel was ineffective for not objecting

to the discharge of the jury when it was done to facilitate Harris's

own request to have a new lead counsel appointed. There was, therefore, no objection for counsel to lodge under the North Carolina Constitution.

Harris also relies on a federal case holding that absent the voluntary consent of a defendant, a declaration of a mistrial that amounts

 26
to an abuse of discretion would make any later prosecution a violation

of the Double Jeopardy Clause. See United States v. Jorn, 400 U.S.

470, 486 (1971). However, the United States Supreme Court has

expressly held that a sentencing proceeding is not a successive prosecution. See Schiro v. Farley, 510 U.S. 222, 230 (1994) ("Our prior

decisions are inconsistent with the argument that a first sentencing

proceeding can amount to a successive prosecution."). Based upon the

circumstances of this case, we are confident in concluding that the

sentencing proceeding did not amount to a successive proceeding

implicating the Double Jeopardy Clause. There was, therefore, no

objection for counsel to lodge under the United States Constitution.

Our review reveals that counsel's actions in regard to the empaneling of a new jury at sentencing demonstrated no deficiencies and

could not have resulted in prejudice to Harris. The state court's judgment in the 1996 MAR was well within the bounds of§ 2254(d) and,

accordingly, we find no grounds for relief on this issue.

III.

For the foregoing reasons, we affirm the district court's grant of

summary judgment and the dismissal of Harris's petition for a writ of

habeas corpus.

AFFIRMED

 27