UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID JUNIOR WARD,

Petitioner-Appellant,

v.

No. 98-7

JAMES B. 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.

Terrence W. Boyle, Chief District Judge.

(CA-97-122-5-HC-BO)

Argued: September 23, 1998

Decided: October 23, 1998

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Wilkins wrote the opinion,

in which Judge Niemeyer and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Marvin Ray Sparrow, Durham, North Carolina, for

Appellant. Valerie Blanche Spalding, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,

North Carolina, for Appellee. ON BRIEF: Dawn T. Battiste, EVERETT & EVERETT, Durham, North Carolina, for Appellant. Michael

F. Easley, Attorney General of North Carolina, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

David Junior Ward appeals an order of the district court denying

his petition for a writ of habeas corpus,1 which challenged his North

Carolina conviction and death sentence for the murder of Dorothy

Mae Smith. See 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998).2

Finding no error, we affirm.

I.

The facts are set forth in detail in the opinion of the Supreme Court

of North Carolina on direct appeal. See State v. Ward, 449 S.E.2d

709, 715-16 (N.C. 1994). Accordingly, we need only summarize them

briefly here. At approximately 10:30 p.m. on the evening of April 3,

1991, Smith closed the convenience store she owned with her hus-

_________________________________________________________________

1 Ward named James B. French, Warden of Central Prison where Ward

is incarcerated, as Respondent. For ease of reference, we will refer to

French as "the State" throughout this opinion.

2 Because Ward's petition for a writ of habeas corpus was filed after

the April 24, 1996 enactment of the Antiterrorism and Effective Death

Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, the

amendments to 28 U.S.C.A. § 2254 effected by§ 104 of the AEDPA

govern the resolution of this appeal. See Green v. French, 143 F.3d 865,

868 (4th Cir. 1998); see also Lindh v. Murphy , 117 S. Ct. 2059, 2067-68

(1997) (holding that habeas petitions filed prior to the effective date of

the act are not governed by the Chapter 153 AEDPA amendments). The

State does not maintain that the provisions of § 107 (including the more

stringent procedural default provisions) of the AEDPA apply.

 2
band and proceeded to her home in Greenville, North Carolina, carrying approximately $4,000 in cash, some checks, and a few personal

items. Shortly thereafter, a neighbor, Lonnie Daniels, heard five gunshots in rapid succession. Daniels and a friend went to the Smiths'

home and found her lying on the ground near the back door, bleeding

and unresponsive. Smith later died from her wounds. A subsequent

autopsy revealed that she had been shot five times by small caliber

weapons fired from a distance greater than three or four feet.

The following day, law enforcement officers apprehended Ward on

unrelated charges. Ward then made a statement regarding the murder

of Smith, which was reduced to writing by a detective:

David stated that yesterday he came to Greenville and got

up with Wesley Harris. David said Wesley said he had a job

to do that night. David said Wesley said they were going to

rob [Smith] when she closed the store. He stated that they

went by the store and she was there so they rode around

until it got dark. David said about 10:00 p.m. that they

parked Wesley's blue Saab car on the road that runs off

between the store and the Smith house. We ran across the

road and got in the bushes next to the driveway. I had a rifle

and Wesley had a pistol. The rifle was a .22 caliber and the

pistol was a .32 caliber. When Mrs. Smith pulled in the

driveway and pulled around back and got out of the truck,

we started shooting. Wesley ran and got the money box after

she fell and we ran across the road and got in the car and

left. We put the money in the ditch near Empire Brushes.

We got a money box and a white plastic bag. I called a cab

and went to my girlfriend's house near Belvoir. Before I

could get up with Wesley the next day, the cops got me.

David said Wesley kept both guns that were used.

Id. (internal quotation marks omitted). Ward also made a written

statement that was consistent with his oral statement. Thereafter,

Ward assisted officers in locating Harris, the weapons employed in

the attack on Smith, and the proceeds of the robbery.

Ward subsequently was convicted of numerous charges related to

the robbery and murder of Smith, including first-degree murder. The

 3
jury recommended that Ward be sentenced to death for the murder

conviction based on its conclusions that Ward had committed the

murder for pecuniary gain and that the mitigating circumstances

found by the jury--that Ward had aided in the apprehension of a capital felon; that Ward had confessed guilt and cooperated with law

enforcement officers; and that it was not proven which firearm Ward

had used--were insufficient to outweigh the aggravating factor. See

id. at 717.

The Supreme Court of North Carolina affirmed Ward's conviction

and sentence, see id. at 746, and the United States Supreme Court

denied certiorari, see Ward v. North Carolina , 514 U.S. 1134 (1995).

Ward then filed a motion for appropriate relief in the Pitt County

Superior Court. That court denied relief without a hearing, reasoning

that Ward's claims were either defaulted, barred, or without merit.

The Supreme Court of North Carolina denied certiorari, as did the

United States Supreme Court. See State v. Ward , 473 S.E.2d 626

(N.C.), cert. denied, Ward v. North Carolina, 117 S. Ct. 534 (1996).

In March 1997, Ward filed this action in the district court, alleging

numerous claims. The district court denied relief. See Ward v. French,

989 F. Supp. 752, 768 (E.D.N.C. 1997), amended , No. 5:97-HC-122-

BO (E.D.N.C. Feb. 17, 1998). Having received a certificate of

appealability from the district court, Ward now appeals.

II.

We first address Ward's claim that the statutory power of the district attorney to calendar cases for trial violates the Due Process

Clause of the Fourteenth Amendment. See N.C. Gen. Stat. §§ 7A49.3, 7A-61 (1995). According to Ward, the power to schedule cases

amounts to the power to select the presiding judge, thereby giving the

prosecution an unfair advantage. Ward asserts that this power was

used to his disadvantage when his trial was scheduled before the same

judge who tried Harris. The state habeas court rejected this claim, noting that the Supreme Court of North Carolina has held the challenged

statutory provisions facially constitutional, see Simeon v. Hardin, 451

S.E.2d 858, 869-71 (N.C. 1994), and concluding that Ward had failed

to file an affidavit that would support an as-applied challenge, see

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

 4
Ward points to no relevant precedent from the United States

Supreme Court that supports his facial challenge to the district attorney's statutory authority to calendar criminal cases, and we are aware

of none. In the absence of any controlling--or even relevant--

Supreme Court precedent, we cannot say that the rejection of Ward's

facial challenge by the state habeas court "was contrary to, or

involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States." 28

U.S.C.A. § 2254(d)(1); see Green v. French , 143 F.3d 865, 870 (4th

Cir. 1998) (explaining that analysis of whether state court ruling is

contrary to, or unreasonable application of, federal law depends upon

an analysis of relevant Supreme Court precedent). We further determine that the ruling of the state habeas court that the affidavits proffered by Ward in support of his as-applied challenge were inadequate

was not an unreasonable factual determination. See 28 U.S.C.A.

§ 2254(d)(2).

III.

Next, Ward raises two claims related to the selection of the jury

that convicted him. First, Ward maintains that the trial court erroneously excused for cause potential jurors on the basis that their opposition to the death penalty would prevent them from applying the law.

Second, Ward claims that the process of "death qualifying" the venire

resulted in a jury more likely to convict and thus denied him a fair

trial. We address these claims in turn.

A.

It is well settled "that the State infringes a capital defendant's right

under the Sixth and Fourteenth Amendments to trial by an impartial

jury when it excuses for cause all those members of the venire who

express conscientious objections to capital punishment." Wainwright

v. Witt, 469 U.S. 412, 416 (1985); see Witherspoon v. Illinois, 391

U.S. 510, 521-23 (1968). At the same time, however, the Court has

recognized that the State possesses a "legitimate interest in excluding

those jurors whose opposition to capital punishment would not allow

them to view the proceedings impartially, and who therefore might

frustrate administration of a State's death penalty scheme."

Wainwright, 469 U.S. at 416. A prospective juror may be excused for

 5
cause based on opposition to the death penalty when it is established

that "the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions

and his oath.'" Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45

(1980)).

Here, the trial court asked each prospective juror a series of three

questions designed to determine whether that person could comply

with the law of North Carolina regarding the imposition of the death

penalty. Ward concedes that these questions comport with

Wainwright, but asserts that the trial court violated Ward's constitutional rights by failing to inquire further of venire members who gave

inconsistent answers to these questions and by refusing to allow counsel to attempt to rehabilitate such persons. Essentially, Ward maintains that despite asking the correct questions, the trial court

misapplied the Wainwright standard by excluding jurors without first

determining whether their views in opposition to capital punishment

would prevent them from performing their duties as jurors.

The determination of a trial court with respect to whether a prospective juror's views on capital punishment will prevent the juror

from applying the law is essentially a factual one resting on an assessment of demeanor and credibility. See id. at 428-29; Maynard v.

Dixon, 943 F.2d 407, 415 (4th Cir. 1991). Under the AEDPA, therefore, Ward is not entitled to relief on this claim unless the decision

of the trial court to excuse potential jurors based on their answers to

voir dire questions "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)(2). Additionally, when the record reflects

ambiguity in a prospective juror's response to voir dire, "the determination made by the trial court, based on its eyeing the juror, is presumed to be consistent with the applicable standard." Maynard, 943

F.2d at 415; see Truesdale v. Moore, 142 F.3d 749, 757 (4th Cir.

1998). Having reviewed the transcript of the voir dire proceedings, we

cannot say that the decision of the trial court to excuse jurors who

gave inconsistent answers to voir dire questions regarding their willingness to recommend the death penalty rested on an unreasonable

determination of the facts based on the evidence before it.

 6
B.

Ward next asserts that the process of excluding potential jurors

under Wainwright rendered the resulting jury more likely to convict,

thereby violating his constitutional rights. The Supreme Court of

North Carolina rejected this claim on the basis of its prior holdings.

See, e.g., State v. Brown, 293 S.E.2d 569, 584 (N.C. 1982). We conclude that this decision was neither contrary to, nor an unreasonable

application of, clearly established federal law as determined by the

Supreme Court. See Lockhart v. McCree, 476 U.S. 162, 173 (1986)

(holding "that the Constitution does not prohibit the States from

`death qualifying' juries in capital cases" even if the deathqualification process renders the resulting jury more prone to convict).

IV.

During opening arguments, Smith's husband, who was seated near

the prosecution's table and in view of the jury, began crying audibly

and left the room. Ward claims that the district attorney deliberately

seated Mr. Smith near the jury with the knowledge that he was likely

to engage in an emotional outburst that would prejudice the jury

against Ward, in violation of the Fourteenth Amendment. The state

habeas court concluded that this claim lacked merit. 3 Since Ward has

pointed to no Supreme Court authority for the proposition that the

prosecuting authority violates any constitutional right of the defendant

in seating members of the victim's family where they may view--and

in turn be viewed by--the jury, we conclude that the rejection of this

claim was not unreasonable. See 28 U.S.C.A.§ 2254(d)(1); Green,

143 F.3d at 870.

_________________________________________________________________

3 Although Ward failed to raise this issue on direct appeal, the state

habeas court nevertheless concluded that it had been raised and decided

on the merits on direct appeal. The state habeas court, however, also

independently reviewed the claim and determined that it lacked merit.

We accordingly review this ruling.

 7
V.

While making closing arguments during the guilt phase of Ward's

trial, the district attorney made the following comments regarding the

failure of the defense to produce certain evidence forecast during

Ward's opening statement:

I mean, if he knows all this--I mean, I'd like for him to put

a hand on the Bible, take an oath. He had every opportunity

to get up here and tell it, if that is what he knows. He didn't

do it.

Ward, 449 S.E.2d at 728 (internal quotation marks omitted). Ward

complains that the district attorney's statement amounted to an impermissible comment on Ward's failure to testify and that the trial court

should have intervened sua sponte to correct the error.

The Constitution "forbids either comment by the prosecution on the

accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. California, 380 U.S. 609, 615 (1965). This

constitutional prohibition, however, does not preclude a prosecutor

from making "a fair response to a claim made by defendant or his

counsel." United States v. Robinson, 485 U.S. 25, 32 (1988). "[T]he

protective shield of the Fifth Amendment should[not] be converted

into a sword that cuts back on the area of legitimate comment by the

prosecutor on the weaknesses in the defense case." Id. (internal quotation marks omitted).

When the district attorney's comments are viewed in isolation,

Ward's argument that they were directed toward his failure to testify

has some appeal. Consideration of the context in which comments are

made, however, is essential to a determination of whether constitutional rights have been violated. See id. at 33. Here, the Supreme

Court of North Carolina concluded that the comments of the district

attorney, viewed in context, were simply a fair response to the failure

of the defense to produce certain forecasted evidence.4 See Ward, 449

(Text continued on page 10)

_________________________________________________________________

4 The comments challenged by Ward occurred in the context of the following argument:

 8
I feel like we need to turn on a fan and blow smoke out of this

courtroom....

....

 Now you folks think about it. Mr. Evans got in front of you

on Monday, ... and in his opening statement, after the judge had

told you that this is an outline of what the attorney believes is

competent, admissible evidence, and he said, ladies and gentlemen, ... there will be evidence that will show that Wesley

Thomas Harris thought that there was cocaine in Dorothy Mae

Smith's house and that he went and told David Ward about it and

said, you know, Im going to ... go down there to Dorothy Mae

Smith's house ... and we are going to hide there. And when she

comes, we are going to force her to go in the house and show us

where the cocaine is. This is what he is telling you that the evidence is going to be. And then he says they rode around. He,

Wesley Harris, and David Ward rode around and that David

smoked some cocaine.

 Now, I'm going to tell you, folks, I didn't hear any of that evidence come from the witness stand. Why would he tell you this?

Why? Smoke. I mean, if he knows all this--I mean I'd like for

him to put a hand on the Bible, take an oath. He had every

opportunity to get up here and tell it, if that is what he knows.

He didn't do it.

 What else did he say in his opening statement? He said, well,

after they talked about this, he said the evidence would show that

Wesley dropped the defendant Ward off and came back later that

afternoon and picked him up again. And then ... the defendant,

David Ward, smoked some more cocaine. And that then they

rode out there to the store, saw the deceased, Dorothy Mae

Smith, still in the store and went and parked the car and got in

the bushes. And that David Ward was high as [a] kite.... There

[is not] one scintilla of evidence about that.

 And then he goes on to say ... that Wesley ... pulled out a .32

and he gave the defendant Ward the bolt action and that at that

time the deceased, Dorothy Mae Smith, drives up in the driveway and she gets out of her car. And he, that is one or both of

them, saw this gun, this .38 that she had, and they got scared.

Well, did you hear any evidence of that?

 9
S.E.2d at 729; see Lockett v. Ohio, 438 U.S. 586, 595 (1978) (holding

that prosecutor's comments regarding "uncontradicted" evidence did

not violate the Constitution when they were merely responsive to

defendant's failure to produce the defense asserted during opening

argument (internal quotation marks omitted)). This ruling neither was

contrary to, nor involved an unreasonable application of, federal law

as determined by the Supreme Court.5 Cf. United States v. Mares, 940

_________________________________________________________________

 And that at that point Wesley pulled out the Ruger too....

[H]es telling you the evidence is going to show that Wesley has

got the Ruger in one hand and the .32 in another hand.

 I mean, folks, this is a fairy tale. Then he says that the evidence is further going to show that Dorothy Mae Smith turns and

sees them, and is scared and she starts going towards the door;

and that Wesley then shoots one time with the .32 and it jams

and then he shoots a number of times with the Ruger. He says

he drops the .32 and shoots with the Ruger; that David shoots

one time with the bolt action .22. And then they pick the stuff

up and leave. I mean, folks, Im going to tell you there [is] not

one scintilla of evidence to support that.

 Why did he tell you all that? Why did he tell you that is what

the evidence was going to be? You havent heard it....

 Where is all this stuff, Mr. Evans?

Tr. 1410-13 (emphasis added).

5 Even if the decision of the Supreme Court of North Carolina was

unreasonable, "[r]espect for the finality of a presumptively valid statecourt conviction and sentence dictates that [we] may not grant habeas

corpus relief ... unless [we are] convinced that `the error had substantial

and injurious effect or influence in determining the... verdict.'" Gilbert

v. Moore, 134 F.3d 642, 647 (4th Cir. 1998) (en banc) (quoting Brecht

v. Abrahamson, 507 U.S. 619, 637 (1993)) (fifth alteration in original),

cert. denied, ___ U.S.L.W. ___ (U.S. Oct. 5, 1998) (Nos. 97-9198, 97-

9264); see Chapman v. California, 386 U.S. 18, 24-26 (1967) (conducting harmless-error review of Griffin error). The evidence of Ward's guilt

--which included his detailed confession the day after the murder was

committed--simply was overwhelming. See United States v. Hasting,

461 U.S. 499, 510-12 (1983) (concluding on direct appeal that a Griffin

error was harmless when evidence of defendant's guilt was "compel-

 10
F.2d 455, 460-61 (9th Cir. 1991) (holding that prosecutor's statements

regarding expected inadequacy of defense counsels' argument did not

amount to comments on defendant's failure to testify).

VI.

Next, Ward raises several claims related to the sentencing phase of

his trial. We address these contentions seriatim.

A.

At sentencing, Ward sought to establish the statutory mitigating

factor that he had "aided in the apprehension of another capital felon

or testified truthfully on behalf of the prosecution in another prosecution of a felony." N.C. Gen. Stat. § 15A-2000(f)(8) (1988). In order

to show that he had aided in the apprehension of a capital felon, Ward

called as a witness the court clerk from Harris' trial and elicited testimony that Harris had been convicted of a capital crime. On crossexamination, the clerk testified that Ward had been called as a witness

during Harris' trial and had refused to testify. The prosecution subsequently argued that Ward's refusal to testify during Harris' trial

diminished the mitigating value of his aid in apprehending Harris.

Ward claims that the cross-examination and argument concerning his

refusal to testify at Harris' trial violated his rights to a fair trial and

to remain silent. The Supreme Court of North Carolina concluded that

any error was harmless beyond a reasonable doubt, see Chapman v.

California, 386 U.S. 18, 24 (1967), in light of the fact that the jury

"rejected [the district attorney's] argument and found both the statutory mitigating circumstance ... and the other, more specific nonstatutory mitigating circumstance submitted in this regard--that [Ward]

_________________________________________________________________

ling"). Moreover, the comments challenged by Ward constituted only a

brief moment during an extended closing argument and did not urge the

jury to draw an inference of guilt from Ward's silence. Cf. Anderson v.

Nelson, 390 U.S. 523, 523-24 (1968) (per curiam) (concluding that

Griffin error cannot be harmless when the "comment is extensive, where

an inference of guilt from silence is stressed to the jury as a basis of conviction, and where there is evidence that could have supported acquittal").

 11
confessed guilt to, and cooperated with, law enforcement officials the

day following the crimes," Ward, 449 S.E.2d at 738. We cannot say

that this ruling constituted an unreasonable application of the

Chapman standard. See 28 U.S.C.A. § 2254(d)(1).

B.

Ward next contends that the trial court erred in precluding Dr.

Patricio Lara, a forensic psychiatrist who testified regarding Ward's

mental status at the time of the offense and his history of drug usage,

from relating conversations with Ward upon which Dr. Lara's conclusions were partially based. In particular, Ward sought to elicit testimony that he had told Dr. Lara that he abused drugs and that he could

not remember what occurred on the night of the murder. The Supreme

Court of North Carolina agreed that the exclusion of this testimony

was error, but ruled that the error was harmless beyond a reasonable

doubt. See Ward, 449 S.E.2d at 732-33.

This holding was not an unreasonable one. See 28 U.S.C.A.

§ 2254(d)(1). In the first place, the jury had before it expert testimony

from Dr. Lara that Ward had a history of drug abuse. Additionally,

Ward's sister testified that she had observed Ward smoking cocaine

base two days before the murder and had previously noticed Ward

behaving strangely, leading her to believe that he was using drugs.

Another witness testified that he saw Ward using narcotics with Harris on the day of the murder. Moreover, as the Supreme Court of

North Carolina pointed out, testimony that Ward could not remember

what occurred on the night of the murder would be patently inconsistent with his detailed confession to police the following day; thus, the

exclusion of testimony regarding a claimed drug-induced memory

loss "probably redounded to [Ward's] benefit" by avoiding the presentation of inconsistent factual positions. Ward, 449 S.E.2d at 733.

C.

Ward also claims that the trial court deprived him of his rights

under the Eighth and Fourteenth Amendments by refusing to allow

him to introduce, as mitigating evidence, the life sentence received by

Harris. "`[T]he Eighth and Fourteenth Amendments require that the

sentencer ... not be precluded from considering, as a mitigating

 12
factor, any aspect of a defendant's character or record and any of the

circumstances of the offense that the defendant proffers as a basis for

a sentence less than death.'" Eddings v. Oklahoma, 455 U.S. 104, 110

(1982) (second alteration in original) (quoting Lockett v. Ohio, 438

U.S. 586, 604 (1978) (plurality opinion)). Evidence of the sentence

received by a codefendant, however, is neither an aspect of the defendant's character or record nor a circumstance of the offense. See

Brogdon v. Blackburn, 790 F.2d 1164, 1169 (5th Cir. 1986). Moreover, such evidence does not "tend[ ] logically to prove or disprove

some fact or circumstance which a fact-finder could reasonably deem

to have mitigating value." McCoy v. North Carolina, 494 U.S. 433,

440 (1990) (internal quotation marks omitted). Accordingly, the rejection of this claim by the Supreme Court of North Carolina did not

constitute an unreasonable application of the principle set forth in

Eddings. See 28 U.S.C.A. § 2254(d)(1).6

D.

During the sentencing phase of his trial, Ward presented evidence

supporting numerous nonstatutory mitigating factors for the consideration of the jury. The jury found only one of these proposed nonstatutory mitigating factors--that Ward had confessed guilt and

cooperated with law enforcement officers on the day after the crime.

_________________________________________________________________

6 Ward asserts that the opinion of the Supreme Court in Parker v.

Dugger, 498 U.S. 308 (1991), "strongly suggests that a co-defendant's

sentence is a relevant mitigating circumstance." Brief of Appellant at 32.

The Supreme Court of North Carolina rejected Ward's reading of

Parker, reasoning that while the Parker Court recognized that Florida

law attached mitigating value to the sentence received by an accomplice,

the Court intimated no holding that the admission of such evidence was

required as a matter of constitutional law. See Ward, 449 S.E.2d at 737.

We agree. In Parker, the Court reviewed the constitutionality of a decision of the Florida Supreme Court affirming Parker's death sentence

after striking two aggravating factors found by the trial court. In the

course of its analysis, the Court noted that the trial judge must have considered mitigating evidence regarding a codefendant's sentence because

such evidence was deemed to have mitigating value under Florida law.

See Parker, 498 U.S. at 315-16. At no point, however, did the Court suggest that such evidence must have been considered by the trial court as

a matter of federal constitutional law.

 13
Ward now contends that the refusal of the jury to find any of the

remaining mitigating factors--the evidence of which, he notes, was

uncontradicted--renders his sentence unconstitutional.

The Constitution requires that "the sentencer ... not refuse to consider or be precluded from considering any relevant mitigating evidence." Hitchcock v. Dugger, 481 U.S. 393, 394 (1987) (internal

quotation marks omitted). The mere fact that a defendant offers certain evidence in mitigation, however, does not mean that the jury is

required to assign any mitigating value to it. See Raulerson v.

Wainwright, 732 F.2d 803, 807 (11th Cir. 1984) (concluding that

under Eddings, "the Constitution prescribes only that the sentencer

hear and consider all the evidence a defendant chooses to offer in mitigation" and that "[t]here is no requirement that the [sentencer] agree

with the defendant's view that it is mitigating"); see also Graham v.

Collins, 506 U.S. 461, 490 (1993) (Thomas, J., concurring) (arguing

that the constitutional right to present mitigating evidence to the sentencer does not "mean that the decision whether to impose the death

penalty must be based upon all of the defendant's evidence, or that

such evidence must be considered the way the defendant wishes");

Walton v. Arizona, 497 U.S. 639, 650 (1990) (opinion of White, J.)

(refusing "to adopt as a constitutional imperative a rule that would

require the court to consider the mitigating circumstances claimed by

a defendant unless the State negated them by a preponderance of the

evidence"). Accordingly, the Supreme Court of North Carolina did

not rule unreasonably or contrary to law in rejecting this claim. See

28 U.S.C.A. § 2254(d)(1).

E.

During cross-examination of Ward's mother regarding her knowledge of Ward's previous convictions, Ward stood and engaged in a

protracted outburst toward the district attorney and the trial court.

During the ensuing moments, the jury was removed from the courtroom and Ward was placed in handcuffs. The record does not clearly

reveal, however, which of these events occurred first. Ward asserts

that the jury was still present in the courtroom when he was seized

and handcuffed and maintains that this action violated his constitutional rights. See Illinois v. Allen, 397 U.S. 337, 344 (1970) (stating

 14
that "no person should be tried while shackled and gagged except as

a last resort").

We conclude that the state habeas court did not rule unreasonably

in rejecting this claim.7 By Ward's own account of the incident, he

"lost [his] temper and stood up at the counsel table and started shouting at [the district attorney], including using some profanity." J.A. 75.

Ward also acknowledges that he "was emotionally upset, and may

have been pacing back and forth restlessly." Id. Although Ward maintains that this conduct did not justify his being restrained in view of

the substantial prejudice that may result from such tactics, we cannot

say that "reasonable jurists would all agree" that the state habeas court

ruled unreasonably in reaching a different conclusion. Green, 143

F.3d at 870.

F.

Ward next raises two challenges to the proportionality review conducted by the Supreme Court of North Carolina. First, Ward maintains that the imposition of the death penalty in his case violates the

Eighth Amendment because there is no meaningful way of distinguishing his case from other, similar cases in which the death penalty

was not imposed. Second, Ward claims that the structure of proportionality review in North Carolina is inherently flawed, again in violation of the Eighth Amendment. Because the Eighth Amendment does

not require proportionality review of a death sentence, see Pulley v.

Harris, 465 U.S. 37, 50-51 (1984),8 these claims are not cognizable

in a federal habeas corpus proceeding. See Buchanan v. Angelone,

103 F.3d 344, 351 (4th Cir. 1996), aff'd, 118 S. Ct. 757 (1998).

_________________________________________________________________

7 As with the issue discussed in Part IV regarding the seating of the victim's husband, the state habeas court incorrectly stated that this claim

had been raised and decided on direct appeal, but also independently

found the claim to be without merit. We therefore review the conclusion

of the habeas court concerning the merits of the claim.

8 The Pulley court acknowledged the possibility of "a capital sentencing system so lacking in other checks on arbitrariness that it would not

pass constitutional muster without comparative proportionality review."

Id. at 51. Ward does not contend, however, that the North Carolina death

penalty scheme falls into this category.

 15
VII.

Ward further argues that his attorneys were constitutionally ineffective for failing to develop expert testimony regarding his impaired

capacity due to drug usage. Although counsel presented the testimony

of Dr. Lara, Ward maintains that counsel should have retained another

expert whose testimony would have been more compelling. In order

to succeed on this claim, Ward must establish that his attorneys' "representation fell below an objective standard of reasonableness" and

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

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Review of

counsels' actions is "highly deferential." Id. at 689.

Although Ward asserts that another expert might have been more

effective than Dr. Lara in presenting a claim of diminished capacity,

Ward points to no evidence that was not considered by Dr. Lara and

presented to the jury. Under these circumstances, we cannot say that

the state habeas court unreasonably applied the Strickland standard in

rejecting Ward's ineffectiveness claim. See Poyner v. Murray, 964

F.2d 1404, 1419 (4th Cir. 1992) (explaining that the Constitution does

not require attorneys to "shop around" for more favorable expert testimony).

VIII.

Ward next challenges the adequacy of proceedings concerning his

motion for appropriate relief, contending that the state habeas court

denied him due process by failing to hold an evidentiary hearing.

Ward does not dispute that the Constitution does not require states to

provide habeas review of convictions, but maintains that the election

of a state to provide such review creates a due process right to consistent administration of the review scheme. Even if this is true, Ward

has suffered no deprivation of due process because nothing in the statute setting forth procedures for consideration of motions for appropriate relief mandates the holding of an evidentiary hearing in all cases.

See N.C. Gen. Stat. § 15A-1420(c)(1) (1997) ("Any party is entitled

to a hearing on questions of law or fact arising from the motion ...

unless the court determines that the motion is without merit." (emphasis added)). Here, the state habeas court determined that each of

 16
Ward's claims would be without merit even if the facts alleged by

Ward were taken as true. Under North Carolina law, no evidentiary

hearing was required. See State v. McHone, 499 S.E.2d 761, 763

(N.C. 1998) (holding that habeas court is not required to hold evidentiary hearing on a claim when it involves only a question of law or

when, taking disputed facts in the light most favorable to the petitioner, the claim is without merit).

IX.

Finally, Ward presents three additional claims, all of which we

conclude are procedurally defaulted: that the imposition of the death

penalty by the jury was improperly based on emotion and thus violated the Eighth Amendment; that the jury viewed Ward in handcuffs

and shackles during a large portion of the sentencing phase, in violation of the Sixth and Fourteenth Amendments; and that the evidence

was constitutionally insufficient to support a finding that the murder

was committed for pecuniary gain.

Absent cause and prejudice or a miscarriage of justice, a federal

habeas court may not review constitutional claims when a state court

has declined to consider their merits on the basis of an adequate and

independent state procedural rule. See Harris v. Reed, 489 U.S. 255,

262 (1989). Such a 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).9

Ward's claim that the jury was influenced by emotion in returning

a sentence of death is premised on numerous asserted errors--"a crying outburst by [the] victim's husband, an outburst by [the] defendant

leading to him being handcuffed and shackled before the jury, the district attorney's excessive emphasis on the victim in argument, and

[the] district attorney's improper arguments appealing to the jury's

_________________________________________________________________

9 Ward makes no attempt to establish cause and prejudice or a fundamental miscarriage of justice to excuse his defaults, and therefore we do

not consider whether either exists. See Gilbert v. Moore, 134 F.3d 642,

656 n.10 (4th Cir. 1998) (en banc), cert. denied , ___ U.S.L.W. ___ (U.S.

Oct. 5, 1998) (Nos. 97-9198, 97-9264).

 17
emotions." Brief of Appellant at 54. The state habeas court concluded

that while Ward had presented the component parts of his claim on

direct appeal, the present claim--resting on the cumulative effect of

these allegedly prejudicial occurrences--had not been raised. The

state habeas court also determined that Ward failed to present on

direct appeal his claims regarding his continued presence in front of

the jury in handcuffs and shackles10 and the sufficiency of the evidence supporting the aggravating factor. The state habeas court therefore defaulted all of these claims. See N.C. Gen. Stat. § 15A1419(a)(3) (1997). Accordingly, we decline to consider them.11

X.

For the reasons set forth above, we conclude that all of Ward's

claims either lack merit or are procedurally defaulted. We therefore

affirm the denial of habeas relief by the district court.

AFFIRMED

_________________________________________________________________

10 Ward concedes that he did not raise on direct appeal a claim related

to his continued presence before the jury in handcuffs and shackles, but

maintains that this issue was subsumed within the ruling of the Supreme

Court of North Carolina on his challenge to the denial of a motion for

mistrial based on potential tainting of the jury resulting from his outburst.

This assertion is patently without merit. Although the Supreme Court of

North Carolina noted in the course of its narrative describing the events

leading to the motion for mistrial that the trial court ordered that Ward

remain in handcuffs and shackles, nothing in its review of the denial of

the motion for mistrial can be understood as passing upon the propriety

of the continued use of restraints.

11 Ward points out that the district court considered his second claim on

its merits, evidently believing that we are somehow bound to do the

same. We conclude, however, that the district court erred in failing to

rule that Ward defaulted the claim.

 18