PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY DARNELL WILLIAMS,

Petitioner-Appellant,

v.

JAMES B. FRENCH, Warden, Central

No. 97-19

Prison, Raleigh, North Carolina;

MICHAEL F. EASLEY, Attorney

General of North Carolina,

Respondents-Appellees.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, District Judge.

(CA-83-204-3-MU)

Argued: March 2, 1998

Decided: May 18, 1998

Before HAMILTON, Circuit Judge, BUTZNER, Senior Circuit

Judge, and MOON, United States District Judge for the Western

District of Virginia, sitting by designation.

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Affirmed by published opinion. Judge Hamilton wrote the opinion, in

which Senior Judge Butzner and Judge Moon joined.

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COUNSEL

ARGUED: Sean Patrick Devereux, PITTS, HAY, HUGENSCHMIDT & DEVEREUX, P.A., Asheville, North Carolina;
Anthony Lynch, Marion, North Carolina, for Appellant. Barry Steven

McNeill, Special Deputy Attorney General, NORTH CAROLINA

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Michael F. Easley, Attorney General of North Carolina, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,

North Carolina, for Appellees.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

Following a jury trial in the Superior Court for Gaston County,

North Carolina, Larry Darnell Williams was convicted and sentenced

to death for the murder of Eric Joines. He now appeals the district

court's denial of his petition for a writ of habeas corpus. See 28

U.S.C. § 2254.1 We affirm.

I

A

On the early morning of June 3, 1979, Eric Joines was robbed and

shot in the back of his head at close range with a .20 gauge sawed-off

shotgun. At the time he was shot, Joines was working the late shift

at the Service Distributors station on Highway 321 North in Gastonia,

North Carolina. As a result of his injuries, Joines died one week later.

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1 Because Williams' petition for a writ of habeas corpus was filed on

April 5, 1983, prior to 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 Chapter 153 amendments of the AEDPA do

not apply in this case. See Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997)

(holding that the Chapter 153 amendments, amendments applying to all

federal habeas petitions, do not apply to federal habeas petitions pending

on the date of the AEDPA's enactment). As to the Chapter 154 amendments, amendments applying to capital petitioners, the State does not

maintain that it has satisfied the opt-in requirements of Chapter 154 such

that those provisions of the AEDPA apply.

 2
At Williams' trial, two accomplices, Linda Massey and her cousin,

Darryl Brawley, testified that on the night of June 2, 1979, Williams,

Massey, Brawley, and an unidentified fourth person were riding

around together in Charlotte, North Carolina in a car belonging to

another of Massey's cousins, Robert Brown. Massey and Brawley

also testified that Williams had a .20 gauge sawed-off shotgun with

him in the car. After drinking alcohol, smoking marijuana, and taking

Valium during the course of the evening, the group traveled on Interstate 85 from Charlotte to Gastonia. The group got off at an exit in

Gastonia and traveled past the station where Joines worked. Shortly

thereafter, the group returned to the station, where Williams and the

unidentified fourth person got out of the car, with Williams armed

with his sawed-off shotgun, and entered the station and robbed Joines

of approximately $274. Williams then ordered Joines to lie face down

on the floor. Following Joines' compliance with Williams' order,

Williams shot Joines in the back of his head.

After the Joines shooting, the group traveled to Concord, North

Carolina, where they stopped at a "7-11" convenience store. Williams

and the unidentified fourth person got out of the car and entered the

store. Shortly thereafter, Williams returned to the car, got his sawedoff shotgun, and went back into the store where he robbed and fatally

shot the store clerk, Susan Verle Pierce.

B

On September 10, 1979, a Gaston County grand jury indicted Williams for the first-degree murder and armed robbery of Joines. Following a jury trial in June 1980, Williams was convicted of both

charges.2 In the bifurcated proceeding, the State presented evidence

of only one aggravating circumstance, that Joines' murder was part

of a course of conduct in which Williams engaged and which

included the commission by Williams of other crimes of violence

against another person or persons, to wit, the robbery and murder of

Susan Verle Pierce, see North Carolina General Statutes

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2 Williams' armed robbery conviction was set aside because the indictment identified Massey, instead of Williams, as the perpetrator of the

armed robbery. See State v. Williams, 292 S.E.2d 243, 247 n.1 (N.C.

1982).

 3
§ 15A-2000(e)(11). The jury found beyond a reasonable doubt that

the aggravating circumstance outweighed the mitigating circumstances3

and recommended that Williams be sentenced to death. The trial court

sentenced Williams in accordance with the jury's recommendation.4

On direct appeal, the North Carolina Supreme Court affirmed Williams' conviction and sentence. See State v. Williams, 292 S.E.2d 243,

264 (N.C. 1982). On November 29, 1982, the United States Supreme

Court denied Williams' petition for a writ of certiorari. See Williams

v. North Carolina, 459 U.S. 1056 (1982).

On April 5, 1983, Williams filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court

for the Western District of North Carolina, alleging approximately

seventeen grounds for relief. Contemporaneously, Williams filed a

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3 The trial court submitted ten mitigating circumstances and the jury

found the existence of the following seven: (1) Williams had no significant history of prior criminal activities; (2) Williams was twenty-four

years old at the time of the murder; (3) Williams had a good employment record; (4) Williams had voluntarily submitted himself for drug

treatment; (5) Williams had a good character and reputation;

(6) Williams was considerate and loving to his mother and sisters; and

(7) Williams was a considerate and loving father. The jury declined to

find the following mitigating circumstances: (1) Williams had an I.Q. of

sixty-nine; (2) Williams had acted appropriately in connection with a

personal injury claim; and (3) there were other circumstances of mitigating value which arose from the evidence.

4 Prior to his conviction in Gaston County Superior Court, Williams

was convicted of first-degree murder in Cabarrus County Superior Court

for the murder of Susan Verle Pierce. Williams was sentenced to death,

but on appeal, the North Carolina Supreme Court remanded the case for

resentencing because the trial court erroneously submitted the aggravating circumstance that the murder "was committed for the purpose of

avoiding or preventing a lawful arrest," N.C. Gen. Stat.

§ 15A-2000(e)(4). See State v. Williams , 284 S.E.2d 437, 455-57 (N.C.

1981). In February 1985, Williams was resentenced, and the jury again

recommended that Williams be sentenced to death. On appeal, the North

Carolina Supreme Court remanded for a new sentencing hearing because

of the prosecutor's improper closing argument. See State v. Williams,

346 S.E.2d 405 (N.C. 1986). To date, Williams has not been resentenced.

 4
motion to consolidate one of his claims, challenging the use of

"death-qualified" juries,5 with similar claims being raised by three

other non-capital habeas petitioners. On June 9, 1983, United States

District Judge James B. McMillan entered an order granting the

motion to consolidate. Following further briefing, Williams filed a

motion for partial summary judgment on a different claim, that three

jurors were excused for cause in violation of Witherspoon v. Illinois,

391 U.S. 510 (1968).

On January 12, 1984, Judge McMillan entered an order holding

that the use of "death-qualified" juries violated the Sixth and Fourteenth Amendments, and that one of the prospective jurors at Williams' trial was improperly excused for cause from the petit jury in

violation of Witherspoon. See Keeten v. Garrison, 578 F. Supp. 1164

(W.D.N.C. 1984). None of the other claims in Williams' habeas petition was addressed by Judge McMillan. On March 5, 1984, in accordance with his decision, Judge McMillan granted Williams a new trial

and sentencing, but stayed his judgment pending appeal by the State.

On August 21, 1984, we reversed the grant of habeas relief, holding that the use of "death qualified" juries did not violate the Sixth

and Fourteenth Amendments, and that none of the prospective jurors

in Williams' petit jury was excluded in violation of Witherspoon. See

Keeten v. Garrison, 742 F.2d 129, 133-35 (4th Cir. 1984). On May

27, 1986, the Supreme Court denied certiorari review in Keeten. See

Keeten v. Garrison, 476 U.S. 1145 (1986). Following the denial of

Williams' petition for a writ of certiorari in Keeten, Williams' federal

habeas petition lingered in the district court for some time.

In August 1990, the Gaston County Superior Court set Williams'

execution for November 2, 1990, but Judge McMillan entered a stay

on September 7, 1990 pending further order of the court, so as to

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5 A "death qualified jury" is a jury made up of jurors who will consider

imposing the death penalty and are permitted to serve in capital cases

under Witherspoon v. Illinois, 391 U.S. 510 (1968). See Keeten v.

Garrison, 742 F.2d 129, 132 n.4 (4th Cir. 1984). In Witherspoon, the

Supreme Court held that a venireman in a capital case may be excluded

for cause if he is unwilling "to consider all of the penalties provided by

state law." 391 U.S. at 522 n.21.

 5
allow the adjudication of Williams' federal habeas petition. The case

continued to linger in the district court and, in June 1993, the case

was reassigned to United States District Judge Graham C. Mullen

because of Judge McMillan's pending retirement.

In April 1994, Williams was permitted to return to state court to

exhaust his state remedies. Williams filed a motion for appropriate

relief in state court and, following an evidentiary hearing, that motion

was denied on November 17, 1995. On November 7, 1996, the North

Carolina Supreme Court denied Williams' petition for a writ of certiorari. See State v. Williams, 478 S.E.2d 12 (N.C. 1996).

When the case returned to federal court, it was assigned to a magistrate judge for the preparation of a report and recommendation.

Because this case had withered on the vine for so long, the magistrate

judge ordered Williams to file an amended petition. The magistrate

judge's order directed Williams to state all claims in the amended

petition "in light of all case developments to date, as well as whatever

changes may have occurred in the law." On January 16, 1997, Williams filed an amended petition for a writ of habeas corpus. On March

31, 1997, the magistrate judge filed a report and recommendation,

recommending that Williams' amended federal habeas corpus petition

be denied, and that the stay entered previously by Judge McMillan be

dissolved. On May 28, 1997, Judge Mullen adopted the magistrate

judge's memorandum and recommendation, and entered an order

denying Williams' amended habeas petition. Williams noted a timely

appeal.

II

Each of the claims raised by Williams in this appeal, save two, was

found in state court to be procedurally defaulted. As to each claim

held to be procedurally defaulted, the state court concluded that Williams was in a position to raise the claim on direct appeal, but did not,

and, therefore, the claim was procedurally defaulted under North Carolina General Statutes § 15A-1419(a)(3), which provides that a claim

is not cognizable on state habeas if the defendant was in a position

to raise the claim in a previous appeal. The state court's application

of a procedural default rule brings into play the federal rules of procedural default.

 6
Under the doctrine of procedural default, absent cause and actual

prejudice or a miscarriage of justice,6 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).7 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).8

Under federal habeas law, we are not at liberty to question a state

court's application of a state procedural rule because a state court's

finding of procedural default is not reviewable if the finding is based

upon an adequate and independent state ground. See Harris, 489 U.S.

at 262; Barnes v. Thompson, 58 F.3d 971, 974 n.2 (4th Cir. 1995).

The state procedural rule applied in this case, North Carolina General

Statutes § 15A-1419(a)(3), is an independent and adequate state

ground. See Ashe v. Styles, 39 F.3d 80, 87-88 (4th Cir. 1994) (explaining that a federal habeas petition should have been denied on the basis

of procedural default because the state court denied relief pursuant to

§ 15A-1419(a) which is "an adequate and independent state law

ground of decision"); O'Dell v. Netherland , 95 F.3d 1214, 1241 (4th

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6 Before this court, Williams has not attempted to establish that our

refusal to address his procedurally defaulted claims would result in a

"miscarriage of justice." Accordingly, we do not address the "miscarriage

of justice" exception in this opinion.

7 A procedural default also occurs when a habeas petitioner fails to

exhaust available state remedies and "the court to which the petitioner

would be required to present his claims in order to meet the exhaustion

requirement would now find the claims procedurally barred." Coleman

v. Thompson, 501 U.S. 722, 735 n.1 (1991).

8 A distinct but related limit on the scope of federal habeas review is

the doctrine of exhaustion. In the interest of giving state courts the first

opportunity to consider alleged constitutional errors occurring in a state

prisoner's trial and sentencing, a state prisoner must exhaust all available

state remedies before he can apply for federal habeas relief. See

Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir.), cert. denied, 118

S. Ct. 102 (1997); see also 28 U.S.C.§ 2254(b). To exhaust state remedies, a state prisoner must fairly present the substance of his claim to the

state's highest court. See Matthews, 105 F.3d at 911.

 7
Cir. 1996) (en banc) (holding that unambiguous procedural rules

derived from state statutes or court rules are necessarily "firmly established" (internal quotation marks omitted)), aff'd, 117 S. Ct. 1969

(1997). Therefore, we can consider only whether cause and prejudice

exists to excuse the procedural default, not whether the state court

correctly applied its own law. See Harris, 489 U.S. at 262.

Findings of the state court supporting its decision to apply the state

procedural default rule are entitled to a presumption of correctness in

determining whether cause exists to excuse a procedural default. See

28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 547 (1981);

Stockton v. Murray, 41 F.3d 920, 924 (4th Cir. 1994). Objective factors that constitute cause include "`interference by officials' that

makes compliance with the State's procedural rule impracticable, and

`a showing that the factual or legal basis for a claim was not reasonably available to counsel.'" McClesky v. Zant , 499 U.S. 467, 493-94

(1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)); see

also Smith v. Murray, 477 U.S. 527, 537 (1986) ("[T]he question is

not whether subsequent legal developments have made counsel's task

easier, but whether at the time of the default the claim was `available'

at all."); Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir. 1988).

Additionally, the novelty of a claim has been held to constitute cause.

See Reed v. Ross, 468 U.S. 1, 12-16 (1984); see also Dugger v.

Adams, 489 U.S. 401, 407 (1989) (cause may be established upon

demonstration that a constitutional claim is "so novel that its legal

basis is not reasonably available to counsel"). Finally, a petitioner

may establish "cause" by showing he received constitutionally ineffective assistance of counsel. See Coleman, 501 U.S. at 753; Murray,

477 U.S. at 488.9

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9 Generally, "a claim of ineffective assistance [must] be presented to

the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray , 477 U.S. at 489; see also

Pruett v. Thompson, 996 F.2d 1560, 1570 (4th Cir. 1993). This is so

because allowing a petitioner to raise a claim of ineffective assistance of

counsel for the first time on federal habeas review in order to show cause

for a procedural default would place the federal habeas court "in the

anomalous position of adjudicating an unexhausted constitutional claim

for which state court review might still be available" in contravention of

"[t]he principle of comity that underlies the exhaustion doctrine."

Murray, 477 U.S. at 489. Williams has satisfied this requirement by presenting all of his ineffective assistance of appellate counsel claims to the

state court on state habeas.

 8
If attorney error amounts to constitutionally ineffective assistance

of counsel under the standard established in Strickland v. Washington,

466 U.S. 668 (1984), the Sixth Amendment dictates that the attorney's error must be imputed to the state. See Coleman, 501 U.S. at

754. Williams is constitutionally entitled to the effective assistance of

counsel on direct appeal. See Evitts v. Lucey , 469 U.S. 387, 396

(1985). Accordingly, he may establish cause to excuse his procedural

default by showing appellate attorney error that satisfies the standard

set forth in Strickland. See Coleman, 501 U.S. at 752. Under

Strickland, a defendant is deprived of the assistance of counsel guaranteed by the Constitution when counsel's performance falls "below

an objective standard of reasonableness" and"there is a reasonable

probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Strickland, 466 U.S. at

688, 694.

To establish "actual prejudice," the petitioner "must shoulder the

burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional

dimensions." United States v. Frady, 456 U.S. 152, 170 (1982);

Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir.), cert. denied, 118

S. Ct. 595 (1997).10

With these principles in mind, we address each of the claims raised

by Williams in this appeal.

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10 It is not clear whether the showing of prejudice required to excuse

a procedural default is identical to the showing of prejudice required to

establish ineffective assistance of counsel, namely, that "there is a reasonable probability that, but for [the errors], the result of the proceeding

would have been different," Strickland, 466 U.S. at 694. See Freeman v.

Lane, 962 F.2d 1252, 1258-59 & n.5 (7th Cir. 1992) (discussing distinction between procedural bar and ineffective assistance "prejudice" tests);

see also United States v. Dale, 1998 WL 168707, *1 n.3 (D.C. Cir.

1998); United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992).

However, we need not decide this issue because Williams has satisfied

neither standard in this case.

 9
A

Williams initially contends that an actual conflict of interest

infected the Public Defender's Office's representation of him during

the trial of his case. According to Williams, an actual conflict of interest was created by the Public Defender's Office's brief representation

of Massey while simultaneously representing him, and that this actual

conflict of interest adversely affected his trial counsels' performance.

Williams presented this claim in his state habeas petition and it was

found to be procedurally defaulted under North Carolina General

Statutes § 15A-1419(a)(3) because the claim was not raised on direct

appeal. Because North Carolina General Statutes§ 15A-1419(a)(3) is

an independent and adequate state ground, see Ashe, 39 F.3d at 87-88;

O'Dell, 95 F.3d at 1241, we can consider this claim only if Williams

establishes cause and prejudice.

Williams contends that the factual or legal basis for this claim was

not available to him on direct appeal. We disagree, and our analysis

begins with a summary of the facts underlying Williams' claim.

At Williams' initial appearance in Gaston County District Court on

June 12, 1979, the Public Defender's Office was appointed to represent Williams, and Assistant Public Defender R.C. Cloninger, Jr., and

Jesse B. Caldwell, III, continued to represent Williams until the conclusion of the trial. Following the Public Defender's Office's appointment, David Wells, an investigator with the Public Defender's Office,

met with Williams in the Gaston County Jail sometime between 2:00

and 3:00 p.m. that afternoon. At approximately 4:10 p.m. that same

day, Wells returned to the Public Defender's Office and informed

Public Defender Curtis Harris about that office's appointment to represent Williams. Because of concern about Massey making incriminating statements to the police, and expecting to be appointed to

represent Massey, Harris and Wells proceeded to the Gastonia Police

Department to meet with Massey.

When they arrived, Massey was being interviewed by the police.

Between 4:30 and 4:45 p.m., Harris and Wells met briefly with Massey to determine if she was indigent. According to Harris, Massey

was hysterical and unable to communicate verbally, although Massey

 10
was able to inform Harris and Wells that she had been told that she

was going to be the first woman to be executed in the gas chamber.

Harris and Wells met with Massey again that evening at approximately 8:30 p.m., but Massey was again unable to communicate.

The following morning between 10:00 a.m. and noon, Harris and

Wells met with Massey a third time. According to Harris and Wells,

Massey was in the same emotional state, but was able to communicate

by writing on a legal pad. In one such writing, Massey wrote: (1) that

she had talked to a man named Larry Currus one day; (2) that Currus

had lots of guns, and talked about killing all the time; (3) that if Currus thought Massey had told the police about him, he would kill her;

(4) that she told Currus that the police were looking for Williams,

and Currus said that his name must not be mentioned or Massey's

family would be in trouble; (5) that Massey did not say anything to

the police about Currus because of her two children being at home;

and (6) that Williams was a "little mean," but Currus was "very

mean."

At 2:00 p.m. that afternoon, Massey was charged as an accessory

after the fact to the murder of Joines. Massey was found indigent, and

the Public Defender's Office was appointed to represent Massey. The

following morning, Harris made an oral motion in Gaston County

District Court to withdraw from his appointment to represent Massey

on the basis of, among other things, statements given by Massey

incriminating Williams. The District Court granted the motion. The

Gaston County District Court appointed James R. Funderburk to represent Massey, and Funderburk was replaced by Joe Roberts in

December 1979.

The conflict of interest issue was not developed at trial by Cloninger or Caldwell. Following Williams' trial, Appellate Public

Defenders Adam Stein and Ann Petersen were appointed to represent

Williams. On direct appeal, appellate counsel raised eighty-nine

assignments of error, but did not assert a conflict of interest claim. At

the state habeas hearing, Stein testified that, at the time Williams'

brief on direct appeal was prepared, he was aware of general conflict

of interest law. However, Stein had no recollection of making a decision on whether to raise a conflict of interest claim. Stein also testified, in reference to Harris' testimony at the sentencing phase of

 11
Williams' trial, that Harris' testimony should have alerted him to a

potential conflict of interest. Also of note, in Williams' brief on direct

appeal, counsel preserved an issue, even though it was not being

raised on direct appeal, by noting the issue and explaining that counsel felt additional evidence needed to be developed. The issue concerned the trial court's denial of Williams' motion for new trial.

We are of the opinion that Williams has not established cause to

excuse the procedural default of his conflict of interest claim because

the record reflects Williams could have raised this claim on direct

appeal. First, there was no state law barrier preventing Williams from

raising a conflict of interest claim on direct appeal. Indeed, the North

Carolina Supreme Court has addressed conflict of interest claims on

direct appeal. See, e.g., State v. Bruton, 474 S.E.2d 336, 343 (N.C.

1996) (no ineffective assistance of counsel when both defendants

were represented by same lawyer at trial). Second, the essential facts

underlying the claim were known or should have been known by Williams' appellate counsel. Williams' appellate counsel were well aware

that the Public Defender's Office briefly represented Williams and

Massey and were aware of the substance and approximate timing of

Massey's statements to Harris and Wells. Williams' appellate counsel

were also aware of the strategic reasons cited by Williams' trial counsel in support of the decision not to introduce Massey's statements.

For these reasons, Williams has not met his burden of "`showing that

the factual or legal basis for [the conflict of interest] claim was not

reasonably available to counsel.'" McClesky , 499 U.S. at 494 (quoting

Murray, 477 U.S. at 488).11

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11 In support of his argument, Williams relies on an affidavit from Stein

dated June 11, 1997, which was proffered for the first time in the district

court after the district court ruled against Williams. In his affidavit, Stein

states that he did not believe that he or Petersen was in possession of sufficient facts to raise the conflict of interest issue on direct appeal. Stein's

affidavit contradicts his earlier testimony at the state habeas hearing that

he had no recollection of a conflict of interest issue. Additionally, it is

apparent from the state court record that appellate counsel for Williams

simply failed to recognize the conflict of interest issue. Specifically, as

evidenced by counsels' reservation of the issue concerning Williams'

motion for new trial, if Williams' appellate counsel recognized the conflict of interest issue, the issue would have been raised and reserved. In

 12
Even if we were to agree with Williams that cause exists to excuse

his procedural default, Williams cannot establish prejudice. The Sixth

Amendment guarantees criminal defendants the right to effective

assistance of counsel, including the right to representation free of conflicts. See Strickland, 466 U.S. at 688; United States v. Swartz, 975

F.2d 1042, 1047 (4th Cir. 1992). To prevail on a conflict of interest

claim, a petitioner must establish the existence of an actual conflict

of interest, see Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). To

establish an actual conflict of interest, the petitioner must show that

his interests "diverge[d] with respect to a material factual or legal

issue or to a course of action." Id. at 356 n.3 (Marshall, J., concurring

in part and dissenting in part). Additionally, the petitioner must establish that the actual conflict adversely affected his counsel's performance. See id. at 348; Swartz, 975 F.2d at 1048. The adverse

performance prong is met if the attorney took action on behalf of one

client that was necessarily adverse to the defense of the other or failed

to take action on behalf of one because it would adversely affect the

other. See United States v. Tatum, 943 F.2d 370, 376 (4th Cir. 1991).

If the petitioner makes these showings, prejudice is presumed and he

is entitled to habeas relief. See Cuyler, 446 U.S. at 349-50. The question of whether counsel labored under an actual conflict of interest

that affected counsel's performance is a mixed question of law and

fact that we review de novo. See id. at 342.

Even if we assume the existence of an actual conflict, Williams has

not established that any conflict adversely affected his counsels' performance. Williams argues that the Public Defender's Office's representation of him was adversely affected by Harris' brief

_________________________________________________________________

any event, Stein's June 1997 affidavit cannot be considered on federal

collateral review absent a showing of cause and prejudice, or a fundamental miscarriage of justice. See Keeney v. Tamayo-Reyes, 504 U.S. 1,

8-12 (1992) (holding that when a state has given a petitioner a full and

fair hearing on a claim and he has failed to develop material facts to support it, he is not entitled to develop further facts in a federal habeas evidentiary hearing unless he demonstrates either cause for the failure and

prejudice resulting therefrom or a fundamental miscarriage of justice).

Williams points to nothing that would suggest this evidence could not

have been developed in state court.

 13
representation of Massey because, during his brief representation of

Massey, Harris negotiated a plea agreement on behalf of Massey with

the State. However, there is no evidence that Harris or anyone else at

the Public Defender's Office negotiated a plea agreement on behalf

of Massey in the brief time that the Public Defender's Office was

involved in her case. Neither Harris nor anyone from his office testified that such a plea bargain arrangement had been discussed with the

prosecution, and, given the timing of such a small window of opportunity, it is highly unlikely that such a discussion could have taken

place. While Massey's attorney, James Funderburk, may have

assumed that Massey would testify for the State pursuant to a plea

agreement, it does not follow that the Public Defender's Office

already had made such an arrangement with the prosecution. In short,

Williams' claim on this score is too speculative to infer that Williams'

counsels' performance was adversely affected by Harris' brief representation of Massey.

Williams also claims that the Public Defender's Office's representation of him was adversely affected by Harris' brief representation

of Massey because Williams' trial counsel, due to the conflict, were

unable to effectively cross-examine Massey about her statements concerning Larry Currus. However, the statements concerning Currus did

not impeach Massey, and it was reasonable for Williams' trial counsel

to refrain from questioning Massey about such statements. Massey's

statements to Harris and Wells did not implicate Currus. The statements only alluded to his being armed, dangerous, and threatening.

Therefore, Massey's statements concerning Currus did not conflict

with her statements that Williams was the perpetrator. Under such circumstances, Williams' counsels' performance was not adversely

affected by the decision to forego questioning Massey about her statements concerning Currus.

Finally, Williams argues that his trial counsels' performance was

adversely affected by Harris' brief representation of Massey because

Harris was called as a witness during the sentencing phase of his trial.

Harris was called to testify as to Massey's physical and emotional

condition on the afternoon of June 12, 1979, in an attempt to show

that Massey's statements may have been coerced. Harris testified that

Massey was "hysterical" and "emotionally upset." According to Williams, he was prejudiced because the attorney-client privilege pre-

 14
vented Harris from testifying about Massey's reference to Currus.

However, as noted above, Massey's statements regarding Currus were

of no help to Williams. In any event, the same information Williams

sought through Harris was available through Massey. Accordingly,

Harris' testimony at the sentencing phase of Williams' trial had no

adverse affect on Williams' trial counsels' performance.

In summary, we have thoroughly reviewed the record in this case

and are confident that Williams' trial counsels' performance was not

adversely affected by Harris' brief representation of Massey. Accordingly, Williams has not established that he was prejudiced by the procedural default of his conflict of interest claim. 12

B

Next, Williams, who is black, argues that the foreman of the grand

jury that indicted him was selected in a racially discriminatory manner in violation of the Equal Protection Clause of the Fourteenth

Amendment. Williams' argument is premised on his allegations that:

(1) Gaston County had a black population of 12.1% in 1970 and

12.2% in 1980; (2) in the years preceding his indictment, a "substantial number" of blacks had served on Gaston County grand juries; and

(3) prior to the date of his indictment, no black had ever served as

grand jury foreman in Gaston County.

_________________________________________________________________

12 Williams also argues that his appellate counsel were constitutionally

ineffective for failing to raise the conflict of interest issue on direct

appeal. This claim was rejected on the merits by the state habeas court.

The claim was raised on appeal from the denial of state habeas relief, but

the North Carolina Supreme Court denied certiorari review. Accordingly,

the claim is preserved for our review. Under Strickland, a defendant is

deprived of the assistance of counsel guaranteed by the Constitution

when counsel's performance falls "below an objective standard of reasonableness" and "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694. For the same reasons why Williams cannot establish prejudice to excuse the procedural default of his

conflict of interest claim, he cannot establish that he was prejudiced by

his appellate counsels' failure to raise the claim on direct appeal. In all

events, the result of Williams' trial and appeal would have been the

same.

 15
Williams raised this claim for the first time on state habeas.13 The

state habeas court dismissed the claim pursuant to North Carolina

General Statutes § 15A-1419(a)(3) because the claim could have been

raised on direct appeal, but was not. The claim was raised on appeal

to the North Carolina Supreme Court from the denial of state habeas

relief, but that court denied certiorari review. Because North Carolina

General Statutes § 15A-1419(a)(3) is an independent and adequate

state ground, see Ashe, 39 F.3d at 87-88; O'Dell, 95 F.3d at 1241,

Williams must establish cause and prejudice to excuse the procedural

default.

Williams argues that he has established cause to excuse the procedural default. According to Williams, this claim was novel at the time

of his direct appeal and, therefore, "unavailable." This argument has

no merit.

In fact, far from being novel, the legal framework for developing

the claim Williams seeks to press here was in place three years before

Williams' direct appeal in 1982. In July 1979, the Supreme Court in

Rose v. Mitchell, 443 U.S. 545 (1979), had before it a case in which

the petitioners alleged that discrimination in the selection of a Tennessee grand jury foreman violated their rights under the Equal Protec-

_________________________________________________________________

13 On direct appeal, Williams alleged that the trial court erred in refusing to dismiss his indictment on the ground that the grand jury and petit

jury venires were selected in a racially discriminatory manner. The North

Carolina Supreme Court held that the trial court properly denied Williams' request to dismiss the indictment, because the parties stipulated

that there was no evidence of any intentional discrimination in the preparation of the master jury panel lists for Gaston County from which the

grand jury members and petit jury members were drawn and "counsel did

not investigate other sources from which information as to the racial

computation of the master jury panel might be determined." Williams,

292 S.E.2d at 252. On direct appeal, Williams also challenged the trial

court's refusal to order the State to provide funds so that Williams could

hire a statistician to assist him in developing his challenges to the grand

jury and petit jury venires. The North Carolina Supreme Court rejected

this argument on the basis that Williams failed to demonstrate that there

was a reasonable likelihood that the appointment of a statistician would

have materially assisted him in the preparation or presentation of his contentions. Id. at 252-53.

 16
tion Clause. The Supreme Court "assume[d] without deciding that

discrimination with regard to the selection of only the foreman

requires that a subsequent conviction be set aside, just as if the discrimination . . . had tainted the selection of the entire grand jury

venire," id. at 551-52 n.4, but held that the petitioners failed to make

out a prima facie case of discrimination, see id. at 573-74. We recognize that the Court in Rose did not decide the issue pressed here, but

merely assumed without deciding that a conviction could be vacated

on the basis of race discrimination in the selection of the grand jury

foreman. Nevertheless, the underlying theory that racial discrimination in the selection of the grand jury foreman could violate the Equal

Protection Clause was the heart of the petitioners' case in Rose. If the

petitioners in Rose were in a position to assert the claim before the

Supreme Court a year before Williams' trial and three years before

his direct appeal, then obviously Williams was in a position to raise

the claim at trial or on direct appeal. Because Williams had the benefit of the Supreme Court's decision in Rose, he possessed the legal

"tools to construct [this] constitutional claim." Engle v. Issac, 456

U.S. 107, 133 (1982). Therefore, he has failed to establish cause to

excuse the procedural default.14

C

Williams also argues that he was sentenced to death for the murder

of Joines in the absence of a finding that he actually killed Joines,

intended to kill Joines, or was a major participant in Joines' murder

in violation of Enmund v. Florida, 458 U.S. 782 (1982). The State

concedes this issue was exhausted in state court because the substance

of the claim was raised on direct appeal to the North Carolina

_________________________________________________________________

14 Even if we were able to proceed beyond the threshold question of

procedural default, the nonretroactivity doctrine of Teague would bar our

consideration of the merits. In Nickerson v. Lee , 971 F.2d 1125 (4th Cir.

1992), we held "that a rule barring discrimination in the selection of

North Carolina grand jury foremen as violative of the Equal Protection

Clause would be a new rule of law" under Teague and, therefore, not

cognizable on federal habeas review. Id. at 1134. Because, for purposes

of Teague, Nickerson's conviction became final after Williams' conviction, the rule of law espoused by Williams is necessarily "new" under

Teague.

 17
Supreme Court. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.),

cert. denied, 118 S. Ct. 102 (1997) (noting that a claim is exhausted

if substance of the claim is presented to the state's highest court). Furthermore, the State does not argue that the principles of nonretroactivity announced in Teague v. Lane, 489 U.S. 288 (1989), bar our

consideration of Williams' Enmund claim because Enmund was

decided on July 2, 1982, before Williams' conviction became final for

Teague purposes on November 29, 1982. Accordingly, we may proceed to the merits of Williams' Enmund claim.

Enmund was a felony-murder case in which the Court held that a

death sentence violates the Eighth Amendment when the defendant

lacked the intent to kill or cause death. See Enmund, 458 U.S. at

798-801; Fairchild v. Norris, 21 F.3d 799, 802 (8th Cir. 1994). The

intent requirement is satisfied when the defendant is a major participant in either the killing or underlying felony, and is recklessly indifferent to human life. See Tison v. Arizona, 481 U.S. 137, 158 (1987);

Fairchild, 21 F.3d at 802-03. Thus, the defendant need not have had

the specific intent to kill the victim. See Tison, 481 U.S. at 157;

Fairchild, 21 F.3d at 802.

The evidence in this case satisfied the Enmund standard because

Williams was a major participant in the murder itself, and his actions

showed a reckless indifference to Joines' life. Williams got out of the

car carrying his loaded shotgun, went inside the Service Distributors

station, stood behind or over Joines, and shot Joines in the back of his

head after the robbery had been accomplished. Manifestly, these circumstances satisfy the standard set forth in Enmund and its progeny.

D

Next, Williams argues that the jury was improperly instructed as to

its consideration of mitigating circumstances in violation of McKoy

v. North Carolina, 494 U.S. 433 (1990). Williams acknowledges this

claim is procedurally defaulted under North Carolina General Statutes

§ 15A-1419(a)(3) because, as the state court held, the claim could

have been raised on direct appeal.

Williams argues that even if this claim is procedurally defaulted,

we nevertheless may consider it on the merits because he has shown

 18
cause and prejudice to excuse the procedural default. Specifically, he

maintains that his appellate counsel were constitutionally ineffective

for failing to pursue on direct appeal the McKoy claim he now wishes

to press. As noted earlier, if appellate counsel were constitutionally

ineffective under the standard established in Strickland, cause is

established to excuse the procedural default. See Coleman, 501 U.S.

at 753. Under Strickland, a defendant is deprived of the assistance of

counsel guaranteed by the Constitution when counsel's performance

falls "below an objective standard of reasonableness" and "there is a

reasonable probability that, but for counsel's unprofessional errors,

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

466 U.S. at 688, 694.

In McKoy, the Supreme Court struck down the North Carolina

practice that required a capital sentencing jury to find mitigating circumstances unanimously before they could be considered for the purpose of sentencing. McKoy, 494 U.S. at 439-44. The Court held that

the unanimity requirement limited the individual juror's consideration

of mitigating circumstances and was therefore unconstitutional. Id.

Williams claims that if the jury had been properly instructed, the

result of the sentencing phase of his trial would have been different.

This argument, as Williams apparently concedes, is premised on the

proposition that the instructions ran afoul of McKoy. In determining

whether the jury instructions violated McKoy, the question is

"whether there is a reasonable likelihood that the jury has applied the

challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370,

380 (1990).

In this case, the trial court did not give the explicit unanimity

instruction on mitigating circumstances that was struck down by the

Court in McKoy. The jury was instructed to answer four issues in

reaching its decision at the sentencing phase of the trial: (1) whether

the jury unanimously found, beyond a reasonable doubt, the existence

of the aggravating circumstance; (2) whether the jury unanimously

found, beyond a reasonable doubt, that the aggravating circumstance

was sufficiently substantial to call for imposition of the death penalty;

(3) whether the jury found one or more mitigating circumstances; and

(4) whether the jury unanimously found, beyond a reasonable doubt,

that the aggravating circumstances outweighed the mitigating circum-

 19
stances. We have upheld this portion of the instructions as not violative of McKoy on several occasions. See Noland v. French, 134 F.3d

208, 213-14 (4th Cir. 1998); Smith v. Dixon, 14 F.3d 956, 981 n.15

(4th Cir. 1994) (en banc); Lawson v. Dixon, 3 F.3d 743, 754 (4th Cir.

1993); Maynard v. Dixon, 943 F.2d 407, 418-20 (4th Cir. 1991).

The trial court also instructed the jury that it had to be unanimous

as to its sentencing recommendation. Just before releasing the jury to

deliberate at the sentencing phase of the trial, the trial court instructed

the jury: "When you have agreed upon--unanimously agreed upon

your recommendation according to the instructions I have given you,

have your foreman write in your recommendation at the bottom part

of the second page of this form." On the heels of this instruction, the

trial court instructed: "When you agree upon your recommendation

unanimously and are ready to deliver it, have it filled in and signed

as I instructed you, notify the bailiff, and you will be returned into the

courtroom." Williams argues these instructions distinguish this case

from Noland, Smith, Lawson, and Maynard. According to Williams,

this instruction created a reasonable likelihood that the jury understood the sentencing instructions as requiring unanimity for the finding of mitigating circumstances. We disagree.

While the trial judge did mention that the jury must be unanimous

as to its recommendation, the trial court did not state explicitly or

imply that unanimity was required as to the existence of mitigating

circumstances. The isolated reference--which came after the trial

court explained in detail the issues the jury needed to resolve and in

the form of a supplemental instruction just before the jurors retired to

deliberate--merely underscored the unanimity requirement as to the

jury's ultimate sentencing recommendation and the requisite issues

the State had to prove unanimously in order for the jury to return a

death sentence. No reasonable juror would have understood from

these remarks that there was a unanimity requirement for the finding

of mitigating circumstances, particularly when the earlier, more comprehensive instructions had not referred to such a requirement. See

Noland, 134 F.3d at 213-14 (upholding similar instruction under

McKoy even though the jury was instructed, just prior to deliberations, that "[a]fter you have reached a unanimous decision as to each

issue . . . have your Foreman mark the appropriate place or places on

the issues and recommendations forms"); see also Arnold v. Evatt,

 20
113 F.3d 1352, 1363 (4th Cir. 1997) (even though court instructed

jury that its sentencing verdict must be unanimous and that it must

unanimously find the existence of any aggravating circumstances,

there was no substantial probability that the jury could have thought

it must agree unanimously as to the existence of any mitigating circumstances), cert. denied, 118 S. Ct. 715 (1998). In the absence of a

McKoy violation, Williams cannot demonstrate that his appellate

counsel were constitutionally ineffective and, therefore, he cannot

establish cause to excuse the procedural default. 15

E

Williams also argues that evidence presented at his trial and sentencing necessitated the submission to the jury of two statutory miti-

_________________________________________________________________

15 Williams also challenges another instruction given at the sentencing

phase of his trial. He contends that the trial court's instruction directing

the jury to reject non-statutory mitigating circumstances if the evidence

supporting the non-statutory mitigating circumstance lacked mitigating

value prevented the jury from considering constitutionally relevant mitigating evidence in violation of his Eighth and Fourteenth Amendment

rights. Williams concedes that this claim is procedurally defaulted

because it could have been raised on direct appeal, see N.C. Gen. Stat.

§ 15A-1419(a)(3). Even if Williams could establish cause to excuse the

procedural default, he cannot establish that he was prejudiced by the

instruction. There is simply no constitutional requirement that a sentencing jury must give effect or value to any evidence offered in mitigation.

See Johnson v. Texas, 509 U.S. 350, 368 (1993). Rather, a state is only

prohibited from "placing relevant mitigating evidence `beyond the effective reach of the sentencer.'" Id. at 362 (quoting Graham v. Collins, 506

U.S. 461, 475 (1993)). Thus, although a state may not eliminate the presentation of relevant mitigating evidence or preclude the jury from considering certain types of mitigating evidence, a state is free to guide the

jury in its consideration of relevant mitigating evidence. See id.; see also

Boyde, 494 U.S. at 370 ("[T]here is no . . . constitutional requirement of

unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to

achieve a more rational and equitable administration of the death penalty.") (citation and internal quotes omitted). Because the trial court's

instructions on the procedure for finding non-statutory mitigating circumstances did not place relevant mitigating evidence beyond the reach

of the jury, Williams' claim of prejudice fails.

 21
gating circumstances, North Carolina General Statutes

§ 15A-2000(f)(2) (crime committed under the influence of mental disturbance) and North Carolina General Statutes § 15A-2000(f)(6)

(defendant lacked the capacity to appreciate the criminality of his

actions). This contention is meritless.

The state habeas court held that Williams was in a position to adequately raise this claim on direct appeal, but did not do so, and, therefore, the claim was procedurally defaulted under North Carolina

General Statutes § 15A-1419(a)(3). Williams raised this claim before

the North Carolina Supreme Court on appeal from the denial of state

habeas relief, but that court denied certiorari review. Because North

Carolina General Statutes § 15A-1419(a)(3) is an independent and

adequate state ground, see Ashe, 39 F.3d at 87-88; O'Dell, 95 F.3d at

1241, we can consider only whether cause and prejudice exists to

excuse the procedural default.

Williams urges us to excuse the procedural default on the basis that

his trial counsels' failure to request the submission of these two statutory mitigating circumstances rendered his trial counsel ineffective.

This argument founders because the decision not to submit these two

statutory mitigating circumstances was a quintessential tactical one.

Williams' counsel reviewed the psychiatric reports and concluded that

the evidence in the reports did not support the submission of either

the (f)(2) or the (f)(6) mitigating circumstances. Rather than introduce

the reports into evidence and risk the admission of damaging information about the Pierce murder, counsel for Williams and the State stipulated to Williams' I.Q. of 69, and then requested the submission of

the I.Q. of 69 as a non-statutory mitigating circumstance. Neither of

Williams' counsel felt that an I.Q. of 69 supported, by itself, the submission of the (f)(2) or (f)(6) statutory mitigating circumstances.

Therefore, the failure of Williams' counsel to seek the submission of

either the (f)(2) or the (f)(6) mitigating circumstance was tactical, and

cannot be second-guessed by this court. See Smith, 477 U.S. at 534

("[A] deliberate, tactical decision not to pursue a particular claim is

the very antithesis of the kind of circumstance that would warrant

excusing a defendant's failure to adhere to a State's legitimate rules

for the fair and orderly disposition of criminal cases."); Murray, 477

U.S. at 485 (default "pursuant to a trial strategy or tactical decision"

of counsel does not constitute cause).

 22
F

Next, Williams argues that his trial counsel were ineffective for

failing to investigate certain witness statements. On June 4, 1980, during Williams' trial, Joel Groves, an investigator in the Public Defender's Office, interviewed four Gaston County Jail inmates: John Poag,

Bernard Taylor, Marvin Ledbetter, and Michael Johnson. Poag told

Groves that Brawley told him that he (Brawley) had lied about Williams at Williams' Cabarrus County trial and that, contrary to Brawley's testimony at both trials, Brawley had not witnessed Williams

rob or shoot anyone. Johnson, Ledbetter, and Taylor corroborated all

or part of Poag's account of his conversation with Brawley. Williams

contends that trial counsels' failure to introduce the testimony of

Poag, Taylor, Ledbetter, and Johnson rendered his trial counsels' performance ineffective.

The state habeas court held that Williams was in a position to adequately raise this claim on direct appeal, but did not do so, and, therefore, the claim was procedurally defaulted under North Carolina

General Statutes § 15A-1419(a)(3). On appeal from the denial of state

habeas relief, Williams raised this claim, but the North Carolina

Supreme Court denied certiorari review. Because North Carolina

General Statutes § 15A-1419(a)(3) is an independent and adequate

state ground, see Ashe, 39 F.3d at 87-88; O'Dell, 95 F.3d at 1241,

Williams must establish cause and prejudice to excuse the procedural

default.

Even if Williams could establish cause to excuse the procedural

default of this claim, he cannot establish prejudice. To establish prejudice, Williams must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170. Williams has not met

this burden. The record reflects that Williams' counsel extensively

cross-examined Brawley during the guilt phase of the trial regarding

inconsistent statements Brawley made at the Gaston County Jail and

to the police. Therefore, any impeachment value derived from the

four witnesses would have been cumulative at best.

 23
G

Williams' remaining arguments require little discussion. First, Williams challenges the trial court's felony murder instruction and

"course of conduct" aggravating circumstance instruction. He contends these instructions violated his Sixth, Eighth, and Fourteenth

Amendments rights. Second, Williams argues that the trial court

excused three prospective jurors during a private, unrecorded bench

conference in violation of his right to be present during all critical

stages of trial guaranteed by the Sixth and Fourteenth Amendments.

These arguments are meritless.

Williams presented these claims on state habeas, and the state court

found that they were procedurally defaulted under North Carolina

General Statutes § 15A-1419(a)(3) because Williams failed to raise

these claims on direct appeal. Williams raised these claims before the

North Carolina Supreme Court on appeal from the denial of state

habeas relief, but that court denied certiorari review. Because North

Carolina General Statutes § 15A-1419(a)(3) is an independent and

adequate state ground, see Ashe, 39 F.3d at 87-88; O'Dell, 95 F.3d at

1241, we can consider only whether cause and prejudice exists to

excuse the procedural default. Williams points to nothing that would

suggest the first time he could have raised these claims was on state

habeas. Accordingly, he has failed to establish cause for the procedural default of these claims.16

III

For the reasons stated herein, the judgment of the district court

should be affirmed.

AFFIRMED

_________________________________________________________________

16 Williams also contends that the district court abused its discretion in

failing to address claims that were raised in his original habeas petition

but were not restated in his amended petition. We have reviewed this

assignment of error and find it to be without merit. Furthermore, we have

examined these claims and conclude that they provide no basis for

habeas relief.

 24