UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-8374

WILLIAM HARVEY COUSINS,

Petitioner – Appellant,

v.

KATHLEEN S. GREEN, Warden; DOUGLAS F. GANSLER, Attorney 

General of Maryland,

Respondents – Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Catherine C. Blake, District Judge. 

(1:06-cv-01053-CCB)

Argued: January 25, 2011 Decided: March 16, 2011

Before KING, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished opinion. Judge King wrote the opinion, 

in which Judge Agee and Judge Davis joined.

ARGUED: Katie Serfas, WAKE FOREST UNIVERSITY, School of Law, 

Appellate Advocacy Clinic, Winston-Salem, North Carolina, for 

Appellant. Mary Ann Rapp Ince, OFFICE OF THE ATTORNEY GENERAL 

OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: John 

J. Korzen, Director, Megan Elizabeth Bode, Eleanor Rhoades 

Trefzger, WAKE FOREST UNIVERSITY, School of Law, Appellate 

Advocacy Clinic, Winston-Salem, North Carolina, for Appellant. 

Douglas F. Gansler, Attorney General of Maryland, Baltimore, 

Maryland, for Appellees.
2

Unpublished opinions are not binding precedent in this circuit.
3

KING, Circuit Judge:

William Harvey Cousins, a Maryland prisoner, appeals from 

the district court’s denial of his 28 U.S.C. § 2254 habeas 

corpus petition, in which he asserts that a violation of his 

Sixth Amendment right to the effective assistance of counsel 

undermines his Maryland convictions. See Cousins v. Green, No. 

1:06-cv-01053 (D. Md. Oct. 10, 2008) (the “Federal Opinion”).1 

More specifically, as spelled out in our certificate of 

appealability (the “COA”), Cousins maintains that his “trial 

counsel provided ineffective assistance by failing to adequately 

investigate and discover an exculpatory witness” (the 

“Ineffective Assistance Claim,” or the “Claim”). For the 

reasons explained below, we reject the Ineffective Assistance 

Claim and affirm the district court.

I.

A.

In August 1996, Cousins was tried in the Circuit Court for

Prince George’s County, Maryland, on charges of first-degree 

murder and use of a handgun in the commission of a crime of 

violence, arising from the December 22, 1995 shooting death of 

 1 The unpublished Federal Opinion is found at J.A. 1113-29. 

(Citations herein to “J.A. ___” refer to the contents of the 

Joint Appendix filed by the parties in this appeal.)
4

Steven Moeller. The prosecution’s theory was that Cousins had 

been involved in a traffic dispute with Moeller, threatened to 

kill him, and followed up on the death threat by shooting 

Moeller a few days later. Lacking eyewitness testimony, the 

prosecution relied heavily at trial on two witnesses who said

that Cousins had confessed to Moeller’s shooting: Ebony 

Coleman, a former friend of Cousins; and Betty Mills, who was 

Coleman’s aunt. The defense theory was that Coleman himself was 

the likely shooter, and that Cousins was the “victim of a coverup designed to exonerate one person and implicate another.” Br. 

of Appellant 3. In defending Cousins, his lawyer called three 

witnesses, including Cousins himself. The jury convicted 

Cousins on both charges — murder (albeit in the second degree)

and use of a handgun in the commission of a crime of violence. 

On September 13, 1996, Cousins was sentenced to thirty years on 

the murder conviction, plus a consecutive term of twenty years

on the handgun conviction. 

B.

After his sentencing, Cousins appealed to the Court of 

Special Appeals of Maryland, raising several issues that are

unrelated to the Ineffective Assistance Claim. Cousins’s 

convictions and sentence were affirmed on appeal, see Cousins v. 

State, No. 1425 (Md. Ct. Spec. App. May 19, 1997), and the Court 

of Appeals of Maryland thereafter denied certiorari, see Cousins 
5

v. State, 697 A.2d 913 (Md. 1997). Cousins then filed two state 

habeas corpus petitions — on December 18, 1997, and October 30, 

1998 — both of which were withdrawn without prejudice. In his

aborted state habeas petitions, Cousins presented multiple 

ineffective assistance claims that were also unrelated to the 

Claim before us today.

On March 5, 2002, Cousins, proceeding pro se, filed another

petition for state habeas corpus relief in the Circuit Court for 

Prince George’s County, for the first time raising the 

Ineffective Assistance Claim that underlies this appeal. 

Cousins maintained that his lawyer was constitutionally

ineffective in failing to investigate and secure the testimony 

of an exculpatory eyewitness, William Smoot. The state habeas

court appointed counsel for Cousins, who subsequently filed two 

supplemental habeas petitions.2

 2 In his various state habeas petitions, Cousins asserted at 

least four ineffective assistance claims, and also contended 

that the prosecution’s failure to disclose an exculpatory police 

report violated Brady v. Maryland, 373 U.S. 83 (1963). 

The state court then conducted

an evidentiary hearing on the Ineffective Assistance Claim,

beginning on September 20, 2004, when it heard from two 

witnesses: Cousins and his trial lawyer. After those 

proceedings, the court continued the evidentiary hearing for 
6

several months until Smoot, who was incarcerated, could appear

and testify.

On March 7, 2005, Smoot testified before the state habeas 

court, asserting that, at the time of Moeller’s shooting, Smoot

was on his way to visit a friend, Ruth Wingate, who lived two 

doors from the Moeller murder scene. While exiting his vehicle, 

Smoot “heard some gunshots” and saw “somebody leaning out the 

window.” J.A. 1009. That “somebody” was Ebony Coleman, one of 

the key prosecution witnesses against Cousins, and the person on

whom the defense had sought to blame the Moeller murder. Id. at 

1011. Smoot did not report what he saw to the police or anyone

else, but instead fled the scene before seeing or speaking to 

Wingate. 

In the state habeas court’s evidentiary hearing, Smoot

offered the following testimony concerning whether Wingate knew 

that he was near her home when the Moeller shooting occurred:

Q [Direct]: But she knew you were there when it 

happened based on your understanding?

A: Yes.

* * *

Q [Cross]: So when the shooting occurred Ms. 

Wingate didn’t know that you were outside; is that 

correct?

A: Right.

* * *
7

Q [Redirect]: You testified on direct that Ruth 

Wingate did know you were there the night of the 

shooting?

A: She knew, she knew — she should have known that I 

was outside at the door because I was on my way to her 

house, I was at her house. She knew I was coming to

her house.

* * *

THE COURT: But did she know you were actually 

there?

A: She didn’t know I was actually there at the time 

that incident occurred.

Q: But later she did find out that you were there?

A: Correct.

J.A. 1017-21. According to Smoot, at “some point after the 

shooting,” he spoke with his friend Wingate, but failed to tell 

her what he had seen near her home on the occasion of Moeller’s 

murder. Id. at 1019. Indeed, Smoot never specified when or how 

Wingate had “later” discovered that he was near her home when 

Moeller was shot.

In May 2005, two months after its evidentiary hearing, the 

state habeas court — applying Strickland v. Washington, 466 U.S. 

668 (1984) (recognizing that ineffective assistance entails

deficient performance and resulting prejudice) — rejected the 

Ineffective Assistance Claim, concluding that “there was no way 

for trial counsel to have discovered [Smoot] even after doing a 

reasonable investigation.” State v. Cousins, No. 96-091X, slip 
8

op. at 4 (Md. Cir. Ct. May 11, 2005) (the “State Opinion”).3

On June 10, 2005, Cousins filed an application in the Court 

of Special Appeals of Maryland for leave to appeal the state 

habeas court’s rejection of the Ineffective Assistance Claim. 

That application for appeal was denied on October 26, 2005. On 

February 2, 2006, the Court of Special Appeals also denied a

motion for reconsideration of its denial of an appeal.

 

Ultimately, according to the State Opinion, “there was no way 

that trial counsel could have independently known of Mr. Smoot 

because he never came forward to the police nor did he tell 

anyone what he witnessed.” Id. Thus, without reaching the 

question of whether Cousins’s lawyer had performed deficiently, 

the state court denied the Claim for failure to show prejudice. 

C.

On April 26, 2006, Cousins, again proceeding pro se, filed 

his 28 U.S.C. § 2254 petition in the District of Maryland. His 

petition presented three constitutional contentions, including

the assertion that his trial counsel was “ineffective for 

failing to investigate and subpoena a witness who saw another 

individual commit the murder.” J.A. 7 (emphasis omitted).4

 3 The State Opinion is found at J.A. 1072-82.

 By 

4 The two other claims presented in Cousins’s § 2254 

petition were that the prosecution violated Cousins’s Brady

rights, and that Cousins’s lawyer was constitutionally 

(Continued)
9

the Federal Opinion of October 10, 2008, the district court 

denied Cousins’s § 2254 petition in all respects. In disposing 

of the Ineffective Assistance Claim, the court explained that,

“[g]iven the witness testimony provided at the post-conviction 

hearing, the state court’s determination that counsel could not 

have independently known of Mr. Smoot is reasonable and wellsupported in the record.” Federal Opinion 12. 

Cousins thereafter timely noticed this appeal, and, on May 

5, 2009, we awarded the COA on the Ineffective Assistance Claim. 

We also appointed counsel to represent Cousins, and we possess 

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

 

II.

We review de novo a district court’s denial of 28 U.S.C. 

§ 2254 habeas corpus relief on the basis of a state court 

record. See Bell v. Ozmint, 332 F.3d 229, 233 (4th Cir. 2003). 

Pursuant to § 2254, however, “the scope of our review is highly 

constrained.” Jackson v. Johnson, 523 F.3d 273, 276 (4th Cir. 

2008). A state court’s factual determinations are presumed to 

be correct, and a § 2254 applicant bears the burden of rebutting 

this statutory presumption by “clear and convincing evidence.” 

 

ineffective for failing to seek the exclusion of evidence of his 

prior convictions. 
10

§ 2254(e)(1); see Tucker v. Ozmint, 350 F.3d 433, 439 (4th Cir. 

2003). Section 2254 relief may only be awarded if the state 

court’s adjudication of the claim “(1) resulted in a decision 

that was contrary to, or involved an unreasonable application 

of, clearly established Federal law, as determined by the 

Supreme Court,” or “(2) resulted in a decision that was based on 

an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” § 2254(d). 

III.

The theory underlying the Ineffective Assistance Claim is 

simple: Under the circumstances, Cousins’s lawyer should have 

conducted thorough interviews with persons who lived near the 

scene of Moeller’s murder, and, had the lawyer done so, the

investigation would have revealed, through Ruth Wingate, that 

William Smoot was present at the murder scene when the fatal 

shots were fired. Moreover, having identified Smoot and secured 

his trial testimony, the defense theory that it was Ebony 

Coleman who had murdered Moeller would have been bolstered to 

the point that Cousins would not have been convicted.

A.

As the state habeas court correctly recognized, the 

Ineffective Assistance Claim is governed by the Supreme Court’s 

seminal decision in Strickland v. Washington, 466 U.S. 668 
11

(1984). The Strickland decision explained that a state prisoner 

alleging constitutionally ineffective assistance must show (1) 

deficient performance, i.e., “that counsel’s representation fell 

below an objective standard of reasonableness,” 466 U.S. at 688, 

plus (2) resulting prejudice, i.e., “that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different,” id. at 694. 

These two requirements — deficient performance plus prejudice —

are commonly referred to as Strickland’s “performance” and 

“prejudice” prongs.

Although an ineffective assistance claim must satisfy both

of the Strickland prongs, the Supreme Court has recommended

that, when possible, the prejudice prong should be first 

addressed. Indeed, Strickland itself explained that there is no 

need “to address both components of the inquiry if the defendant 

makes an insufficient showing on one.” 466 U.S. at 697. As 

Justice O’Connor recognized,

a court need not determine whether counsel’s 

performance was deficient before examining the 

prejudice suffered by the defendant as a result of the 

alleged deficiencies. The object of an 

ineffectiveness claim is not to grade counsel’s 

performance. If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of 

sufficient prejudice, which we expect will often be 

so, that course should be followed.

Id. Here, the state habeas court disposed of the Ineffective 

Assistance Claim in the procedural manner recommended by the 
12

Strickland decision, first addressing the prejudice prong and

concluding that Cousins was unable to show prejudice. The state 

habeas court then declined to assess the performance prong at 

all. Accordingly, we begin our review of the Claim by assessing 

Cousins’s contention on the prejudice prong of Strickland.

B.

In order to properly analyze the prejudice prong of an 

ineffective assistance claim (without first assessing the

performance prong), a court must assume that the lawyer

performed deficiently. Next, the court must simply determine

whether the lawyer’s assumed deficiency had the potential of 

influencing the outcome of the proceedings. Often, a habeas 

petitioner alleges that his lawyer’s deficiency involved a

failure to introduce a critical piece of evidence, or a failure 

to adduce critical testimony. In such a circumstance, the

prejudice analysis necessitates an assessment of the effect, if 

any, the unintroduced evidence might have had on the verdict, in 

light of the evidence actually presented. See, e.g., United 

States v. Roane, 378 F.3d 382, 409 n.15 (4th Cir. 2004)

(examining credibility and weight of evidence to determine 

whether failure to call potential witness affected outcome of 

trial); Fisher v. Lee, 215 F.3d 438, 451 (4th Cir. 2000) 

(assessing likely effect of testimony from potential witnesses 

in light of other evidence). 
13

Here, by contrast, the state habeas court never reached the 

issue of how Smoot’s evidence would have been perceived by the 

jury, because the State Opinion concluded that his testimony

would not have been available at trial even if Cousins’s lawyer

had conducted the comprehensive neighborhood investigation now 

being suggested. Accordingly, we need only examine the factual 

basis for that conclusion. And, if it is a well-founded

conclusion, Cousins is not entitled to § 2254 relief and our 

review ends.

Of course, in conducting our assessment of the Ineffective 

Assistance Claim, we presume that the state habeas court’s

factual findings are correct, and we accord them great 

deference. Indeed, to prevail on his Claim, Cousins is obliged 

to “rebut[] the presumption of correctness by clear and 

convincing evidence,” § 2254(e)(1), and then show that the state 

court’s ruling “was based on an unreasonable determination of 

the facts in light of the evidence presented” during the state 

proceedings, § 2254(d)(2). See Winston v. Kelly, 592 F.3d 535, 

555 (4th Cir. 2010) (“If a petitioner succeeds under 

§ 2254(e)(1), he has merely proven that the state court finding 

was incorrect. To satisfy § 2254(d)(2), the petitioner must 

prove that the state court was not only incorrect, but 

objectively unreasonable.”).
14

C.

Unfortunately for Cousins, the state habeas court provided 

an unassailable factual basis for its ruling that Cousins had 

failed to show prejudice: that “there was no way for trial 

counsel to have discovered [Smoot] even after doing a reasonable 

investigation,” and further, that “[t]here was no way that trial 

counsel could have independently known of Mr. Smoot because he 

never came forward to the police nor did he tell anyone else 

what he had witnessed.” State Opinion 4. Consistent with those

findings, Smoot testified in the state court’s evidentiary 

hearing that, despite claiming to have been an eyewitness to the

Moeller shooting, he had never provided his story to the 

authorities. In fact, until much later, Smoot did not advise

anyone about the events that he had witnessed. Immediately 

after witnessing the Moeller murder, according to Smoot, he got 

into his vehicle and fled the scene.

As a result, the Ineffective Assistance Claim rests on a 

tenuous theory: that a thorough investigation in the 

neighborhood of the murder scene would have uncovered Wingate, 

who in turn would have identified her friend Smoot as an

exculpatory witness. The viability of this theory hinges on 

whether the state court record supports the proposition that

Wingate knew that Smoot was outside her door when Moeller was 
15

shot, and that she would have advised Cousins’s lawyer of that 

fact. 

Importantly, Wingate has never testified in any of these 

proceedings — either in Cousins’s trial or during the state 

habeas court’s evidentiary hearing. Accordingly, there is 

nothing in the record from Wingate concerning her knowledge of 

Smoot’s whereabouts at the time of the Moeller murder. Rather, 

we have only Smoot’s testimony concerning his belief of what 

Wingate knew, or what she ought to have known. In the state 

court’s evidentiary hearing, Smoot initially testified that it 

was his “understanding” that Wingate knew he was outside her 

door when Moeller was shot. J.A. 1017. On cross-examination, 

however, he confirmed that “when the shooting occurred Ms. 

Wingate didn’t know that [he was] outside.” Id. at 1019. 

Pressed further on the point, Smoot equivocated, asserting only 

that Wingate “should have known” he was outside her door because 

he was on his way to her house. Id. at 1021. Smoot eventually 

said that Wingate only “later” found out that he had been 

outside her door when Moeller was shot, and yet failed to ever

specify when or how Wingate had acquired such knowledge. Id. 

As a result, Smoot’s evidence is far from compelling and, absent 
16

a more concrete showing of Wingate’s knowledge, the state habeas 

court was presented with speculation only.5

In these circumstances, we are unable to disturb the state 

habeas court’s factual finding that a reasonable investigation 

would not have revealed Smoot’s purported eyewitness testimony. 

Thus, we are also unable to disagree with the legal conclusion 

to which that finding gives rise: even if Cousins’s lawyer

performed deficiently, his performance did not prejudice the 

outcome of the trial.

 

6

 Accordingly, the Ineffective Assistance 

Claim was properly rejected by the district court, and we must 

affirm.

 5 Notably, Smoot testified that he eventually had a 

conversation with Wingate about the Moeller shooting, during 

which Smoot failed to inform Wingate that he had seen the 

shooting occur. See J.A. 1019. If this evidence is accurate, 

Wingate would have had no reason to suggest Smoot as an 

eyewitness to Moeller’s shooting, even if she had been 

questioned by Cousins’s lawyer.

6 In concluding that Cousins failed to make a showing of 

prejudice sufficient to satisfy Strickland, the state habeas 

court also found — as an alternative basis for its rejection of 

the Ineffective Assistance Claim — that even if Smoot had been 

discovered prior to trial, he “would not have come to court” and 

“would not have testified truthfully.” State Opinion 4. 

Because the state habeas court’s finding that the lawyer could 

not have discovered Smoot was a sufficient basis for its 

prejudice ruling, we need not address the court’s alternative 

basis for that determination.
17

IV.

Pursuant to the foregoing, we affirm the district court’s 

denial of Cousins’s petition for § 2254 habeas corpus relief.

AFFIRMED