Blakeney v. Branker
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
ROGER M. BLAKENEY, Petitioner Appellant, v. GERALD J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent Appellee.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (3:05-cv-00010-RLV)
September 23, 2008
March 5, 2009
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished opinion. Judge King wrote the opinion, in which Judge Michael joined. Judge Gregory wrote a separate opinion concurring in part and dissenting in part.
ARGUED: Burton Craige, PATTERSON HARKAVY, L.L.P., Raleigh, North Carolina, for Appellant. Edwin William Welch, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Jeffrey P. Bloom, Columbia, South Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
KING, Circuit Judge: Roger M. Blakeney ("Blakeney" or "defendant") appeals the district court's denial of his federal habeas corpus petition, by which he seeks to have his North Carolina convictions and death sentence vacated that for the alleged constitutional court erred violations. in three
Blakeney respects: counsel
(1) in denying him relief on the claim that his trial rendered ineffective assistance during sentencing
proceedings; (2) in denying him relief on the claim that the prosecution withheld exculpatory evidence; and (3) by rejecting his request for an evidentiary hearing on the claim that his trial counsel was ineffective in failing to adequately challenge the racial composition of the jury. constrained to affirm. As explained below, we are
I. A. The pertinent details of Blakeney's state trial and the factual predicate for his prosecution were outlined by the
Supreme Court of North Carolina on direct appeal, as follows: On 13 May 1996 defendant Roger McKinley Blakeney (defendant) was indicted for the first-degree murder of Callie Washington Huntley (the victim). Defendant was also indicted for arson, common law robbery, felonious breaking and entering, felonious larceny, and felonious possession of stolen goods. Defendant was tried capitally at the 25 August 1997 Criminal 2
Session of Superior Court, Union County. At the close of the evidence, the state voluntarily dismissed the larceny charge. In addition, the charge of felonious possession of stolen goods was not submitted to the jury. The jury found defendant guilty of first-degree murder on the basis of malice, premeditation, and deliberation and under the felony murder rule. The jury also found defendant guilty of first-degree arson, common law robbery, and felonious breaking and entering. Following a capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction, and the trial court entered judgment in accordance with that recommendation. The trial court also entered judgments sentencing defendant to consecutive terms of imprisonment for the remaining convictions. The state presented evidence at trial which is summarized as follows: On 15 April 1996, between the hours of 10:00 a.m. and 12:00 noon, defendant, age thirty-three, opened and crawled through a back window in his mother's home for the purpose of stealing something of value that he could sell. Defendant stole three of his mother's rings, a brown leather pouch, approximately $4.00 in change, a small herringbone chain, and his mother's savings account deposit book. Defendant then telephoned his wife and told her he would be home in a few minutes. After defendant finished speaking with his wife, the victim, age seventy-six, drove behind the house. The victim had lived with defendant's mother for over twenty years. Defendant hid in a small room behind the refrigerator as the victim entered the residence. According to defendant's confession, which was admitted into evidence at trial, defendant entered the kitchen, and the two began arguing. Defendant told authorities that he turned to leave, but the victim grabbed him. Defendant charged at the victim, grabbed and wrestled a .22-caliber revolver out of the victim's hand, and hit the victim in the back of the head with the butt of the gun. The victim fell facedown on the kitchen floor and started bleeding. According to defendant, after some additional period of physical struggle, a metal can of kerosene was accidentally spilled. Defendant also claimed that a cigarette he was smoking fell out of his mouth at some 3
time during the struggle. According to defendant, at some point, he pulled the victim off the floor, sat him in a chair, and wrapped an electrical cord around his hands and legs. Defendant then removed $78.00 from the victim's wallet, exited the residence, and departed the area in defendant's vehicle. Terry Lee Bivens (Bivens), defendant's longstanding friend, worked at a nearby business and observed defendant departing his mother's residence on the day in question. Bivens recognized defendant's vehicle. Seconds later, Bivens noticed smoke coming from the residence. Bivens and several other witnesses looked on as the house began to burn. Firefighters arrived at the scene and discovered the victim's wire-bound body as they fought the fire. Agent Van Worth Shaw, Jr. (Agent Shaw), an arson investigator for the State Bureau of Investigation (SBI), determined that the fire had two distinct points of origin and was caused by the use of a flammable liquid. In contrast to defendant's statement, all accidental causes were eliminated during the investigation, and Agent Shaw opined that the fire was intentionally set. The investigation revealed traces of kerosene on samples taken from the couch in the den and on the victim's clothing. Dr. Robert Thompson, a forensic pathologist with the Office of the Chief Medical Examiner, performed an autopsy on the victim's body. The autopsy revealed that seventy-five percent of the victim's skin was charred. Dr. Thompson also observed that the victim had received a wound to the back and a wound to the left temporal area of the head, which resulted in injury to the brain. Dr. Thompson opined that the victim was conscious for approximately three to five minutes after the fire started, that the victim died within approximately ten minutes, and that the cause of death was carbon monoxide poisoning produced by the fire. On 16 April 1996 law enforcement officers located defendant at a friend's residence, sitting in the passenger seat of his vehicle. Defendant consented to a search of his vehicle, where the officers found his mother's stolen jewelry, leather pouch, and savings 4
deposit book in the glove compartment. The authorities later recovered the .22-caliber revolver that defendant had taken from the victim. Defendant had exchanged the gun for a loan. The investigation also revealed that bloodstains found on defendant's clothing were consistent with the victim's blood. Defendant did not present guilt-innocence phase of trial. evidence during the
State v. Blakeney, 531 S.E.2d 799, 806-08 (N.C. 2000). 1 to the trial's sentencing phase, the state
observed that the state presented evidence of, and defendant stipulated to, one conviction for robbery with a dangerous weapon. The state's evidence tended to show that, in 1989, defendant robbed a grocery store and struck the store owner in the back of the head with a
The state supreme court provided further details of the murder and its aftermath, as follows: defendant telephoned his wife from his mother's residence, before the victim arrived, and informed her he would be home "in a few minutes." The record reveals, however, that defendant did not return home as planned. Rather, defendant ran from the scene of the crime and departed the area in his vehicle. One of defendant's longstanding friends waved at him, but defendant did not respond. After departing the area, defendant drove to "[Emanuel Blackman's] shack out in the country," where he traded the victim's gun for cocaine and twenty dollars in cash. Defendant then continued to drive through the country, stopping in Pageland, South Carolina, where he traded more stolen items for drugs. Rather than return home, as originally intended, defendant then went to Kenneth Funderburk's house and remained there overnight. Law enforcement officers apprehended defendant at this residence the next afternoon. Blakeney, 531 S.E.2d at 819 (alteration in original).
gun. Evidence at trial also indicated that defendant had a history of drug abuse. * * * [In considering the death penalty on the firstdegree murder conviction,] [t]he jury found four aggravating circumstances: (1) defendant had been previously convicted of a felony involving the use of violence to the person, N.C.G.S. § 15A-2000(e)(3); (2) the murder was committed while defendant was engaged in the commission of first-degree arson, N.C.G.S. § 15A-2000(e)(5); (3) the murder was committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6); and (4) the murder was especially heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9). Of the eight mitigating circumstances submitted, one or more jurors found the following: (1) defendant grew up in very unfortunate and difficult circumstances in that he grew up in a physical and psychological environment which significantly retarded the proper development of his character and functional abilities; (2) defendant's father was absent from the home since defendant was two or three years old; and (3) defendant's mother was in and out of the home and involved in an alcoholic and verbally and sometimes physically abusive relationship with Mr. Huntley, the victim here, which the defendant witnessed. Id. at 821, 824-25. On July 13, 2000, in his direct appeal, the
state supreme court affirmed Blakeney's convictions and death sentence. See id. at 826. Thereafter, on January 16, 2001, the
Supreme Court of the United States denied Blakeney's petition for a writ of certiorari. S. Ct. 868 (2001). B. Blakeney filed a motion for appropriate relief (the "MAR") in the state superior court (the "MAR court") on November 16, 6 See Blakeney v. North Carolina, 121
2001, and amended the MAR on February 5, 2003, raising a total of seven issues. By its Order of June 5, 2003, the MAR court,
in relevant part, deferred ruling on Blakeney's claims that his trial counsel had rendered ineffective assistance at sentencing (the "ineffective had assistance/sentencing withheld various claim") and that the (the
"original exculpatory evidence claim").
See State v. Blakeney,
No. 96 CRS 4774-4777 (N.C. Super. Ct. June 5, 2003) (the "First MAR Order"). 2 Also by the First MAR Order, the court rejected as
procedurally barred the claim that Blakeney, who is AfricanAmerican, had been unconstitutionally tried by an all-white jury (the "substantive jury composition claim"). In the meantime, on May 9, 2003, Blakeney had amended his MAR for a second time, raising the claim that his trial counsel had rendered ineffective assistance by failing to object to the racial composition of the jury (the "ineffective assistance/jury composition claim"). By its Order of November 12, 2003, the MAR
court rejected the ineffective assistance/jury composition claim as both procedurally barred and without substantive merit. See
The First MAR Order is found at J.A. 847-933. (Citations herein to "J.A. " refer to the contents of the Joint Appendix filed by the parties in this appeal.)
State v. Blakeney, No. 96 CRS 4774-4777 (N.C. Super. Ct. Nov. 12, 2003) (the "Second MAR Order"). 3 In January 2004, the MAR court conducted an evidentiary hearing (the "MAR hearing") on Blakeney's ineffective
assistance/sentencing claim, as well as his original exculpatory evidence claim. At that time, Blakeney filed a motion to
reconsider the MAR court's prior rulings on his substantive jury composition and ineffective assistance/jury composition claims, which the court denied from the bench. On April 30, 2004,
Blakeney amended his MAR for the last time to conform with the MAR hearing evidence, asserting that the prosecution had
withheld exculpatory evidence (the "exculpatory evidence claim") beyond that complained of in his original exculpatory evidence claim. 4 MAR By its Order and Memorandum Opinion of May 21, 2004, the rejected, inter alia, Blakeney's ineffective
assistance/sentencing and exculpatory evidence claims as lacking substantive merit and being, in part, procedurally barred. See
The Second MAR Order is found at J.A. 934-64.
Blakeney has since abandoned his original exculpatory evidence claim, but the claim asserted in the amended MAR of April 30, 2004, which we refer to as the "exculpatory evidence claim," is now before us.
State v. Blakeney, No. 96 CRS 4774-4777 (N.C. Super. Ct. May 21, 2004) (the "Third MAR Order"). 5 The state supreme court, by Order of December 2, 2004,
denied Blakeney's subsequent petition for a writ of certiorari. See State v. Blakeney, 607 S.E.2d 650 (N.C. 2004). C. On January 31, 2005, Blakeney filed a petition for federal habeas corpus relief, pursuant to 28 U.S.C. § 2254, in the
Western District of North Carolina. raised twenty-one issues,
In his petition, Blakeney his ineffective jury
composition, and ineffective assistance/jury composition claims. In response, the State filed an answer and a motion for summary judgment. Thereafter, Blakeney responded to the State's summary
judgment motion, and filed his own summary judgment motion, a motion for discovery, and a motion for an evidentiary hearing. After the parties submitted further the memoranda on the crossits
Order of May 3, 2007, denying Blakeney's habeas corpus petition, summary judgment motion, and motions for discovery and an
evidentiary hearing, and granting the State's summary judgment
The Third MAR Order is found at J.A. 2158-2300.
See Blakeney v. Lee, No. 3:05-cv-00010 (W.D.N.C. May 3,
2007) (the "Habeas Corpus Order"). 6 Blakeney timely filed a motion to alter or amend judgment and for relief from judgment under Federal Rules of Civil
Procedure 59(e) and 60(b), which the district court treated as a Rule 59(e) motion seeking to relitigate its and rejection of
evidence claims, and to challenge the denial of an evidentiary hearing on his substantive jury composition and ineffective
assistance/jury composition claims. 2007, the court concluded that,
By its Order of June 11, with and respect to Blakeney's evidence
ineffective claims, his
assistance/sentencing Rule 59(e) motion
successive application for federal habeas corpus relief under 28 U.S.C. § 2244(b). See Blakeney v. Lee, No. 3:05-cv-00010 In its
(W.D.N.C. June 11, 2007) (the "First Rule 59(e) Order"). 7
First Rule 59(e) Order, however, the court further observed that Blakeney had properly made in his Rule 59(e) motion the
contention that he was erroneously denied an evidentiary hearing on his substantive jury composition and ineffective
assistance/jury composition claims.
Accordingly, invoking this
The Habeas Corpus Order is found at J.A. 2954-3079. The First Rule 59(e) Order is found at J.A. 3096-98.
deleting the claims subject to the requirements of successive petitions or having his entire Rule 59(e) Motion treated as a successive application for habeas relief." First Rule 59(e)
Order 5-6 (citing United States v. Winestock, 340 F.3d 200 (4th Cir. 2003)). In accordance with the district court's instructions,
Blakeney promptly filed a motion to amend his Rule 59(e) motion, in which he opted to withdraw his contentions with respect to his ineffective assistance/sentencing and exculpatory evidence claims. By its Order of July 9, 2007, the court granted
Blakeney's motion to amend his Rule 59(e) motion, but rejected on the merits Blakeney's remaining contention that he had been erroneously jury denied an and evidentiary ineffective hearing on his substantive composition
See Blakeney v. Lee, No. 3:05-cv-00010 (W.D.N.C. July
9, 2007) (the "Second Rule 59(e) Order"). 8 On August 7, 2007, Blakeney timely noted this appeal. On
October 22, 2007, the district court granted a certificate of appealability (the "COA") on Blakeney's ineffective
On March 10, 2008, we expanded the
COA to include Blakeney's exculpatory evidence claim, as well as
The Second Rule 59(e) Order is found at J.A. 3104-06.
the contention that the district court should have granted him an evidentiary hearing We on his ineffective jurisdiction assistance/jury over Blakeney's
appeal pursuant to 28 U.S.C. §§ 1291 and 2253.
II. We review de novo a district court's denial of habeas
corpus relief on the basis of a state court record. v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003).
Insofar as the
MAR court adjudicated Blakeney's habeas corpus claims on the merits, its decision is entitled to deference pursuant to the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2254(d). analysis to assess AEDPA mandates the use of a two-step a habeas corpus petitioner is
entitled to relief.
Under the first step of the analysis, we
may award relief only if (1) the state court adjudication of the issue on its merits "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States"; or (2) the adjudication "resulted in a
decision that was based on an unreasonable determination of the
Blakeney has abandoned all contentions with respect to his substantive jury composition claim.
facts in light of the evidence presented in the State court proceeding." Id. And, even if error is identified, habeas
corpus relief can only be granted, under the second step of the AEDPA analysis, if the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht
v. Abrahmson, 507 U.S. 619, 637 (1993) (internal quotation marks omitted). The state court's factual determinations are presumed
to be correct and may be rebutted only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
We are barred from conducting habeas corpus review "of a state prisoner's claims that are procedurally defaulted under independent and adequate state procedural rules . . . unless the prisoner can show cause for the default and demonstrate actual prejudice as a result of the alleged violation of federal law, or prove that failure to consider the claims will result in a fundamental miscarriage of justice." F.3d 700, 714 "A (4th state Cir. rule 2008) is Lawrence v. Branker, 517 (internal adequate if quotation it is marks firmly
established, and regularly and consistently applied by the state court." Id. (internal quotation marks omitted). we review a district court's denial of an
evidentiary hearing for abuse of discretion. Polk, 438 F.3d 350, 367 (4th Cir. 2006).
See Robinson v.
III. On appeal, Blakeney's COA authorizes him to contend that the district court erred in three respects -- in denying him relief on his ineffective assistance/sentencing claim, in
denying him relief on his exculpatory evidence claim, and by rejecting his request for an evidentiary hearing on his
ineffective assistance/jury composition claim. contentions in turn. A.
We assess these
The ineffective assistance/sentencing claim essentially has two aspects: first, whether trial counsel rendered ineffective
assistance by failing to collect relevant records and provide them to Blakeney's expert psychologist for the sentencing
proceedings (the "expert witness aspect"); and second, whether counsel was ineffective in failing to conduct pretrial
interviews of, and then to call as character witnesses, several of Blakeney's family members and acquaintances (the "character witness aspect"). Blakeney contends that the MAR court's
adjudication on the merits of both aspects of his ineffective assistance/sentencing contrary Supreme to, Court or claim "resulted an 28 in a decision that was of,"
Court explained in Williams v. Taylor that,
[u]nder the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law . . . . Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. 529 U.S. 362, 412-13 (2000). Here, as recognized by the district court, the MAR court correctly including Washington, ineffective counsel's deficient identified the 466 the controlling seminal 668, claim was 687 Supreme in Court precedent, v. that "that the
(recognizing showing (1) "that See
Corpus Order 8.
Accordingly, the relevant issue is whether the
MAR court unreasonably applied that precedent to the facts of Blakeney's case -- that is, "whether the state court's
application of clearly established federal law was objectively unreasonable." beginning character with Williams, 529 U.S. at 409. the expert witness We assess such issue followed by the
assistance/sentencing claim. 1. a.
The MAR court concluded that the expert witness aspect of Blakeney's ineffective assistance/sentencing claim failed on
both the performance and the prejudice prongs of the Strickland test. See Third MAR Order 89. In adjudicating the expert
witness aspect, the MAR court provided an extensive discussion of the relevant evidence in the MAR hearing record, but largely abstained from explicitly resolving disputed issues of fact and making credibility determinations. The court observed, however,
that "the evidence before [it] shows that all of this claim is without merit." Id. The court also invoked various authorities
applying Strickland and its Supreme Court progeny to justify the rejection of Blakeney's "claim of prejudicial error." 33. Id. at
Although the precise reason for the court's decision is not
entirely clear, we must deem the decision to be reasonable if it "is at least minimally consistent with the facts and
circumstances of the case."
Wright v. Angelone, 151 F.3d 151,
157 (4th Cir. 1998) (internal quotation marks omitted). i. According to the MAR court, Blakeney's "experienced trial counsel" -- lead counsel Robert Huffman and co-counsel Harry
Crow, Jr. -- retained Dr. Mark Worthen, an expert in clinical and forensic psychology, to evaluate Blakeney for the sentencing Worthen
phase of the trial.
See Third MAR Order 10, 89, 91.
produced a seventeen-page Forensic Psychological Evaluation (the 16
"Expert Report"), dated August 28, 1997, which was incorporated by reference as part of the Third MAR Order. 10 The purpose of
Worthen's evaluation, according to the Expert Report, was "to describe time of Mr. the Blakeney's alleged history; psychological offenses; to list to any functioning provide a during social the and
diagnoses; and to comment on his propensity for violence within the correctional system." Report, Worthen relied Expert Report 1. on psychological For the Expert testing of and
interviews with Blakeney, discussions with some of Blakeney's family members, and certain records provided by trial counsel and obtained by Worthen himself. Expert Report 2. Trial counsel obtained school and prison records on See Third MAR Order 105-06;
Blakeney, and they provided those records to Dr. Worthen, along with police statements and reports about the Huntley murder. See Third MAR Order 89, 92. Carolina Department from of to The prison records, from the North related prior to Blakeney's with a
Correction, 1995 on
dangerous weapon offense.
See Expert Report 17.
advised Worthen that "`if you need anything else, please let me
The Expert Report is found at J.A. 2307-23.
See Third MAR Order 89 (quoting J.A. 1182). 11 did not follow up with any requests for
information, Huffman presumed that Worthen was satisfied with what had been provided. See id.
Dr. Worthen obtained records, on his own initiative, from the Union County Mental Health Center upon learning from
Blakeney that he had also been seen there. 92.
See Third MAR Order
According to the Expert Report, those records reflected
that Blakeney had sought treatment for substance abuse from the Union County Mental Health Center in September 1995, after being released from prison. reflect that, and at he See Expert Report 6. time, Blakeney with The records also was "anxious on and and
withdrawal from cocaine and alcohol.
Id. at 6-7.
Dr. Worthen was unable to obtain records from the North Carolina reported Department participation of in Correction a drug relating alcohol to Blakeney's
treatment ("DART") program, despite requesting them in two or three letters and, perhaps, a phone call. 93. See Third MAR Order
Trial counsel also made unsuccessful attempts to obtain the See id. The Expert Report reflects that "Mr.
Where the MAR court quoted from transcripts of the MAR hearing, we provide J.A. citations for those portions of the transcripts.
through the Department of Correction when he was incarcerated between 1990 and 1995"; that Worthen, "[u]nfortunately, . . . was not able to obtain records regarding" any such treatment; and that Worthen was "not sure if this indicates that Mr.
Blakeney actually never participated in DART or if the records simply could not be located." court later recognized, there Expert Report 6. were Department of As the MAR Correction
records that, if produced, would have confirmed to Worthen that Blakeney received "130 hours of instruction" in the DART program prior to the Huntley murder. 1831 (Department that of Third MAR Order 94; see also J.A. letter of March DART 28, 1994, at
Craggy Correctional Center). During the trial preparations, "Dr. Worthen met [lawyer] Crow in person twice, once when they met at Crow's office and he interviewed two or three of defendant's family members, and once with Huffman and Crow immediately before the sentencing phase of defendant's trial." Third MAR Order 91. The Expert Report
reflects that Worthen met with Blakeney five times, conducted a series of psychological tests on him, and interviewed three of his family members: wife Tiney Blakeney, mother Gracie
Blakeney, and sister Peggy Blakeney.
See Expert Report 2.
Extensive details of Blakeney's childhood, education, and family life are provided in the Expert Report, which reflects, inter alia, that Blakeney, the youngest of nine children, was abandoned by his father as a toddler and spent his childhood living in "embarrassing" and "terrible" conditions in houses
with no running water or electricity, filled with rats, snakes, and roaches. See Expert Report 3. Blakeney was intermittently
cared for by his older siblings and by his mother Gracie, who was in and out of the home, being absent more often after she began dating Huntley when Blakeney was nine or ten years old. See id. frequently neglecting Blakeney's withdrew Gracie Blakeney and Huntley both drank heavily and fought, the and Gracie and "would alternate [defendant]." average," Id. at and 5. between Id. he He
indulging was ninth
performance in the
thereafter attempted to return to high school three different times, but "he had to find work in order to survive," making "it difficult attempts." women, for Id. him to stay in school despite his several
Blakeney had six children with five different two children with Tiney Blakeney, whom he
married in February 1996.
See id. at 5-6.
Tiney Blakeney told
Dr. Worthen "that her husband has had problems with alcohol and other drugs, but she characterized him as a good father who is able to relate to and discipline the children better than she." 20
Id. at 6.
Tiney Blakeney also "indicated that she and Mr.
Blakeney had arguments about finances and the fact that he was spending some of their money on alcohol and other drugs rather than the family, but she had not contemplated a separation or divorce." The Id. Expert Report contains a narrative of Blakeney's
description to Dr. Worthen of the events surrounding the Huntley murder, including Blakeney's reports of having not slept "for most of the previous three or four days and nights prior to the alleged offense" and of having consumed alcohol and smoked Expert
marijuana and crack cocaine during that time period. Report 7.
Nevertheless, according to the Expert Report, "Mr.
Blakeney stated that at the time of the alleged offense he was not intoxicated and he was not feeling particularly bad." Id.
The Expert Report also observes that Blakeney gave a written statement to police the day after the Huntley murder that did not include information about his conduct over the days prior to the murder (including his sleeplessness and substance abuse). See id. at 9. Blakeney's With respect to details of the murder itself, of events to Dr. Worthen "varie[d]
somewhat from that given to law enforcement officers in [the] written statement," and Worthen assumed that the statement to police, being closer in time to the murder, was "more accurate." Id. 21
During a screening test for alcoholism, the Expert Report reflects, Dr. Worthen "suspect[ed] that Mr. Blakeney tended to minimize problems associated with alcohol use when answering the . . . questions." Expert Report 10. Similarly,
Mr. Blakeney also minimized the extent of his drug (including alcohol) use and related problems on . . . a substance abuse evaluation instrument. After talking with Mr. Blakeney's attorney, it became apparent that Mr. Blakeney was afraid that if he acknowledged his drug use it would somehow hurt his case. After his attorney advised him that it was crucial to be open and honest . . . , Mr. Blakeney acknowledged that he has had a long term problem with crack cocaine and that he has been a regular user of alcohol and marijuana. Id. On one psychological test, "Mr. Blakeney likely answered to some test items indicative of more severe
psychopathology than he actually exhibits, either in an attempt to look more disturbed or as a `cry for help.'" The Expert Report includes a diagnosis Id. at 11. of "Personality
Disorder, Not Otherwise Specified (Mixed Personality Disorder) with avoidant, dependent, anti-social, and narcissistic traits," as well as cocaine, marijuana, and alcohol dependence. Report 14. symptoms of Expert
It also observes that "Mr. Blakeney endorsed some dependent, avoidant, and anti-social personality
disorder during [the] interview procedure," and that his sister Peggy Blakeney "indicated that she has observed her brother to exhibit dependent signs of anti-social, disorder." 22 narcissistic, Id. at avoidant, The and
relevant" in that "[t]he violence that occurred would not have taken place had Mr. Blakeney not chosen to seek out more money for more drugs," and "[i]t is also likely that Mr. Blakeney's rational judgment was impaired, at least slightly, by the
chronic use of alcohol and other drugs and the fact that he had reportedly been awake for most of the previous three days and nights." Id. at 16. According to the Expert Report, "Mr.
Blakeney presumably did not plan well in advance to kill Mr. Huntley . . . but when confronted by Mr. Huntley, he reacted. It was at this time that the poor judgment caused by chronic drug abuse, and alleged lack of sleep, was a factor." Expert Report acknowledges, however, that there was no evidence that Mr. Blakeney was experiencing more severe effects of alcohol and other drug abuse such as delusions, hallucinations, or perceptual disturbances, acute physical withdrawal, or memory blackout at the time of the alleged offenses. Thus, while Mr. Blakeney's ability to adequately consider the consequences of his actions was impaired to some extent, he was not so impaired that he lost significant awareness of his circumstances nor did he significantly lose his ability to control his behavior. Id. With respect to the diagnosis of personality disorder, the Id. The
Expert Report opines that such disorder rendered Blakeney "more vulnerable to the temporary stress-reducing properties of drugs and consequently, drug addictions," and that it "also adversely affected [Blakeney's] ability 23 to adequately consider the
consequences of his actions on others, due to his narcissism and anti-social attitudes." Id. at 16-17. Finally, the Expert
Report reflects Dr. Worthen's opinion -- based on Blakeney's lack of "a past history of violence in the [prison] setting" or
"psychopathic personality" -- that Blakeney "poses no greater risk for violence than the average prisoner" and does not
"pose an imminent threat to other inmates."
Id. at 17.
In his trial testimony, Dr. Worthen "repeated much of the information stated in [the Expert Report]." Third MAR Order 91.
According to lawyer Crow, he "`thought Dr. Worthen's testimony in court went over fairly well. We basically had him go over
the report that he provided in front of the jury and he did a good job of presenting that information. . . . [H]e did not
give the impression that he had not been adequately prepared.'" Id. at 89 (quoting J.A. 1159-60). 12 Thereafter, at the MAR hearing, Blakeney's post-conviction counsel presented records not obtained by trial counsel nor
provided to Dr. Worthen prior to trial, including the following: Blakeney's Department DART of and other records state from the of North Social Carolina Services
records concerning Blakeney's wife, Tiney Blakeney; employment
Our review of Dr. Worthen's trial testimony confirms that it closely covered the contents of the Expert Report.
records for Blakeney; and records concerning victim Huntley's prior conviction for driving under the influence of alcohol
See Third MAR Order 90. the MAR hearing that all
Lawyer Huffman acknowledged of these records, except
Huntley's DUI records, "were the types of records he would have provided Dr. Worthen Id. prior to defendant's trial if he had
For his part, Worthen testified at the
MAR hearing that he did not consider it his responsibility to locate witnesses there or are to actively collect when that records, he an might but send he a
instances the theory
respond better to a letter from a doctor than an attorney. id. at 91-92. in general,
In Blakeney's case, Dr. Worthen understood that, trial counsel would locate witnesses and obtain
records, although Worthen volunteered to try to obtain records from the North Carolina Department of Correction and from the Union County Mental Health Center. See id. at 92.
Dr. Worthen further testified at the MAR hearing that he had reconsidered his prior diagnosis of Blakeney based on new information, including the records obtained by Blakeney's postconviction counsel, which they provided to Worthen after the trial. See Third MAR Order 92. "Specifically, Dr. Worthen
`I would now diagnose the defendant with depressive It was not a diagnosis I
disorder not otherwise specified. 25
personality disorder, which I did at the time.'" J.A. 1245). `render an
Additionally, Worthen testified that he "would now opinion . . . [t]hat [defendant] was under the
influence of a mental or emotional disturbance at the time of the crime.'" Id. (quoting J.A. 1245-46) (alterations in
When asked whether "`the capacity of the defendant
to appreciate the criminality of his conduct or to conform his conduct with the requirements of law was impaired,'" Worthen stated "his opinion that defendant `was impaired at the time of the crime.'" Dr. Id. at 92-93 (quoting J.A. 1246). 13 attributed the change in diagnosis to the
following (collectively, the "post-conviction information"): His post-trial review of community member affidavits and interviews with family members (including a re-interview of sister Peggy Blakeney and interviews of four other siblings), which indicated "that defendant `experienc[ed] symptoms of depression prior to the crime,'" Third MAR Order 93 (quoting J.A. 1248), and "`exhibited positive character traits which . . . would argue against the personality disorder diagnosis,'" id. at 96 (quoting J.A. 1267);
Blakeney contends that Dr. Worthen's revised opinion would have supported two statutory mitigating circumstances at sentencing: (1) that "[t]he capital felony was committed while the defendant was under the influence of mental or emotional disturbance," and (2) that "[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired." N.C. Gen. Stat. § 15A-2000(f)(2), (6).
Records from the North Carolina Department of Correction, including what Worthen referred to as "a previous diagnosis of depression" made while Blakeney was incarcerated before the Huntley murder, id. at 93; The DART records reflecting Blakeney's 130 hours of instruction during his prior incarceration, see id. at 93-94; 14 Additional Department of Correction records, which constituted "`more substantive evidence . . . that [Blakeney] did not exhibit behavior problems [while incarcerated], including signs of anti-social personality disorder,'" id. at 94 (quoting J.A. 1253); North Carolina Division of Social Services records concerning problems in Tiney Blakeney's home (including Tiney's own alcohol abuse), which records: "`provide[d] information regarding the level of [depression-inducing] stress that the defendant was under at the time leading up to the crime'"; "`corroborate[d] information from [Blakeney's] family . . . that they were having trouble in the home'"; and provided Worthen "`a better understanding of [Blakeney's] psychological condition at the time, and helped [him] to put together how [Blakeney's] substance abuse and the depression were interacting to cause a deterioration in his functioning,'" id. at 94 (quoting J.A. 1254-55); and Blakeney's employment records, providing "`further evidence that although his employment history was certainly not perfect, he had sought and obtained employment after his previous
Dr. Worthen testified that the DART records "to some extent go to the question of whether or not [Blakeney] had a personality disorder, how truthful he was being," and that such records also "demonstrated that he at least had some motivation to try to overcome his alcohol and other drug problems." J.A. 1251.
incarceration'" -- a fact that "`goes against the . . . impression [Worthen] had at the time [of trial] that [Blakeney] was exhibiting some narcissistic and anti-social personality traits,'" id. at 95 (quoting J.A. 1257). Worthen testified that, if he had been provided the post-
conviction information prior to trial, he "`would not have come to that conclusion [i.e., the personality disorder diagnosis], because there's information that would argue against the
diagnosis of a personality disorder.'"
Id. (quoting J.A. 1259).
Worthen explained, inter alia, that he now saw Blakeney's drug use "`as being signs and symptoms of substance dependence itself and the depressant disorder, and as a reaction to the stress he was under, as opposed to being symptomatic of a personality
Id. (quoting J.A. 1259). 15
Nevertheless, in testifying at the MAR hearing to his new diagnosis,
According to Worthen, the newly obtained records were also relevant to him in the following ways: the additional Department of Correction Records reflecting Blakeney's lack of behavior problems while incarcerated corroborated Worthen's 1997 trial testimony regarding his opinion about Blakeney's future adjustment in prison, see Third MAR Order 94; the employment records demonstrated that Blakeney "passed certain urinalysis testing at work, which tends to show that `there were some periods of time where he was not using . . . drugs,'" id. at 9596 (quoting J.A. 1260); and Huntley's DUI records corroborated what Blakeney and his sister Peggy told Worthen about their childhood environment, i.e., "`that their stepfather was drinking a lot, had an alcohol problem, and that this cause was a source of stress within the home,'" id. at 96 (quoting J.A. 1261).
defendant prior to trial, defendant `did not report that he was experiencing depressive symptoms at . . . the time of the
evaluation, and it was not clear to [Dr. Worthen] whether he was experiencing depressive symptoms at the time of the crime.'" Third MAR Order And 93 (quoting Worthen J.A. had 1249) (alterations at trial in that
Blakeney, during a pretrial evaluation, "`denied any suicidal thoughts or plans other than very fleeting suicidal thoughts, which he said he would not carry out. depression.'" to explain He denied any symptoms of "When asked symptoms of
Id. at 106 (quoting J.A. 87, 1304). the meaning of `he denied any
depression,' Dr. Worthen replied, `I asked him . . . if he experienced certain symptoms of depression and he said no.'" Id. (quoting J.A. 1304-05). Moreover, Worthen on cross-examination from his at the MAR of hearing, "a Dr.
diagnosis of depression" in Blakeney's North Carolina Department of Correction records, see Third MAR Order 93, explaining that he merely assumed the relevant document -- a "`summary report'" reflecting psychologist that Blakeney of had been referred of to a staff --
further indicated that there was an "`official diagnosis'" of depression. Id. at 101 (quoting J.A. 1285). Worthen also
agreed that it is "`common for someone going into a period of 29
long term confinement to have situational depression,'" and that "`[m]ight . . . have been what [the Department of Correction] document referred to.'" Id. at 102 (quoting J.A. 1285-86).
Additionally, it was established on cross-examination that the Union County Mental Health with Center report on of and September withdrawal 1995, from
cocaine and alcohol, was "`basically square with the diagnosis that [Dr. Worthen] testified to at trial in this case,'" except that Worthen also diagnosed marijuana dependence and did not include "`the withdrawal diagnoses . . . because [he] couldn't determine whether or not [Blakeney] was in a state of withdrawal at that time.'" Id. at 103 (quoting J.A. 1291) (some
alterations in original). To corroborate Dr. Worthen's new diagnosis, Dr. James E. Bellard, an expert in the field of forensic psychiatry, also testified at the MAR hearing. performed evaluation a post-conviction involved See Third MAR Order 111. evaluation with of Bellard an
occasions and spend[ing] about six hours with him," as well as "review[ing] conviction many documents Id. 16 provided "Dr. by defendant's postof
Dr. Bellard also interviewed defendant's sister, Peggy Blakeney. See J.A. 1426.
defendant's mental status at the time of the crime `was that of . . . major depression of moderate [to] severe severity[,] Bellard
without psychotic features.'"
Id. (quoting J.A. 1428).
opined that, "at the time of the crime, defendant was under the influence of severe mental or emotional disturbances." 112. More specifically, Bellard described his Id. at that
Blakeney "`was suffering from a major depression, which he had been suffering from for the at least two of months, and . . on . at he was
cocaine and alcohol and probably marijuana.
And at the time of
the crime was also under the influence of cocaine, marijuana, and alcohol.'" opined that Id. (quoting J.A. 1437-38). "`capacity . . . to Bellard further appreciate the
criminality of his conduct or to conform his conduct to the requirements of law' was impaired." (alteration in original). Id. (quoting J.A. 1438)
On this point, Bellard explained that
"`with that combination of chemicals in the system, combined with the depression, I believe [Blakeney's] ability to make
reasonable decisions and weigh options was impaired.
in general you can support and corroborate Dr. Worthen's revised opinion as to depression and the presence of these mental health impairments.'" Id. at 113 (quoting J.A. 1438). 17
Although, in evaluating Blakeney, Dr. Bellard reviewed (Continued) 31
The MAR court noted Dr. Bellard's MAR hearing testimony about factors in Blakeney's life history significant to his
overall mental status, including the following: that defendant "shows a family history [for] alcoholism"; that defendant's parents "split up by age two and [defendant] didn't ever have a relationship with his father past that point"; that "no specific person . . . took a specific interest in [Blakeney]"; that things at defendant's home were "pretty chaotic"; that defendant "didn't do well in school"; that defendant "was promoted socially several times and left school in the ninth grade"; [and] that defendant had "a brother who died in the mid-eighties that was very close to him." Third MAR Order 113 (quoting J.A. 1439-44) (some alterations in original). On cross-examination, Bellard agreed that there was
no indication that Blakeney had been diagnosed with depression prior to the Huntley murder, including during his 1990-1995
various documents, including those included in the postconviction information, his MAR hearing testimony reflects that the major depression diagnosis was largely based on his interviews with Blakeney and his sister Peggy. Specifically, Dr. Bellard testified that Blakeney and Peggy were "able to describe [seven symptoms of depression] for a period of at least two months before [the Huntley murder]." J.A. 1431. According to Bellard, "[i]t's possible but speculative that [Blakeney] had When asked how he clinical signs for long before that." Id. "would . . . rate Roger Blakeney's depression at the time of the incident," Bellard responded that, "based on [Blakeney's] report and his sister's report, I would rate him as moderate to severe." Id. at 1433. Bellard also noted that there "is a minor distinction" between his diagnosis of major depression and Dr. Worthen's diagnosis of depressive disorder, but that both of the diagnoses were of "active disorders about depression." Id. at 1448.
incarceration in North Carolina and his September 1995 visit to the Union County Mental Health Center. See id. at 114, 116.
Bellard also acknowledged that Blakeney had "`some things that would satisfy some but also that he of the criteria that of . . . for personality majority of
disorders,'" individuals'" criteria,
disorder has a
Id. at 116 (quoting J.A. 1461).
Finally, the MAR court accepted Dr. Pamela Laughon as an expert in the field of psychology on behalf of Blakeney. Third MAR Order 118. See
"She opined that it is `customary' for
trial attorneys to collect information, such as documents and records, client." and provide them to any psychologist evaluating a
Id. (quoting J.A. 1691). ii.
In ruling against Blakeney on the expert witness aspect of his ineffective assistance/sentencing claim, the MAR court
invoked our decision in Byram v. Ozmint, 339 F.3d 203 (4th Cir. 2003), among various other authorities applying Strickland and its Supreme Court progeny. See Third MAR Order 34
(characterizing Byram as "a case having similarities to the case at bar"). performance performance We recognized in Byram that, to satisfy Strickland's prong, was "the defendant by 33 `must show that counsel's that
`counsel's representation fell below an objective standard of reasonableness.'" at 687, 688). 339 F.3d at 209 (quoting Strickland, 466 U.S.
More specifically, we observed that
[a] failure to obtain available records . . . does not show that counsel's investigation was inadequate. Attorneys will not be found ineffective unless they fail to make a reasonable investigation for possible mitigating evidence. And the reasonableness of an investigation, or a decision by counsel that forecloses the need for an investigation, must be considered in light of the scarcity of counsel's time and resources in preparing for a sentencing hearing and the reality that counsel must concentrate his efforts on the strongest arguments in favor of mitigation. Id. at 210 (internal citations and quotation marks omitted). We
further observed in Byram, on the prejudice prong of Strickland, that "[a] showing of prejudice requires the defendant to prove that `counsel's errors were so serious as to deprive the
defendant of a fair trial.'" 466 U.S. at 687).
Id. at 209 (quoting Strickland,
And we explained that, "[i]n the context of a
capital sentencing proceeding, the question is whether `but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting, inter alia,
Strickland, 466 U.S. at 694). Finally, we concluded that where, "[i]n light [at of the wealth of information presented by trial in
unobtained records] would have added little[,] [t]here was no `reasonable probability' that the outcome would have been
different had trial counsel conducted an even more exhaustive investigation." Applying Byram's claim at Id. at 211. these that principles his trial by the in Byram, counsel deciding ground that we first rejected deficient present made a
rendered not to
reasonable strategic decision in recognition of the potential harm posed by such evidence. See 339 F.3d at 210. Notably, we
also recognized that trial counsel was not obligated "to `shop around' for a favorable expert opinion after Id. an evaluation
yield[ed] little in mitigating evidence."
rejected trial counsel's failure to obtain certain records as a basis for the ineffective assistance claim, under Strickland's performance and prejudice prongs, on the grounds that reasonable efforts event, were they made to obtain have those records to and that, in any of
information presented by trial counsel" in support of Byram's mitigation case. Id. at 210-11. b. For Blakeney to prevail in these habeas corpus proceedings on the expert witness aspect of his ineffective
assistance/sentencing claim, we would have to conclude that the MAR court unreasonably applied Supreme Court precedent in
rejecting such claim under both the performance and prejudice 35
prongs of Strickland.
Blakeney contends that he is entitled to
relief on the premise that Dr. Worthen's initial personality disorder diagnosis -- the diagnosis to which Worthen testified during the trial's sentencing phase -- was the result of trial counsel's failure to obtain and provide the and the post-conviction disorder the
information. diagnosis "was
personality did not
submission of any statutory mental health mitigators." Appellant 24 (emphasis omitted).
And, Blakeney maintains that,
[i]f Dr. Worthen had been provided access to the [post-conviction information], he would have abandoned the damaging diagnosis of [personality disorder], and recognized that Blakeney was suffering from depression. There is at least a reasonable probability that had the jury understood that defendant was suffering from a depressive disorder and resulting substance abuse, as opposed to an antisocial personality disorder, at least one juror would have reached a different conclusion. Id. at 28-29. Unfortunately for Blakeney, though we are willing
to assume that he has satisfied Strickland's performance prong, we cannot rule in his favor on the prejudice prong. Specifically, even accepting that the MAR court found Dr. Worthen's post-conviction diagnosis of depressive disorder to be credible -- a dubious notion in light of the evidence highlighted in the Third had MAR Order, including endorsed Worthen's symptoms testimony of that
disorder and denied symptoms of depression -- the court could yet 36
depended on the post-conviction information.
As the district
court observed in its Habeas Corpus Order, "[a]ssuming arguendo that the post-conviction diagnosis is the more accurate one, Dr. Worthen did not need counsel's help to diagnose Blakeney with a depressive disorder." Habeas Corpus Order 10. This is evident
from the MAR hearing testimony of Dr. Bellard, corroborating Worthen's post-conviction diagnosis, in that Bellard relied for his major depression diagnosis on sources of information that were available to Worthen when he made his initial diagnosis of personality disorder. See id. at 12. Specifically,
[l]ike Dr. Worthen's [initial diagnosis], Dr. Bellard's diagnosis was based upon his interview/evaluations with Blakeney and his interview with [Blakeney's sister] Peggy. According to Dr. Bellard, Blakeney reported experiencing seven identifiable symptoms of the illness of depression at the time of the [Huntley] murder. Significantly, Blakeney and Peggy were able to describe those symptoms as having existed for at least two months prior to the murder. Id. at 11; see also supra note 17. Blakeney's life history noted by Moreover, those factors of the MAR court as being
significant to Bellard in assessing Blakeney's overall mental status -- his family history of alcoholism, the absence of his father or another adult role model, the chaotic nature of his home life, his lack of success in school, and the loss of his brother -- were largely known to Worthen prior to trial and
circumstances, the [post-
conviction information] that made his diagnosis of depressive disorder possible is unconvincing." Accordingly, we agree with Habeas Corpus Order 12. the district court that,
"[w]hatever the reason for Dr. Worthen's original diagnosis, the record indicates that he had the necessary resources to make a diagnosis of depressive disorder prior to trial. prejudice arising to of v. from trial counsel Polk, any the original and As such, any is not an 14
attributable ineffectiveness (citing McHone
counsel claim." F.3d
Habeas 691, 706
failure to utilize readily available evidence is attributable to expert rather than to counsel and, thus, cannot support
Strickland claim)); see also Byram, 339 F.3d at 211 (recognizing lack of prejudice resulting from counsel's failure to obtain records, where additional information in those records "would have added little"). 18 We thus affirm the district court's
To the extent that Blakeney contends that he was prejudiced by his trial counsel's failure to obtain the DART records, because the prosecution used the absence of such records to paint Blakeney as a liar, we agree with the district court's rejection of such contention: (Continued) 38
denial of habeas corpus relief on the expert witness aspect of the ineffective assistance/sentencing claim. 2. a. The MAR court also concluded that the character witness aspect of Blakeney's ineffective assistance/sentencing claim
failed on both the performance and the prejudice prongs of the
Ultimately, [Blakeney] cannot show that he was prejudiced by counsel's failure to obtain the DART records. The absence of DART records was only one example of several cited by the prosecutor as evidence that Blakeney was untruthful and that Dr. Worthen did not believe what Blakeney had told him. The prosecutor argued, without objection, that Dr. Worthen did not believe what Blakeney had told him about the arson and murder and that he did not believe the answers that Blakeney had given to some of the questions on the psychological tests. Indeed, Dr. Worthen testified at sentencing that the story Blakeney had told the police was likely more accurate than the very different story that Blakeney had told him about the crimes. He also testified that on the questionnaires he administered, Blakeney minimized his substance abuse problems, and that he (Dr. Worthen) had to adjust for that in making his diagnosis. Dr. Worthen testified that he likewise had to adjust for the fact that Blakeney exaggerated some symptoms of psychological problems on at least one of the tests that he took. The jury, therefore, had ample evidence to conclude that Dr. Worthen doubted Blakeney's veracity. As such, there is no reasonable probability that the jury would have returned a life sentence had the prosecutor not been able to argue that the absence of the DART records was evidence that Blakeney was not truthful. Habeas Corpus Order 16-17.
Strickland test. court, well "[t]rial within
See Third MAR Order 54. counsel's pretrial
According to the MAR efforts were
investigative range the first of
reasonable of the
Strickland test and not the source of prejudice that is the second prong of the Strickland test." 466 U.S. at 689). Id. (quoting Strickland,
Importantly, the court supported its ruling
with explicit findings of fact and legal analysis. i. The MAR court found that "[o]ne of trial counsel's most significant pretrial investigative efforts involved [lawyer]
Crow's discussions with defendant," which provided counsel with, inter alia, "information about defendant's defendant's "information on" the background prior about of and
family," conviction presence murder.
"information and his
about and house
Third MAR Order 54.
"While preparing for trial, Crow
asked defendant about people who were not his family members to whom trial counsel might talk about testifying as character
Id. at 59.
Blakeney suggested Jerry Leak, his
former supervisor at the City of Monroe Sanitation Department, and Crow then spoke with Leak but did not call him as a witness. See id. at 59, 60. Blakeney "also told Crow that there were
people working at the jail who could testify about how he had 40
gotten along while incarcerated and awaiting trial."
Id. at 59.
"Crow questioned Officer Tim Phillips and Deputy Sheriff Andrew Simmerson, obtained a basic good report from them concerning defendant's conduct in jail, and thereafter called Phillips and Simmerson to testify at trial that defendant had been a good inmate." As Id. for family members, Peggy Crow "was whom well Crow acquainted "had with"
represented" and known "for about three or four years before he represented conducted defendant." Third MAR with Order 60. Counsel mother, also
Blakeney's See id.
Blakeney, and wife, Tiney Blakeney.
Peggy, Gracie, and
Tiney Blakeney are apparently the family members referred to in the MAR court's finding that Crow "talked to some of defendant's family members and sized them up to determine whether he thought they would make good witnesses for the defense." Id. at 63.
Counsel ultimately decided, with respect to Peggy, Gracie, and Tiney, to call only Peggy as a witness. being a witness can be difficult," but that "Crow knew that Peggy "had the
composure to be a witness."
Third MAR Order 63.
Crow "ruled out" calling Gracie and "did not feel that Tiney . . . would be a good witness." Tiney, Id. With specific regard to
Crow decided not to call [her] as a witness at trial because he thought she might present some testimonial evidence that could hurt defendant's case. More precisely, Crow thought that evidence from [Tiney] concerning defendant's use of alcohol and drug abuse would be the proverbial two-edged sword that cuts both ways and would hurt defendant in the eyes of the jury. Id. at 61. background Counsel decided to present evidence on Blakeney's through the defense's expert psychologist, Dr.
Worthen, rather than family members (other than Peggy), because, as Crow explained, "`I just felt like we could get all we needed in through Dr. Worthen without putting on people as witnesses who might not be able to express themselves as well as Dr. Worthen.'" Id. at 63-64 (quoting J.A. 1118). Crow added that
"`I liked the Blakeney family, but it helps to have somebody who's experienced and has some composure to testify.'" 64 (quoting J.A. 1118). During the trial's sentencing phase, counsel called a total of four witnesses: Phillips and Dr. Worthen, Peggy See Blakeney, Third MAR and Order jail 60. Id. at
Counsel also "encouraged family members to attend defendant's trial to show support for defendant." trial, present counsel for the spoke trial with and several could Id. at 60-61. family have members During the "who were their
knowledge of defendant."
Id. at 61.
"[C]ounsel made a tactical
decision," however, "not to call as witnesses any of defendant's
family and friends other than those witnesses who were called to testify." Id. Crow believed
"that we could bring out what we needed to bring out about [Blakeney's] family background, through the information that Dr. Worthen got, and it was going to be presented by an experienced witness, and I thought that would come over a lot better than by presenting the individual family members who [we were not] real sure could handle testifying." Id. (quoting J.A. 1127) (second alteration in original). Crow
also explained that one of the reasons he decided not to call the additional family members "`was the fact that I really had no prior contact with [them],'" explaining that "`[i]t's hard to make a [really] good decision about something like that, with such short contact. was going to do. I already had pretty well in my mind what I
That would require a change of strategy that I Id. at 64 (quoting J.A. 1164)
didn't feel comfortable with.'" (third alteration in original). During allegation the that MAR hearing, counsel
below the requirements of Strickland by failing to adequately interview defendant's family members and other character
witnesses," Crow responded as follows: "Hindsight is twenty, twenty. I interviewed and talked to the people that [they, the family members] made . . . available to us, and that I ultimately felt comfortable with. I guess the bottom line, I talked to those people that came forward and I urged them -- and I would have talked to anybody else, any other family member that had -- had they brought along with 43
them. It's their family. I felt that they were the ones who could involve the other family members better than anybody else. That's all I know to answer." Third MAR Order 63 (quoting J.A. 1158-59) (alterations in
According to the MAR court,
Crow thought that defendant's family members were "all good people," but he also knew that none of them were "what you might call leading citizens [in] the community." None of defendant's family members held public office; none were members of any profession (e.g., ministers, lawyers, doctors, bankers). Thus, Crow did not call as witnesses at trial all of defendant's brothers and sisters. Id. at 64 (quoting J.A. 1118). 20
Crow similarly testified at t
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