John Burr v. Kenneth Lassiter

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:01-cv-00393-WO-JEP Copies to all parties and the district court/agency. [999060411].. [12-4]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4

JOHN EDWARD BURR,
Petitioner - Appellee,
v.
KENNETH E. LASSITER, Warden, Central Prison, Raleigh, North
Carolina,
Respondent - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., District Judge. (1:01-cv-00393-WO-JEP)

Argued:

December 4, 2012

Decided:

March 11, 2013

Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.

Reversed by unpublished per curiam opinion.

ARGUED: Leonard Michael Dodd, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellant.
James P.
Cooney, III, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Charlotte,
North Carolina, for Appellee.
ON BRIEF: Roy Cooper, Attorney
General of North Carolina, Raleigh, North Carolina, for
Appellant.
Ernest Lee Conner, Jr., Greenville, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
John Edward Burr (“Burr”) was convicted by a North Carolina
jury of the first-degree murder and felony child abuse of fourmonth-old Tarissa Sue (“Susie”) O’Daniel, and of assault on a
female, and sentenced to death plus thirty days imprisonment.
The North Carolina Supreme Court affirmed.
461 S.E.2d 602 (N.C. 1995).

See State v. Burr,

After unsuccessfully seeking state

post-conviction relief, Burr petitioned for habeas relief under
28 U.S.C. § 2254, alleging that his trial attorneys rendered
ineffective

assistance

of

counsel

under

Strickland

v.

Washington, 466 U.S. 668 (1984), because they failed to develop
and present evidence that Susie died from accidental injuries
she sustained when her 8-year-old brother tripped and fell while
carrying her.

The district court granted relief.

Because the

district court’s decision granting Burr relief is contrary to
the

deference

that

federal

courts

must

afford

state

court

decisions adjudicating the merits of such constitutional claims,
we reverse.
I.
A.
On August 25, 1991, at 2:55 a.m., Susie was admitted to the
Alamance County Hospital in North Carolina with a closed head
injury,

fractures

widespread

bruises

of

both

to

her

thighs
head,
2

and

face,

both

upper

arms,

and

neck,

arms,

legs,

and

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torso.
North

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Shortly thereafter she was transferred by ambulance to
Carolina

Memorial

Hospital

in

Chapel

Hill.

Her

head

injury proved fatal, and she was pronounced dead on August 27,
1991, at approximately 6:30 p.m.
The state’s evidence regarding the events leading up to
Susie’s

hospitalization,

mother,

Lisa

Bridges,

including

was

the

summarized

testimony
by

the

of

North

Susie’s
Carolina

Supreme Court as follows:
[Susie] was born on 1 April 1991 to Lisa Porter
Bridges and Bridges’ husband at that time, John Wesley
O’Daniel.
When Susie was a few weeks old, Bridges
began having sexual relations with defendant, who was
separated from his wife at the time.
When Susie was
six weeks old, John O’Daniel discovered his wife was
having an affair with defendant and told Bridges that
he wanted a divorce.
Subsequently, in June 1991, Bridges and her four
children moved into a trailer located next to a
trailer owned by Bridges’ brother, Donald Wade.
Near
the end of June, defendant moved into the trailer with
Bridges and her four children. Bridges testified that
when defendant first moved in with her, “[h]e seemed
like a pretty good person,” but that after a few
weeks, he became physically abusive toward her,
bending
her
hands
back
in
a
painful
manner,
threatening her with a gun, bruising her body, and
choking her. Bridges testified that she remained with
defendant after this abuse because she “was scared of
him.”
On 24 August 1991, defendant and Bridges argued
most of the day over defendant spending the previous
night at his wife’s house and his refusing to take
Bridges to her parents’ house.
At approximately 6:00
p.m., Bridges’ son Scott tripped over a cord while he
was carrying Susie.
Bridges testified, however, that
she examined Susie after the fall and did not find any
marks on her body except for some redness on her arm,
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which disappeared.
Bridges further testified that
later that evening, while she was sitting on the
trailer steps with Susie and defendant was mowing the
yard, defendant hit Bridges in her lower back with his
fist.
After defendant hit her, Bridges went over to her
brother’s trailer, where defendant eventually joined
her.
Defendant and Bridges began arguing again, and
Bridges left the trailer with the infant child.
Bridges testified that defendant followed her and
shoved her in the back while she was holding the
child. Bridges also told defendant that he was going
to make her hurt the child, but Bridges testified that
“he just kept running his mouth” and followed her
inside her trailer, still arguing.
Once inside the trailer, Bridges placed Susie in
her infant swing located in the living room. Bridges
testified that while she was still holding onto the
swing, defendant pushed her down onto the couch,
almost causing her to knock over the swing.
When
Bridges attempted to get up from the couch, defendant
pushed her down again and told her not to leave the
couch.
Bridges sat on the couch a few minutes and
then stood up and walked down the hallway into her
bedroom.
Bridges testified that defendant followed
her to the bedroom and pushed her onto the waterbed,
causing the waterbed to break. Bridges testified that
after the waterbed broke, defendant “started talking
like everything was fine.” Bridges and defendant then
began repairing the waterbed.
Bridges testified that as they were repairing the
waterbed, Susie began to cry and that defendant told
Bridges, “go on up there and get her, that’s all in
the hell she wants anyway, she is so damned spoiled.”
Bridges took the child out of her swing and brought
her back to the bedroom, where she laid her on the
waterbed.
After defendant finished fixing the bed,
Bridges helped her two sons, Scott and Tony, prepare
for bed, while her youngest son, John, Jr., remained
at Donald Wade’s trailer.
Bridges testified that she
also “got [Susie] to sleep” and placed her in her
“baby bed” located in Bridges’ bedroom.
Bridges
testified that when she placed Susie in her bed, she
appeared to be physically fine and that she did not
have any marks on her. Bridges then went back to the
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Wades’ trailer to wash the dishes.
Bridges
that when she left her trailer, Scott and
ready for bed, Susie was asleep in her
defendant was working on a plug in the living

testified
Tony were
bed, and
room.

Bridges’ son Scott testified that after his
mother left to go to the Wades’ trailer, and after he
went to bed, he was awakened by “hammer noises.” When
Scott awoke, he heard Susie crying. Scott testified
that he then heard defendant “mumbling” and that,
after he heard defendant mumbling, Susie stopped
crying.
After approximately forty-five minutes, Bridges
returned to her trailer and found Susie in her swing
in the living room. Bridges testified that defendant
was pacing the floor at this time and that he told her
to look at the bruises on Susie.
Defendant told
Bridges that he had moved the child to the swing after
she woke up and that some of the marks were grease.
Bridges attempted to wash these marks off but
discovered that they were not grease.
Bridges testified that she observed bruises in
child’s ears, under her neck, on her arms, and on
legs. Bridges further testified that her eyes did
“look right,” that she did not act right, and that
did not smile or respond to anything.

the
her
not
she

Burr, 461 S.E.2d at 607-08.
Burr

testified

in

his

defense.

He

confirmed

Bridges’

testimony that Scott had tripped and fallen on a gravel roadway
while carrying Susie earlier that day.

He testified that he

also examined Susie after the fall and that she was fine.
of

the

bruises

witnesses
or

gravel

confirmed
prints

that

on

her

Susie
skin

had

no

after

cuts,

the

All

scrapes,

fall.

Burr,

however, presented a somewhat different version of the events
leading up to Susie’s hospitalization, as follows:

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Defendant testified that on the evening of 24 August
1991, he mowed the yard at Bridges’ trailer until
dark.
During this time, Bridges was sitting on the
back steps with Susie. Defendant denied having a
conversation with Bridges or striking Bridges while he
was mowing. Defendant testified that when he finished
mowing the yard, he joined Bridges and her children
and Donald Wades’ daughters, Misty and Christy, at the
Wades’
trailer
and
watched
television
for
approximately
thirty
to
thirty-five
minutes.
Defendant and Bridges were arguing at this time about
Bridges going to her parents’ house.
Defendant
testified that Bridges finally “got mad enough [and]
went out the door” to her trailer, taking Susie with
her.
Defendant testified that he remained in the
Wades’
trailer
with
Bridges’
sons
and
Wades’
daughters.
Defendant testified that after a few minutes
passed, he told Scott to tell Bridges that if she
wanted to spend the night with her parents, he would
take
her
to
their
house.
Scott
left,
and,
approximately ten minutes later, Bridges returned to
the Wades’ trailer without Susie. Defendant testified
that he told Bridges that he would take her to her
parents’ house to spend the night. Approximately five
minutes later, defendant and Bridges left the Wades’
trailer and returned to Bridges’ trailer.
Defendant
testified that he pushed her in a playful manner on
the way to her trailer.
Defendant further testified that once they were
in Bridges’ trailer, he and Bridges went back to the
bedroom where the waterbed was located.
Defendant
testified that at this time, Susie was in her crib in
this bedroom. Defendant pushed Bridges onto the
waterbed “to have sex,” and when he fell on top of
her, the bed broke.
Defendant and Bridges then
attempted to repair the bed. Defendant testified that
after they drained the water from the bed and removed
the mattress, Bridges went to the Wades’ trailer to
wash dishes, and he began drilling on the bed. After
he started drilling, defendant looked into Susie’s
crib to see if he had woken her up, and he noticed
that her eyes were open. Defendant testified that he
stopped drilling, picked up the child, took her into
the living room, and put her in the swing, propping up
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her bottle with a blanket. Defendant wound the swing
and pushed it.
Defendant testified that when Bridges returned to
her trailer, she helped him put the remaining parts of
the bed together.
During this time, defendant walked
to the kitchen, and he noticed that the swing had
stopped and that Susie was holding the blanket with
her head over to the side. Defendant returned to the
bedroom.
Defendant testified that after he and
Bridges finished repairing the bed, he took the child
out of the swing and brought her back to her crib. As
defendant was putting the child down in the crib, he
noticed her diaper was wet, and he told Bridges to
change the diaper.
Defendant testified that when he
picked up the child’s legs, her eyes started rolling
from one side to the other and that Bridges told
defendant that the child was having a seizure.
Bridges told defendant that one of her sons was born
with seizures and that she knew what to do. Defendant
testified that at this time, Bridges shook the child
and her eyes stopped rolling. When asked how Bridges
shook the child, defendant responded, “[I]t wasn’t
real hard or nothing.”
Defendant testified on crossexamination that at this time, he and Bridges took the
child into the living room and kitchen where they had
a lamp and that he noticed bruises on the child.
Defendant testified that . . . he told [Bridges]
that some of the marks on the child could be grease.
They wiped the child with a cloth, and some of the
marks came off. . . . Defendant denied that the child
cried while he was alone with her that night, and he
denied that he tried to settle her down or that he
beat her.
Id. at 609-10.
Burr
Hospital.
events

drove

Bridges

and

Susie

to

the

Alamance

County

While there is some dispute between them as to the

that

had

occurred

up

until

this

point,

there

is

no

dispute about Susie’s medical condition upon her arrival at the
hospital.

It was grave.

Bridges told Dr. Willcockson, the
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examining

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physician,

that

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her

8-year-old

son

Scott

had

accidentally fallen while holding Susie the previous day.

But

it was apparent to Dr. Willcockson that Susie was a victim of
child abuse.
Dr. Willcockson examined the child and observed that
she was unconscious and “poorly responsive.”
The
child’s eyes were wandering but did not “have any
particular following,” and her right eye deviated to
the right.
Dr. Willcockson observed that the child
made no oral sounds and that her movements appeared
lethargic.
The child had occasional twitching of the
eyes, face, and arms, which appeared to be seizures
according to Dr. Willcockson. The child’s respiratory
rate was fast, and she had multiple bruises and
swellings all over her head, scalp, ears, face, neck,
arms, legs, and main portion of her trunk.
Further,
the soft spot on the child’s head where the bones were
forming was bulging, a symptom which Dr. Willcockson
testified indicates swelling in the head.
Dr.
Willcockson also testified that Susie had a “grating
feeling” in both arms and legs which meant the bones
were grating upon each other and which indicates bone
fractures.
The X rays revealed that both of the
child’s arms were broken, as well as both of her thigh
bones.
The X rays further showed that the child had
suffered some posterior rib fractures.
Dr. Willcockson testified that based on the
multiplicity of trauma, Bridges’ story of another
child falling with Susie did not account for the
injuries, and he immediately asked Bridges if Susie
had been abused, to which Bridges responded in the
negative.
Dr. Willcockson testified that he “felt
that there was such a high suspicion of abuse in the
matter” that he contacted the sheriff’s department and
social services.
Dr. Willcockson further testified
that based on the bruising around the head, the
seizures, and the bulging of the soft spot, he formed
the opinion that the child had suffered some form of
“closed head injury.”
Id. at 608.

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Due to the severity of her injuries, Susie was transferred
to North Carolina Memorial Hospital at 5:15 a.m., where she was
examined
associate

by

Dr.

Azizkhan,

professor

of

chief

surgery

Carolina Medical School.

at

of

pediatric

the

surgery

University

of

and
North

Dr. Azizkhan also rejected the fall

with Scott as a possible cause of Susie’s injuries.
Dr. Azizkhan testified that Susie had bruising of the
neck, particularly on the left side of the neck and a
two-centimeter-by-two-centimeter area underneath the
mastoid and the mandibular portion of her neck.
Dr.
Azizkhan observed bruising on the right side of the
face that extended onto the ear, circumferential
bruising of the right arm, and bruising on the back.
Dr. Azizkhan testified that the child’s blood pressure
“was very low for a baby [her] age” and that she had
lost “half of her blood volume” from internal
bleeding.
Dr. Azizkhan further testified that the bones of
a child Susie’s age “are quite malleable and soft” and
that “when you see fractures that are of this
magnitude in a baby, you know that the amount of force
that’s been delivered is very significant, much, much
greater than from a simple fall.”
Dr. Azizkhan
testified that to inflict the injuries to the child’s
legs “would require either a severe direct blow or
some kind of a snapping activity” and that the
fractures to the child’s arms “could be from intense
grabbing of the arm and torquing and pulling the
child’s arms backwards.”
In Dr. Azizkhan’s opinion,
Susie’s
injuries
were
“inflicted”
instead
of
“accidental.”
Id. at 608-09.
pediatrics

at

Medicine and

Dr. David Merten, professor of radiology in
the

chief

University
of

the

of

section

9

North
of

Carolina

pediatric

School

of

radiology

at

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Memorial Hospital, studied Susie’s X-rays and also testified at
trial.
Dr. Merten testified that these X rays revealed
fractures in both thigh bones with evidence of early
healing. In Dr. Merten’s opinion, these leg fractures
were eight to nine days old. The X rays also revealed
fractures on or near both shoulders.
These fractures
did not show any signs of healing, and, in Dr.
Merten’s opinion, they occurred five days later than
the leg fractures.
Dr. Merten testified that the
fractures in the legs “were produced simply by bending
the knee with violence, significance [sic] force,
forward, and hyperextending [the knees]” and that the
shoulder fractures were “inflicted and incurred” by
“taking the arms and bending them back.”
Regarding
the injuries to the head, Dr. Merten testified that
the child had a depressed skull fracture where the
skull was actually broken and that the child had
suffered injury to the brain underneath this fracture.
Dr. Merten testified that this head injury was “a very
unusual fracture in a very unusual place” and that “it
would take a relatively confined direct blow to that
area to produce this type of fracture.”
Dr. Merten
further testified that this head injury occurred
within hours before her admission to the hospital in
Chapel Hill.
Id. at 609.

Dr. Michael Byron Tennison, a child neurologist at

Memorial Hospital, testified at trial regarding Susie’s CT scan.
Dr. Tennison testified that this scan showed not only
a depressed skull fracture, but also “multifocal
intercranial injuries” and bleeding behind both eyes.
Dr. Tennison testified that bleeding behind both eyes
is “highly suggestive of a shaken baby syndrome,”
which he defined as a “specific kind of injury where
the baby has a whiplash kind of injury from being
shaken back and forth.”
Dr. Tennison further
testified that, based on the nature of the skull
fracture, the child suffered “quite a force ... by
some blunt object” to the side of the head and that it
would have taken a great deal of force to cause this
fracture.

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Id.
Despite their efforts, the trauma team at Memorial Hospital
was unable to reduce the swelling and pressure in Susie’s brain.
Dr. Tennison testified that Susie died as a result of “multiple
trauma to her head that resulted in contusions of the brain and
eventually brain swelling and herniation and brain death.”

Id.

(internal quotation marks omitted).
Dr. Karen Chancellor, a pathologist at Memorial Hospital,
performed Susie’s autopsy.
Dr. Chancellor observed multiple bruises on the
child’s neck that were consistent with marks caused by
a hand and bruises on the cheek that were consistent
with marks caused by fingers.
Dr. Chancellor further
observed round bruises on the upper chest area and a
round bruise on the back, which bruises, in her
opinion, were caused by a blunt object.
Dr.
Chancellor also observed bruises on the back of the
head.
Id.

The Report of Autopsy included pathological diagnoses of

blunt force trauma to the head, blunt force trauma to the neck
and chest with bruising of the neck and chest, and blunt force
trauma to all four extremities.
B.
In September 1991, Burr was indicted for Susie’s murder and
he

was

appointed

trial

counsel.

In

mid-December

1992,

with

trial rapidly approaching, Burr asked the court to appoint new
counsel.

The court obliged.

The trial was initially set for

January 25, 1993, but trial counsel requested and received a
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continuance to March 1, 1993.

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Counsel sought an additional one-

month continuance on the eve of trial, from both the trial court
and the North Carolina Supreme Court, based in part upon their
desire to spend additional time evaluating the medical evidence
and the need for expert assistance.
Prior
counsel

to

the

scheduled

start
an

of

the

in-person

The requests were denied.
guilt

phase,

consultation

however,

with

Dr.

trial

Desmond

Runyan, a physician at Memorial Hospital and Director of the
Child

Medical

Evaluation

Program

at

the

University

Carolina Children’s Hospital in Chapel Hill.

of

North

Dr. Runyan had

been called in to consult on Susie’s case at the time of her
injuries and death but did not testify at trial.

The record

reflects that Dr. Runyan provided the following information to
the North Carolina Department of Social Services (“DSS”):
[B]oth [of Susie’s] arms were broken cleanly through
the bone just below the shoulder.
Both legs were
broken cleanly through just below the hip. There was
no evidence of twisting – no spiral fracture of any
bone.
To break the bones in the manner they were
broken would take a hard blow. There is a fracture of
the skull that probably occurred on Saturday night.
It is just above the right ear on the right temple.
The fractures in the arms [and] legs probably
occurred
seven
to
ten
days
prior
to
her
hospitalization on Sunday morning.
All of the breaks
have begun calcification.
[T]his begins to occur
about seven days after the break. [T]he calcification
is in different stages, so they would begin to heal,
and from her own movement or from being picked up, the
breaks would be reinjured. [Susie] would have been in
extreme pain. She would have been crying, not eating,

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and not wanting to be held.
her behavior does not fit.
J.A. 1436.

The family’s account of

Dr. Runyan also commented on the issue of whether

Susie’s injuries could have occurred when Scott fell with her:
[Dr. Runyan] stated that [Susie] would have to be
dropped from about 8 feet 6 inches or more to cause
the amount of brain damage and injury th[e] child
suffered.
An 8 [year] old is not strong enough to
cause any of these injuries.
The fall with Scott
probably would have hurt the child if she hit the
ground, but it would be minor injuries.
For the
breaks in the arms and legs, it would take adult
strength blows, not a child.
[T]here are two
occaisions [sic] of injury; 7-10 days prior to
hospitalization and Saturday night.
J.A. 1436.
Given the extent and nature of Susie’s injuries, counsel
was clearly presented with a difficult case.

However, there

were no eyewitnesses who could explain Susie’s prior abuse or
her acute injuries.

At trial, trial counsel conceded that Susie

was a battered child, with preexisting fractures, and conceded
that her fatal injuries were the result of an acute episode of
child abuse occurring on August 24.

Trial counsel also conceded

that Scott’s fall with Susie could not have caused the extensive
injuries
examiner.

documented

by

the

treating

physicians

and

medical

Trial counsel argued, however, that the state could

not prove beyond a reasonable doubt that Burr -- who was only
sporadically in the home and not a primary caretaker -- was
Susie’s abuser either prior to or on the night in question.

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In

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support

testimony

from

of
Dr.

this

Pg: 14 of 41

strategy,

Chancellor

trial

that

one

counsel

quick,

hard

elicited
blow

to

Susie’s head by a fist could have caused the fatal injury, and
presented
motive

evidence

and

and

argument

opportunity

to

that

inflict

there
the

were

fatal

others
wound.

with
In

particular, counsel pointed the finger at Bridges, who had been
angry and arguing with Burr all day and who had opportunities to
abuse Susie.

Counsel pointed out that it was not credible to

believe that Bridges, who was Susie’s primary caretaker, had
failed to realize that Susie had preexisting fractures or see
the

older,

injuries.

brown

bruises

that

were

present

from

the

earlier

Counsel also pointed out Bridges’ admission that,

before she and Burr took Susie to the emergency room, Bridges
took the time to instruct her three minor children about what
they

should

say

if

the

authorities

came

to

question

them.

According to Bridges’ testimony, she “told the boys that as bad
as their sister looked that if anybody came by and asked them
did I abuse them or beat on them, you tell them that I whip you
in the right way.”

J.A. 2054.

When asked why she had taken

this step to warn her children, Bridges responded that it was
“[b]ecause Susie looked that bad.”
pointed

out

that,

while

Bridges

J.A. 2054.
initially

Counsel also

denied

to

the

authorities that Burr was abusive to her, and Bridges and Burr
both related only the fall with Scott as a possible cause of
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Susie’s injuries, Bridges changed her story and began to direct
suspicion

towards

authorities

Burr

unanimously

once

the

rejected

treating

the

physicians

possibility

that

and

Susie’s

injuries could have occurred from the fall.
Trial counsel also presented the testimony of Colene Faith
Flores.

Flores claimed that she saw Bridges at a friend’s house

with a baby in August 1991.

Flores testified that after the

baby had been crying constantly for approximately thirty-five
minutes, “she . . . observed Bridges walk over to the baby,” who
had

been

propped

on

the

couch,

‘you’re driving me crazy.’”
testified
counsel

that “the
also

cleanliness
problem

Bridges’

her

‘smack’

her,

stating,

Burr, 461 S.E.2d at 611.

Flores

Id. 1

Trial

fell off

the

Bridges

“regarding

impeached

of

with

baby

“and

home

children,

and

the

her

fact

couch.”

the

children,
that

DSS

lack

the
has

of

truancy
received

[prior] allegations of neglect against Bridges concerning two of
her

sons,

psychiatric
instability.”

and

a

history

social
and

worker’s

opinion

relationship

with

that
men

Bridges’

suggest[ed]

Id. at 618 (alteration and internal quotation

1

The state called Flores’ ex-boyfriend, James Whitlow, to
testify on rebuttal. “Whitlow testified that he was with Flores
at her friend’s house and that at no time did he observe anyone
slap the baby off the couch. Whitlow also testified that he had
discovered Flores lying to him previously.” Burr, 461 S.E.2d at
611.

15

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marks

Filed: 03/11/2013

omitted).

hospitalized

There

and

was

received

Pg: 16 of 41

evidence

that

medication

Bridges

and

had

been

treatment

for

depression not long before she became pregnant with Susie.
Despite trial counsel’s efforts, the jury convicted Burr of
first

degree

female.

murder,

felony

child

abuse,

and

assault

on

a

Upon the jury’s recommendation, the court sentenced

Burr to death for the murder, to thirty days imprisonment for
the assault on a female conviction, and arrested judgment on the
felony child abuse conviction.
With the assistance of new counsel, Burr filed a direct
appeal

to

the

North

Carolina

Supreme

Court.

Among

other

arguments, Burr contended “that the trial court erred by failing
to grant his motion for a continuance, thereby violating his
constitutional

rights

assistance of counsel.”

to

confrontation
Id. at 619.

and

to

the

effective

In rejecting this claim,

the court found as follows:
[D]efense counsel had access to the medical evidence
containing
the
necessary
evidence
they
required
regarding the need for an expert for two months prior
to trial, and having observed the evidence and medical
testimony
at
trial,
defendant
has
had
ample
opportunity to show how his case would have been
better prepared with regard to this evidence had the
continuance been granted, or to show that he was
materially prejudiced. He has failed to do so.
Id. at 620.

The Supreme Court denied certiorari.

North Carolina, 517 U.S. 1123 (1996).

16

See Burr v.

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C.
On September 27, 1996, Burr’s state post-conviction counsel
filed a Motion for Appropriate Relief (“MAR”) in state court,
which was followed by several amendments.
alia,

that

his

trial

counsel

were

Burr claimed, inter

constitutionally

deficient

under Strickland because they failed to adequately investigate
the medical evidence in the case.

More particularly, however,

Burr

should

asserted

that

presented

to

suffered

from

Imperfecta,

the

trial

jury
an

or

counsel

expert

testimony

undiagnosed

“brittle

bone

have
that

condition

disease,”

developed
Susie

of

(the

may

and
have

Osteogenesis

“OI”

evidence),

which could explain her prior fractures, and/or that her fatal
injuries occurred when her 8-year-old brother Scott tripped and
fell while carrying her that day (the “short-fall” evidence).
In support of this theory of accidental injury and death, Burr
submitted affidavits from three consulting experts who reviewed
the

Alamance

County

Hospital

and

North

Carolina

Memorial

Hospital records.
The
Clinical

first

affidavit

Professor

of

was

from

Pediatrics

Carolina Medical School.

Dr.
at

Jerry

the

C.

Bernstein,

University

of

a

North

Although Dr. Bernstein agreed that

“consideration of abuse [was] uppermost in one’s diagnosis,” he
stated
“should

that

the

raise

a

number

and

question

of

nature

of

the

osteogenesis
17

multiple

fractures

imperfecta

(brittle

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bone disease),” and that Susie’s injuries could have resulted
from an accidental fall compounded by OI.
After

consulting

with

Dr.

J.A. 968.

Berstein,

counsel

obtained

a

second affidavit from Dr. Colin R. Paterson, from the University
of

Dundee,

in

Scotland,

who

was

expert in brittle bone diseases.

considered

to

be

a

leading

Dr. Paterson also stated that

“[t]he number and distribution of fractures . . . raises the
possibility of brittle bone disease (osteogenesis imperfecta).”
J.A. 908.

He attributed the earlier fractures to “some form of

[OI],” and all of Susie’s acute injuries to a “bad fall . . .
compounded by this disease.”

J.A. 909.

Both Dr. Bernstein and Dr. Paterson based their opinions
upon an accident whereby Scott dropped Susie to the ground and
then

fell

on

top

of

her

--

a

version

of

the

accident

that

appeared in some early medical and investigative reports but
which was not supported by the eyewitness testimony at Burr’s
trial.

Both Dr. Berstein and Dr. Paterson also noted that,

based upon their review of the medical records, Susie’s treating
physicians

may

not

have

considered

this

OI/short

fall

combination as a possible explanation for Susie’s preexisting
and fatal injuries.
The

final

affidavit

was

from

Dr.

John

J.

Plunkett,

a

forensic pathologist and coroner from the State of Minnesota.
Dr.

Plunkett

stated

that

Susie’s
18

injuries

were

“absolutely

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consistent with those which may be caused if she was dropped
onto a gravel surface by an older sibling, who then fell on top
of

her.”

J.A.

943.

Dr.

Plunkett

did

not

address

the

possibility of a brittle bone disease, nor did he address the
cause of Susie’s prior, healing fractures.
The
affidavit

state

offered

outlining

evidence

the

in

district

opposition,
attorney’s

including

an

interviews

of

Susie’s treating physicians and their opinions regarding OI and
Scott’s fall with Susie.

The physicians rejected these theories

as alternative causes of Susie’s extensive injuries and death,
and it appears that the state was prepared at trial to refute
any

such

accidental

death

claim

with,

at

a

minimum,

these

opinions.
In two exhaustive orders, the state MAR court considered
and rejected Burr’s ineffective assistance of counsel claim. 2

In

doing so, the state court made a number of factual findings and
conclusions that we summarize here. 3

2

On July 29, 1998, the North Carolina Supreme Court granted
Burr’s Petition for Writ of Certiorari for the limited purpose
of reconsideration in light of two state court cases. See State
v. Burr, 511 S.E.2d 652 (N.C. 1998).
This led to the second
state MAR court’s issuance of a second “Order and Memorandum
Opinion,” dated June 15, 2000, again denying relief. J.A. 1786.
3

Burr additionally argued that he should be granted a new
trial under North Carolina law based upon the “newly-discovered”
OI/short-fall evidence.
While the new-trial claim is not
directly relevant here, the state MAR court made findings and
(Continued)
19

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With

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regard

to

the

Pg: 20 of 41

expert

opinions

that

Susie

may

have

suffered from OI or some similar degenerative or brittle bone
disease

that

her

treating

physicians

did

not

recognize

or

consider, the state court pointed out that the “defendant, the
party

with

the

burden

of

proof

.

.

.

ha[d]

not

presented

anything from the experts who testified at trial demonstrating
either that they never considered the possibility that Susie had
OI or that they believed that she had OI and that OI contributed
to her death.”

J.A. 1420 (emphasis added).

On the contrary,

the court observed that “matters of record indicate that the
experts who testified found nothing indicative of bone disease
when evaluating Susie.”
MAR

court

[were]

noted

perfectly

Dr.

J.A. 1420.

Merten’s

normal

other

In particular, the state

testimony
than

the

that

Susie’s

injuries,”

“bones

J.A.

1421

(internal quotation marks omitted); Dr. Merten’s confirmation to
the lead prosecutor “that he had observed nothing in [Susie] to
indicate that she suffered from any such disease,” J.A. 1421;
Dr. Azizkhan’s reference in his trial testimony “to the very
rare condition of brittle bones in premature babies, evidence
indicating that he too was aware of the existence of ‘brittle

conclusions in connection with this claim that are also
pertinent to its rejection of the ineffective-assistance-ofcounsel claim.

20

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bone’

Filed: 03/11/2013

disease,”

examiner,

Dr.

J.A.

1421;

Chancellor,

Pg: 21 of 41

and

the

that

testimony

“there

was

of
no

the

medical

degenerative

disease processes” observed, J.A. 1421 (internal quotation marks
omitted).
The state court also reviewed numerous articles regarding
child abuse and OI that had been provided by Dr. Merten and
submitted to the court.

The court found the articles to be

indicative “of the knowledge possessed by a reasonably prudent
physician concerning the causes and diagnosis of child abuse
vis-à-vis accidental injury,” J.A. 1391, and noted that four of
the articles “included references to children with bone disease
or osteogenesis imperfecta,” J.A. 1398.
reviewed

the

medical

features

indicating

present in Susie.

records

the

and

possible

J.A. 1422.

The court additionally

noted

existence

that
of

“the
OI”

salient
were

not

Finally, the court noted that the

consulting expert’s opinion regarding Scott’s fall was contrary
to the evidence at trial regarding the accident, contrary to the
unanimous views of the physicians who treated Susie, and did not
address OI.

Nor, we note, did it explain Susie’s preexisting

fractures.
Having reviewed all of the medical evidence presented, and
taking note of the qualifications, experience, and training of
Susie’s treating physicians, the state court found no basis upon
which to conclude that the eminently qualified physicians who
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treated Susie “simply failed to give any consideration as to
whether Susie had a bone disease that contributed to her death,”
J.A. 1422, and found that “the far more reasonable inference is
that

[they]

knew

that

fractures

are

sometimes

caused

by

degenerative bone disease, but that nothing indicative of bone
disease

surfaced

while

they

were

evaluating

circumstances surrounding her injury and death.

Susie

and

the

Defendant, who

has the burden of proof, has not demonstrated otherwise.”

J.A.

1422.
Turning more specifically to the claim that trial counsel
did not adequately prepare for trial, the state court made a
number of additional findings, as follows:
First, matters of record demonstrate that trial
counsel worked diligently for a reasonable amount of
time. . . .
Second, lead trial counsel had
considerable experience in the Guardian Ad Litem
program that helped him understand the dynamics of a
prosecution based on child abuse.
Third, trial
counsel had an opportunity before trial to review both
the medical evidence available and the thorough
statements of a number of witnesses and other
information in the State’s open files.
Fourth, trial
counsel knew before trial that a host of eminent
medical experts had reviewed available information
concerning Susie and her cause of death, and that all
experts opined that Susie died of child abuse, not an
accidental fall.
Fifth, even though trial counsel
tried diligently to delay the start of the trial,
defendant’s well-qualified and experienced lead trial
counsel never asserted a particularized necessity for
appointment of an expert.
Sixth, defendant’s pretrial motions and the transcript demonstrate that
trial counsel’s actions were driven by a strategy to
attempt to shift blame to a third party (e.g., Susie’s
mother) and the understanding, based on the review of
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a plethora of information from respected physicians,
that Susie’s death was not attributed to accidental
injury.
J.A.

1807-08

state

MAR

(internal
court

citation
observed

omitted).
that

In

addition,

while

the

“[d]efendant’s

postconviction counsel have found experts who take issue with
the [medical] witnesses at trial[,] [t]he mere fact that they
have found such experts does not demonstrate ineffectiveness of
counsel.”
counsel’s

J.A. 1809.
actions

The state court observed that “trial

[must

be

evaluated]

in

light

of

the

circumstances facing trial counsel at and before trial, and not
from the vantage point of ‘20-20 hindsight,’” that counsel’s
“performance

was

objectively

reasonable”

under

the

circumstances, and that “defendant’s proffers of evidence have
not shown a reasonable probability that but for trial counsel’s
alleged unprofessional errors, the result of the trial would
have been different.”

J.A. 1809.

The North Carolina Supreme

Court denied Burr’s petition for certiorari.

J.A. 1864.

D.
On April 12, 2001, Burr filed the instant petition for a
writ of habeas corpus under 28 U.S.C. § 2254(d).

On December

14, 2004, the magistrate judge recommended that habeas relief be
granted,

but

subsequently

stayed

the

matter

pending

the

development of additional evidence, including the identification
and discovery of additional experts.
23

Following such discovery

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and

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supplemental

briefing,

Pg: 24 of 41

the

magistrate

judge

issued

a

supplemental recommendation that habeas relief be granted. 4
On

May

30,

2012,

granting habeas relief.

the

district

court

issued

its

order

Because the Supreme Court’s then-recent

decision in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), made
it clear that the development of the evidence in the federal
habeas proceedings should not have been allowed, the district
court considered only the record that was before the state MAR
court when it made its decision.

The district court ruled that

Burr had made a sufficient showing that his trial counsel were
ineffective for failing to conduct additional investigation into
the medical evidence, and that the state court’s rejection of
the claim was unreasonable.

This appeal followed.

II.
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996, our review of the state
MAR court’s decision rejecting Burr’s ineffective assistance of
counsel claim is highly deferential.

Where, as here, a federal

habeas petitioner’s constitutional claim has been “adjudicated
4

The magistrate judge noted the state’s additional motion
to quash the affidavit of Dr. Paterson, whose medical license
had been revoked, and stated that this “would cause the Court,
at the very least, to afford his opinion considerably less
weight than previously assigned.” J.A. 443.

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on the merits in State court proceedings,” we may not grant
relief

unless

decision

the
was

that

state

court’s

contrary

“resulted

or

to,

adjudication

an

involved

in

a

unreasonable

application of, clearly established Federal law, as determined
by the Supreme Court of the United States” or “resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.”

28

U.S.C.

§

2254(d).

See

also

Harrington

v.

Richter, 131 S. Ct. 770, 785 (2011).
The “clearly established” Supreme Court precedent at issue
in this appeal is Strickland v. Washington, which sets forth the
two-prong

standard

ineffective

for

assistance

evaluating
of

Sixth

counsel.

To

Amendment
establish

claims

of

ineffective

assistance of counsel, “the defendant must show that counsel’s
performance was deficient,” and that “the deficient performance
prejudiced the defense.”

Strickland, 466 U.S. at 687.

“Unless

a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.”

Id. at

687.
To

demonstrate

Strickland,

the

inadequate
defendant

representation

fell

reasonableness”

measured

below
by

or

deficient

must
an

“show
objective

“prevailing
25

performance
that

counsel’s

standard

professional

under

of

norms.”

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Id. at 688.

Pg: 26 of 41

“A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of
hindsight,

to

reconstruct

the

circumstances

of

counsel’s

challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.”

Id. at 689.

“[A] court must indulge

a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.”

Id.

To demonstrate prejudice under Strickland, “[t]he defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different,” i.e., that he would have been found
not

guilty.

Id.

at

694.

“A

reasonable

probability

is

a

probability sufficient to undermine confidence in the outcome.
It is not enough ‘to show that the errors had some conceivable
effect on the outcome of the proceeding.’”

Harrington, 131 S.

Ct. at 787 (citation omitted) (quoting Strickland, 466 U.S. at
693).

“Counsel’s errors must be ‘so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.’”
Id. at 787-88 (quoting Strickland, 466 U.S. at 687).
Consequently, where the issue is whether the state court
has unreasonably applied Strickland standards to an ineffective
assistance of counsel claim, “double deference” is required –
deference

to

the

state

court

judgment

trial counsel’s performance.
26

granting

deference

to

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“Surmounting Strickland’s high bar is never an
easy task.”
Padilla v. Kentucky, 130 S. Ct. 1473,
1485 (2010).
An ineffective-assistance claim can
function as a way to escape rules of waiver and
forfeiture and raise issues not presented at trial,
and so the Strickland standard must be applied with
scrupulous care, lest “intrusive post-trial inquiry”
threaten the integrity of the very adversary process
the right to counsel is meant to serve. Strickland,
466 U.S. at 689–90.
Even under de novo review, the
standard for judging counsel’s representation is a
most deferential one. Unlike a later reviewing court,
the attorney observed the relevant proceedings, knew
of materials outside the record, and interacted with
the client, with opposing counsel, and with the judge.
It is “all too tempting” to “second-guess counsel’s
assistance after conviction or adverse sentence.” Id.
at 689; see also Bell v. Cone, 535 U.S. 685, 702
(2002); Lockhart v. Fretwell, 506 U.S. 364, 372
(1993).
The question is whether an attorney’s
representation
amounted
to
incompetence
under
“prevailing
professional
norms,”
not
whether
it
deviated from best practices or most common custom.
Strickland, 466 U.S. at 690.
Establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the
more difficult.
The standards created by Strickland
and § 2254(d) are both “highly deferential,” id., at
689; Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997),
and when the two apply in tandem, review is “doubly”
so, Knowles [v. Mirzayance], 129 S. Ct. [1411], 1420
[2009]. The Strickland standard is a general one, so
the range of reasonable applications is substantial.
129 S. Ct. at 1420. Federal habeas courts must guard
against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d).
When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.
Harrington, 131 S. Ct. at 788.
As

the

Court

succinctly

stated,

“[i]f

this

standard

difficult to meet, that is because it was meant to be.”
27

is

Id. at

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786.

Filed: 03/11/2013

Pg: 28 of 41

Indeed, “even a strong case for relief does not mean the

state court’s contrary conclusion was unreasonable.”

Id.

As a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in
federal court was so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.”
Id. at 786-87.
“Section 2254(d) thus
complements
the
exhaustion
requirement
and
the
doctrine of procedural bar to ensure that state
proceedings are the central process, not just a
preliminary
step
for
a
later
federal
habeas
proceeding.
Id. at 787 (emphasis added).

III.
We begin with Burr’s argument that we should review the
state

MAR

court

decision

de

novo

deferential standards of § 2254(d).

instead

of

under

the

Relying upon our decisions

in Winston v. Kelly, 592 F.3d 535 (4th Cir. 2010) (“Winston I”),
and Winston v. Pearson, 683 F.3d 489 (4th Cir. 2012) (“Winston
II”),

Burr

argues

that

the

state

court

decision

was

not

an

adjudication on the merits for purposes of § 2254(d) because the
state court denied his request for an evidentiary hearing.
In Winston I, we held that a state court decision might not
be

deemed

an

adjudication

on

the

merits

for

purposes

of

§

2254(d) if diligent counsel was unable to complete the state
court record because the “state court unreasonably refuse[d] to

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permit further development of the facts of a claim.”

Winston

II, 683 F.3d at 496 (internal quotation marks omitted).

Here,

while the MAR court did not hold an evidentiary hearing, Burr’s
state post-conviction counsel had an unfettered opportunity to
obtain

and

present

OI/short-fall

expert

theory

of

opinions

defense,

in

and

support
the

of

state

the

MAR

accepted the affidavits of these experts at face value.

new

court
The

state court did not deny Burr’s state post-conviction counsel an
opportunity to develop the evidence that was presented during
the federal evidentiary hearing.
believe

that

state

Indeed there is no reason to

post-conviction

counsel

could

not

have

developed the exact evidence produced by Burr’s counsel in the
federal evidentiary hearing.
conviction

counsel

The fact that Burr’s state post-

requested

but

was

denied

an

evidentiary

hearing simply does not, without more, warrant de novo review of
the state court’s decision.
Accordingly,
court’s

like

the

adjudication

See Winston II, 683 F.3d at 497.

district
of

the

court,

we

Strickland

review
claim

the
under

state
the

deferential standards of § 2254(d).

IV.
A.
Burr contends that his trial counsel were constitutionally
deficient

because

they

failed
29

to

conduct

an

adequate

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investigation into the medical evidence in this case, and failed
to make a reasoned decision that further investigation was not
required.

See

Rompilla v. Beard, 545 U.S. 374, 380 (2005);

Wiggins v. Smith, 539 U.S. 510, 521-22 (2003).

The heart of

Burr’s claim, however, is that trial counsel were ineffective
because they failed to obtain and present expert testimony to
refute the medical opinions of Susie’s treating physicians, and
failed to present to the jury an argument (1) that Susie had OI
which, combined with accidents, explained all of her injuries,
or (2) that even if Susie was a battered child, her fatal head
injury was from the fall with Scott alone and not from an acute
incident of such child abuse.
To obtain federal habeas relief on this Strickland claim,
however, Burr must satisfy us that the state court’s rejection
of Burr’s arguments “was so lacking in justification that there
was an error well understood and comprehended in existing law
beyond

any

Harrington,

possibility
131

S.

Ct.

at

for

fairminded

786-87.

“[T]he

disagreement.”
question

whether [trial] counsel’s actions were reasonable.
is

whether

there

is

any

reasonable

argument

satisfied Strickland’s deferential standard.”

is

not

The question
that

counsel

Id. at 788.

Burr

has failed to overcome this hurdle.
The state MAR court found that trial counsel had experience
in child abuse matters, had adequate time to review the medical
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evidence and witness statements, and worked diligently for a
reasonable amount of time investigating the case.
it

must

“evaluate

trial

counsel’s

actions

in

Mindful that
light

of

the

circumstances facing trial counsel at and before trial, and not
from the vantage point of ‘20-20 hindsight,’” the state court
concluded

that

reasonable.”

trial
J.A.

counsel’s

1809.

We

“performance
cannot

say

was

that

objectively
this

was

an

unreasonable determination of the facts in light of the state
court

record,

or

an

unreasonable

application

of

Strickland’s

deferential standards.
There is no question but that Burr’s trial counsel were
aware of Scott’s fall with Susie earlier in the day.

However,

Susie was observed by both her mother and by Burr to be fine
after the fall.

All of the witnesses who checked on Susie after

the fall related that she had no cuts, scrapes, or gravel marks,
which was also consistent with the “cradled fall” description
that was given by the witnesses during the investigation and at
trial.
with

More importantly, however, trial counsel were presented
medical

treating

records

physicians

preexisting
sustained,

and
and

from

and

acute

independent,

pediatric

specialists

non-accidental

unanimously

eminently

rejecting

injuries
the

qualified

documenting

the

that

had

notion

Susie

that

Scott’s

fall with Susie (even as originally reported) was a possible
cause of the injuries.
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Susie’s
Hospital
diffuse,
Bridges

initial

treating

immediately
severe
had

physician

recognized

injuries,

related

Pg: 32 of 41

it

to

and

that

that

him,

Alamance

Susie

had

fall

the

could

at

with

not

account

County

sustained
Scott,
for

as

them,

prompting him to alert authorities to the suspected child abuse.
The

investigating

severity

of

the

authorities
injuries

as

observed
well.

and

documented

Susie’s

treating

the
and

evaluating physicians at the UNC Medical Center, all of whom
were

pediatric

and

child

abuse

experts,

were

also

of

the

unanimous opinion that Susie had been abused, and that Scott’s
fall could not have caused her injuries.
When Susie was admitted to the hospital, she had sustained
an acute, blunt force head injury and was suffering from the
effects of it, including seizures, swelling of the fontanel, and
unconsciousness.
reasonably

Even if competent trial counsel would have

entertained

the

notion

that

Susie’s

lethal

head

injury might have occurred when Scott fell with her earlier in
the day (in the face of the evidence that she had no visible
marks and seemed fine thereafter), the head injury was just the
start of the picture painted by these records.
As noted above, Susie had no visible marks or bruises when
she was checked by her mother, Burr and other family members.
But when Susie arrived at the hospital six hours later, she had
multiple bruises and swelling all over her head, scalp, ears,
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face, neck, arms, legs, and trunk.

Bruises on her neck were

consistent with marks caused by a hand.

Bruises on her cheek

were consistent with marks caused by fingers.

Round bruises to

the upper chest and back indicated that a blunt object had been
utilized to inflict them.

There were additional bruises to the

back of the head, as well as bleeding behind both of her eyes
which was considered to be suggestive of shaken baby syndrome.
In addition, both of Susie’s upper thighs and both of Susie’s
upper

arms

“were

broken

cleanly

through.”

J.A.

1436.

The

nature of the breaks suggested either significant direct blows
or gruesome, manual manipulation of the extremities.

Susie’s

leg breaks were consistent with her knees being bent forward
with violence and significant force, hyperextending the knees
until the leg was broken.

Susie’s arm breaks were consistent

with someone grabbing her arms, torqueing them and pulling them
backwards.
To the extent Burr continues to press OI as a possible,
contributing

cause

of

Susie’s

injuries

and

death,

there

was

likewise nothing in the records that would have raised such a
possibility. 5

As the state court found, Burr, “the party with

5

The district court properly declined to consider the
additional
evidence
developed
during
the
federal
habeas
proceedings, but it did observe that the evidence that Susie
suffered from OI had weakened.
On appeal, Burr’s counsel
largely abandons the OI portion of the claim, which was the
(Continued)
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the burden of proof . . . [did] not present[] anything from the
[treating

physicians]

considered

the

demonstrating

possibility

that

either

Susie

had

that
OI

or

they

never

that

they

believed that she had OI and that OI contributed to her death.”
J.A. 1420 (emphasis added).

On the contrary, the “matters of

record indicate[d] that the [treating physicians] found nothing
indicative of bone disease when evaluating Susie.”

J.A. 1420.

There was simply no basis upon which to conclude that Susie’s
treating

physicians

“failed

to

give

any

consideration

as

to

whether Susie had a bone disease that contributed to her death,”
J.A. 1422, and that “the far more reasonable inference [was]
that

[they]

knew

that

fractures

are

sometimes

caused

by

primary focus of the argument presented to the state MAR court.
Counsel barely mentions Dr. Bernstein or Dr. Paterson in the
history of the case, and confirms the state’s introduction of
evidence that “Dr. Paterson was [subsequently] charged with
providing misleading testimony about another syndrome, Temporary
Brittle Bone Disease,” Appellee’s Brief at 29 n.11, apparently
causing him to lose his medical license.
Instead, Burr
primarily relies instead upon Dr. Plunkett’s affidavit and
argues that counsel should have developed evidence that Susie’s
fatal injury could have resulted from the fall with Scott alone.
While we take note of this evolution of the post-conviction
claim as it has progressed over the past 16 years, we do not
consider the evidence as it developed in the federal court and
need not confront the issue of Dr. Paterson’s credibility at
this juncture.
The state court accepted Dr. Paterson’s
affidavit at face value. Our review is limited to the question
of whether the state court’s adjudication of the ineffective
assistance of counsel claim, as it was presented to it, was
unreasonable.

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degenerative bone disease, but that nothing indicative of bone
disease

surfaced

while

they

were

evaluating

circumstances surrounding her injury and death.”

Susie

and

the

J.A. 1422.

The record also does not support Burr’s contention that
trial counsel unreasonably failed to secure the assistance of an
expert
records.

in

light

of

the

factual

investigation

and

medical

Trial counsel requested an eleventh-hour continuance

based in part upon their stated desire to evaluate the need for
expert assistance.

That request was denied.

But, prior to the

start of the guilt phase of Burr’s trial, counsel did in fact
consult with Dr. Runyan, a leading North Carolina child abuse
expert.

Dr.

Runyan

confirmed

that

Susie’s

death

was

non-

accidental and that Scott’s fall could not have been the cause.
According to Dr. Runyan, Susie “would have to be dropped from
about 8 feet 6 inches or more to cause the amount of brain
damage and injury [she] suffered.”

6

J.A. 1436. 6

During their treatment of Susie, some of the physicians,
based upon x-rays and CT scans, observed that Susie had
sustained a skull fracture in addition to the underlying closed
head trauma that led to her death.
Dr. Chancellor’s autopsy
report indicated that there was no fracture of the skull,
although there was clearly no dispute as to the existence of the
blunt force head trauma that caused Susie’s death.
Burr makes
much of the existence or nonexistence of an actual fracture to
the skull itself, but we are at a loss to see much critical
significance.
All of the treating physicians and the medical
examiner agreed that the cause of Susie’s death was blunt force
head trauma, and its resulting swelling and pressure in the
brain, and that significant force was necessary to cause this
(Continued)
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As the state court reasonably observed, “trial counsel knew
before trial that a host of eminent medical experts had reviewed
available information concerning Susie and her cause of death,
and that all experts opined that Susie died of child abuse, not
an accidental fall.”

J.A. 1807 (emphasis added).

These medical

opinions were not from consulting experts or state witnesses
retained or employed to assist in the collection of evidence on
behalf

of

the

prosecutors.

They

were

from

the

treating

physicians who actually examined Susie and attempted to save her
life, and from the medical examiner that conducted the autopsy.
We have no doubt that competent trial counsel, after consulting
with Dr. Runyan, reasonably concluded that further investigation
was unnecessary, and that they were foreclosed from credibly
arguing

to

accidental

the

jury

that

fall

with

her

Susie

died

8-year-old

as

a

result

brother.

The

of

the

medical

opinions regarding the existence of child abuse and the nonaccidental

nature

of

the

cause

of

death

were

unanimous,

consistent with the physical evidence and factual investigation,
and overwhelming.

trauma. Burr presented no evidence to the state MAR court that
the treating physicians would have changed their opinions
regarding child abuse vis-à-vis accident based upon the
difference in the radiographic evidence and the autopsy report.

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Finally, Burr’s claim that trial counsel’s concession of
child abuse and failure to pursue alterative theories of injury
and death left Burr defenseless and the jury with no “rational
option” other than to convict is likewise not supported by the
record.

See Elmore v. Ozmint, 661 F.3d 783, 855 (4th Cir.

2011).

As

the

state

MAR

court

observed,

“trial

counsel’s

actions were driven by a strategy to attempt to shift blame to a
third party (e.g., Susie’s mother) and the understanding, based
on

the

review

of

a

plethora

of

information

from

respected

physicians, that Susie’s death was not attributed to accidental
injury.”
the

J.A. 1807-08.

trial

Our independent review of the record of

unquestionably

reveals

this

to

be

the

case.

Capitalizing upon Burr’s minimal role in the family, as well as
evidence of Bridges’ actions leading up to and on the night of
the fatal abuse, trial counsel pointed the finger at Bridges as
an alternative suspect, and persuasively argued reasonable doubt
to the jury.
Burr’s current post-conviction counsel ignores this clear
strategy, and repeatedly represents that trial counsel did no
more than concede abuse and argue that Susie might have been
attacked by a “deranged stranger” who entered the trailer and
inflicted the mortal punch – all to support the claim that trial
counsel’s

strategy

was

choice but to convict.

ridiculous

and

left

the

jury

with

no

See e.g., Appellee’s Brief at 19, 29-30;
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id. at 43 (citing a portion of trial counsel’s closing argument
and

arguing

that

“by

abandoning

the

fall

without

adequate

investigation, [counsel] were left with no theory at all, other
than perhaps a ‘deranged stranger’ beat Susie.”).

But this is

simply not the case at all.
Trial

counsel

did

reference

a

“deranged

stranger”

in

closing argument, but the reference was clearly offered to the
jury in the context of explaining reasonable doubt.

Actually,

trial counsel argued to the jury that while such a “deranged
stranger” was “a possible explanation,” it would likely “fall[]
within

what

the

District

Attorney’s

office

would

call

the

ingenuity of counsel, a fanciful doubt, not a reasonable doubt.”
J.A. 4065.

Trial counsel then proceeded, in accordance with the

planned strategy, to discuss the evidence of the family members
that had motive and opportunity to inflict the fatal injuries
that night, culminating in the argument that Bridges was the
most probable culprit and, at a minimum, enough of a suspect to
create such reasonable doubt.
Having considered the record and arguments of counsel, we
simply cannot say that the state court’s adjudication of the
performance prong of Strickland was an unreasonable one.
is

certainly

satisfied

a

“reasonable

Strickland’s

argument

deferential

that

standard”

[trial]
by

There
counsel

reviewing

the

medical evidence, consulting with Dr. Runyan, and pursuing an
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alternative-perpetrator,

Pg: 39 of 41

reasonable-doubt

defense

that

was

consistent with the factual investigation and the overwhelming
medical

evidence

that

Susie

was

a

victim

of

child

abuse.

Harrington, 131 S. Ct. at 788.
B.
Considering the second prong of Strickland, the state court
found

that

Burr’s

evidence

failed

to

show

a

reasonable

probability that but for trial counsel’s alleged unprofessional
errors, the result of the trial would have been different.

We

cannot say that the state court’s adjudication of the prejudice
prong was unreasonable either. 7
The

jury

rejected

a

defense

strategy

aimed

at

creating

reasonable doubt in their minds that Burr, as opposed to Susie’s
mother or the other persons with access to Susie, inflicted the
7

On appeal, Burr has argued that the state MAR court
applied the wrong prejudice standard, again necessitating de
novo review of the claim.
In support, however, Burr cites to
the state MAR court’s initial order that includes, in connection
with the prejudice prong of Strickland, the observation that
Burr had “proffer[ed] nothing demonstrating that his trial was
fundamentally unfair or that the results are unreliable as a
result of trial counsel’s performance,” J.A. 1443, and cites
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993), as the pertinent
authority in support. However, in the state MAR court’s second
decision, issued on remand from the North Carolina Supreme
Court,
the
state
MAR
court
explicitly
recognized
the
clarification that Williams v. Taylor, 529 U.S. 362, 391 (2000),
provided to the Strickland prejudice prong and the breadth of
Lockhart, and reconsidered and reissued its decision in light of
the Supreme Court’s clarification.
Burr’s representation that
the state court applied the wrong standard of review appears to
overlook this second order.

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mortal

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wound.

Indeed,

Pg: 40 of 41

Burr’s

post-conviction

counsel

argued

before us that competent trial counsel would have presented this
defense,

seemingly

ignoring

present this defense.
is

all

too

benefit

of

the

fact

that

trial

counsel

did

In any event, the stakes are high, and it

tempting

for

hindsight,

post-conviction
to

counsel,

second-guess

the

with

the

investigative

decisions of trial counsel and to now argue that Burr might have
fared better on the reasonable doubt argument if trial counsel
had presented the jury with the theory that Susie could have
sustained her lethal head injury when Scott tripped and fell
while carrying her.
This

argument,

however,

does

not

take

into

account

the

prosecution’s plans to refute any claim that Scott’s fall with
Susie

resulted

that

might

in

well

her

condition,

nor

weakened

the

have

prosecutorial
credible,

arguments

alternative

perpetrator defense that trial counsel did advance on Burr’s
behalf.

Indeed, it takes little effort for us to imagine a

converse case -- where post-conviction counsel would criticize
trial

counsel’s

decision

to

risk

credibility

by

advancing

a

speculative osteogenesis imperfecta/accidental death theory that
would
direct

blame

Susie’s

contradiction

injuries
to

upon

the

her

opinions

8-year-old
of

the

brother

in

physicians,

pediatric specialists and child abuse experts who treated and
evaluated her.

We pass no judgment on the merits of such a
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hypothetical Sixth Amendment claim, of course, but it highlights
why such double-deference is due to state courts that adjudicate
Strickland claims.
cast

doubt

precisely

on

a

what

Harrington,
omitted).

“Reliance on the harsh light of hindsight to
trial

that

Strickland

131

S.

Ct.

took
and

at

place
AEDPA

789

[20]

years

seek

(internal

to

ago

is

prevent.”

quotation

marks

It not our role to conduct such an “intrusive post-

trial inquiry” into the defense of this crime, id. at 788, or to
second-guess

the

“state

proceedings

[that]

are

the

central

process, not just a preliminary step for a later federal habeas
proceeding,”
assistance

id.
of

disagreement”

at

787.

counsel
among

At

a

claim

jurists,

minimum,

lends
id.

Burr’s

itself

at

787,

to
and

ineffective
“fairminded
the

double

deference due to the actions of trial counsel and the decisions
of the state courts that evaluate them compel denial of federal
habeas relief.

V.
For

the

reasons

set

forth

above,

the

judgment

of

the

district court is reversed.
REVERSED

41