Call v. Polk (454 F. Supp. 2d 475, 2006)

MEMORANDUM OF OPINION

THORNBURG, District Judge.

THIS MATTER is before the Court on the Petitioner’s motion pursuant to 28 U.S.C. § 2254 and various other motions, to which responses have been filed.

I. STANDARD OF REVIEW

Title 28 U.S.C. § 2254 provides in pertinent part:

(a) [A] district court shall entertain an application for a writ of habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of’the United States.

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to' any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—

(A) the claim relies on—•

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

(i) The ineffectiveness or incompetence of counsel during ... State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

28 U.S.C. § 2254 (footnotes added). The parties agree that the Petitioner has exhausted all available remedies in state court.

II. PROCEDURAL HISTORY

On October 9, 1995, the Petitioner was indicted and charged with first-degree murder; the indictment was superseded on March 18, 1996, to add charges of robbery with a dangerous weapon, first-degree kidnaping, and assault with a deadly weapon with intent to kill. Volume I, attached to Respondent’s Answer to Petition for a Writ of Habeas Corpus, filed April II, 2005, at Tab 1, pp. 32-33. His trial began on July 15, 1996, and on July 19, 1996, the jury found the Petitioner guilty of first degree murder on the basis of premeditation and deliberation and under the felony murder rule. Id., at 104. The jury also found him guilty of robbery with a dangerous weapon, first degree kidnap-ing and assault with a deadly weapon with intent to kill inflicting serious injury. Id., at 105. A separate sentencing hearing was held after which the jury recommended a sentence of death. Id., at 109-116. The trial court sentenced the Petitioner to death on July 23, 1996. Id., at 117. The Petitioner moved to by-pass a review of his case by the North Carolina Court of Appeals and on December 31, 1998, the North Carolina Supreme Court affirmed the Petitioner’s convictions but vacated his sentence of death and remanded for a new sentencing hearing. State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998).

On May 17, 1999, the Petitioner’s new sentencing hearing began. Volume II, attached to Respondent’s Answer, at Tab 5, p. 1. On May 21, 1999, the jury again found that a sentence of death was appropriate. Id., at 54-61. On that same date, the presiding judge sentenced the Petitioner to a sentence of death. Id., at 64-65. The Petitioner appealed and the North Carolina Supreme Court affirmed his sentence of death on May 4, 2001. State v. Call, 353 N.C. 400, 545 S.E.2d 190 (2001).

The Petitioner’s first motion for appropriate relief was filed on June 25, 2002. Vol. II, supra, at Tab 9. On June 17, 2003, Senior Resident Superior Court Judge Michael E. Helms denied that motion. Vol. III, attached to Respondent’s Answer, at Tab 15. The Petitioner’s petition to .the North Carolina Supreme Court for a writ of certiorari to review that decision was denied on November 6, 2003. State v. Call, 357 N.C. 579, 589 S.E.2d 130 (2003).

On March 10, 2004, the Petitioner filed a second motion for appropriate relief based on the Supreme Court’s decision of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Vol. III, supra, at Tab 19. On May 17, 2004, Judge Helms denied this motion as well. Id., at Tab 21. The Petitioner’s petition for a unit of certiorari for review of that decision was denied by the North Carolina Supreme Court on October 6, 2004. State v. Call, 359 N.C. 71, 604 S.E.2d 916 (2004). On November 5, 2004, the Petitioner filed his § 2254 petition in this court.

III. STATEMENT OF FACTS

At around 9:30 p.m., on August 24, 1995, the Petitioner visited Macedonio Hernandez Gervacio (Macedonio) at the mobile home which he shared with his nephew, Gabriel Gervacio. Call, 349 N.C. at 394, 508 S.E.2d at 503. Gabriel testified during the trial that the Petitioner, whom he knew from work, came alone that night. Transcript of Pretrial Motions and Trial Proceedings, Vol. II, at 95-96. The Petitioner told Macedonio that he would pay him $25 if he helped to move some things. Call, supra. Macedonio told his nephew he would “be right back.” Trial Transcript, supra, at 97; Call, 353 N.C. at 406, 545 S.E.2d at 195. Macedonio left with the Petitioner in his truck; however, instead of going to move furniture, the Petitioner drove to a cornfield for the purpose of robbing Macedonio. Call, 349 N.C. at 394, 508 S.E.2d at 503. The Petitioner beat Macedonio with a shovel handle and a tire iron, tied his right foot up around his head with a piece of yellow rope and tied his hands behind his back. Id.

At approximately 11:00 p.m., Gabriel heard a knock on the door of the mobile home and thinking it was his uncle, he opened the door. Trial Transcript, supra, at 100; Call, 353 N.C. at 406, 545 S.E.2d at 195. The Petitioner offered Gabriel $20 to help him move a refrigerator, an offer which Gabriel accepted. Id.; Trial Transcript, supra, at 101. As his uncle had done, Gabriel got into the truck with the Petitioner who took him to a cornfield. Call, supra. When the Petitioner stopped the truck, he lured Gabriel out of the truck by saying it was stuck. Id. As Gabriel began to push the bumper of the pickup, the Petitioner picked up an aluminum bat and after pretending to use it to lift the tire, struck Gabriel on the head. Id.; Trial Transcript, supra, at 101-09. Gabriel, however, was able to run away to the edge of a nearby river. Id.; Call, supra. Although the Petitioner briefly followed Gabriel, he returned to the pickup and left. Id. Gabriel then ran into the cornfield where he hid all night. Id.; Trial Transcript, supra, at 110. The next morning, Gabriel was able to swim across the river and began to seek assistance from local residents. Id. At the first house he visited, a child came out the door and Gabriel asked if they had a telephone. Id., at 111. The child answered that they did not, so he went to another house. Id. This time a woman answered the door and made a telephone call resulting in the arrival of her son who gave Gabriel a ride back home. Id., at 112. When a friend of Gabriel’s who spoke English arrived at his trailer, the two of them went to the owner of the trailer park, David Shatley, and the friend translated for Gabriel and told Shat-ley what had happened. Id., at 113; Call, supra. Law enforcement officers were called and Gabriel led them to the cornfield where he had been attacked. Id. The authorities found the body of Macedonio in the same field. Id. Among the evidence found at the scene was Maeedonio’s baseball cap, his shirt, and a broken stick similar to a shovel handle. Id., at 407, 545 S.E.2d at 195.

Gabriel identified the Petitioner as his assailant and the authorities immediately began looking for him. Id. He was not found at his residence but he was located in a motel room in Monroe, North Carolina. Id. A search of his truck disclosed a bag of clothes and a steel rod which had hair and blood embedded in it. Id.

On August 28, 1995, Agent Steve Cabe of the North Carolina State Bureau of Investigation (SBI) interviewed Alan Var-den, a friend of the Petitioner. Id. Varden also testified during the Petitioner’s trial. Trial Transcript, supra, at 172. Varden stated that the Petitioner had discussed robbing Macedonio on numerous occasions and tried to enlist Varden in the plan. Id., 172-74; Call, supra. Varden testified the Petitioner knew that Macedonio was saving money for an automobile and carried a large amount of cash. Id. On one occasion, the Petitioner showed Varden a shovel handle which he said he could use to “whack” the victim in the head. Id.; Trial Transcript, supra, at 179. On another occasion, the Petitioner showed Varden the cornfield which he explained was desolate and a good place to rob the victim and dispose of his body. Id., at 180; Call, 353 N.C. at 407, 545 S.E.2d at 196. The Petitioner also offered to share the money with Varden if he would help to “take care” of Gabriel, who was much larger than the Petitioner. Id. Varden told the SBI that he refused to be a part of this scheme. Id.

Varden also told the agent that at about 8:00 p.m., on the day of the murder, the Petitioner told Varden that he was going to help Shatley move some furniture out of a mobile home. Id.; Trial Transcript, supra, at 183. The Petitioner asked Varden if he wanted to help but Varden refused to go. Call, supra. Varden did, however, give the Petitioner a length of yellow plastic rope to use to tie down the furniture. Id.

According to Varden, at about 10:30 p.m., the Petitioner returned home where Varden and the Petitioner’s wife, Jennie, were playing Nintendo. Call, at 408, 545 S.E.2d at 196; Trial Transcript, supra, at 186. The Petitioner asked Varden to help him move a dresser and the two left, each in their own trucks. Id. On the way to their destination, they stopped at a church to use the restroom; and, while there, the Petitioner handed Varden a one hundred dollar bill stating it was payment for the camper shell he had gotten from Varden. Id., at 187-88; Call, supra. They next stopped at a gas station where the Petitioner gave Varden a ten dollar bill and another one hundred dollar bill. Id.; Trial Transcript, supra, at 189. When they arrived at Varden’s mobile home, the Petitioner confessed to Varden that he had hit Macedonio over the head with a shovel handle which had broken and also with a tire iron. Id. The Petitioner also described tying up the victim and stated that he needed to go back to see if Macedonio was still alive and also that he needed to deal with Gabriel, who had seen him. Id., at 189-91; Call supra. The Petitioner asked Varden to go with him, noting that the muffler on Varden’s truck was quieter. Id.; Trial Transcript, supra, at 193. Varden refused but the Petitioner took a baseball bat out of Varden’s truck and put it in his own truck. Id.; at 193-95; Call, supra. The Petitioner left and Varden went back to the Petitioner’s mobile home. Id.

About thirty minutes later, Varden testified that the Petitioner came speeding down the driveway, ran into his home and exclaimed that he had “fucked up” because although he hit Gabriel with the bat, Gabriel had gotten away. Id.; Trial Transcript, supra, at 195-98. The Petitioner gathered up his clothes and the three of them went to Varden’s trailer where the Petitioner showered and shaved off his mustache. Call, supra. The Petitioner returned the bat to Varden who wiped it off. Id.; Call, 349 N.C. at 395, 508 S.E.2d at 505. Varden returned to the Petitioner’s trailer to get the Petitioner’s wallet and pants which he took back to the Petitioner. Call, 353 N.C. at 408, 545 S.E.2d at 196. The Petitioner wrote a note, subsequently found by authorities, which read: “I Eric Call hereby declare that my wife Virginia Cox Call had absolutely no knowledge of what might have taken place. Signed Eric L. Call.” Id. Sometime after midnight, the Petitioner left in his truck and subsequently checked into a motel in Monroe, North Carolina, under the name of Richard Finley. Call, 349 N.C. at 395, 508 S.E.2d at 505.

IV. DISCUSSION

The Petitioner has raised a plethora of issues which are addressed seriatim.

A. In connection with the Petitioner’s post-conviction motions in State court (the “MAR” motions), an evi-dentiary hearing should have been granted.

The Petitioner argues that he requested an evidentiary hearing in connection with each of his two MAR’s, and that on each occasion his request was denied. A hearing, he claims, would have allowed him to present disputed facts, to examine State officials involved with the decision of whether or not to charge Varden, to examine the same officials concerning “possible Brady materials,” to obtain sworn testimony from trial counsel, and to obtain sworn testimony from the witnesses.

Motions for appropriate relief in North Carolina are controlled by the statutory provisions of Article 89, N.C. GemStat. §§ 15A-1411, et seq. Section 15A-1420(c) provides in pertinent part:

(1) Any party is entitled to a hearing on questions of law or fact arising from the motion and any supporting or opposing information presented unless the court determines that the motion is without merit. The court must determine, on the basis of these materials and the requirements of this subsection, whether an evidentiary hearing is required to resolve questions of fact.

(3) The court must determine the motion without an evidentiary hearing when the motion and supporting and opposing information present only questions of law.

(7) The court must rule upon the motion and enter its order accordingly. When the motion is based upon an asserted violation of the rights of the defendant under the Constitution or laws or treaties of the United States, the court must make and enter conclusions of law and a ' statement of the reasons for its determination to the extent required, when taken with other records and transcripts in the case, to indicate whether the defendant has had a full and fair hearing on the merits of the grounds so asserted.

N.C. Gen.Stat. § 15A-1420(e).

In ruling on the first MAR, and the numerous amendments thereto, the presiding judge noted:

An evidentiary hearing on Call’s motion is not required because the claims presented are without merit, are not supported by the law or the evidence of record and can be decided based on the law and the record.

Vol. Ill, attached to Respondent’s Answer, at Tab 15, pp. 43-44. The same finding was made by the presiding judge in connection with the second motion for appropriate relief. Id., at Tab 21, pp. 11-12. That motion was based on an issue of law, i.e., whether Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), applied to the Petitioner’s case. Id., at Tab 19, pp. 1-2 (Counsel claimed in that motion that the “Petitioner was unable to raise this ground before as the opinion overrules prior Supreme Court case law and failure to consider the defendant’s claim will result in a fundamental miscarriage of justice.”). As a result, no hearing was warranted in connection with this motion because it was based on an issue of law. N.C. Gen.Stat. § 15A-1420(c)(3) (“The court must determine the motion without an evidentiary hearing when the motion and supporting and opposing information present only questions of law.”).

Subsection (c)(7) [of § 15A-1420] mandates that “the court must make and enter conclusions of law and a statement of the reasons for its determination to the extent required, when taken with other records and transcripts in the case, to indicate whether the defendant has had a full and fair hearing on the merits of the grounds so asserted.” However, this subsection of the statute must be read in pari materia with the other provisions of the same statute. Therefore, when a motion for appropriate relief presents only questions of law, including questions of constitutional law, the trial court must determine the motion without an evi-dentiary hearing. Further, if the trial court can determine from the motion and any supporting or opposing information presented that the motion is without merit, it may deny the motion without any hearing either on questions of fact or questions of law, including constitutional questions. Therefore, it does not automatically follow that, because defendant asserted violations of his rights under the Constitution of the United States, he was entitled to present evidence or to a hearing on questions of fact or law. For example, when a motion for appropriate relief presents only a question of constitutional law and it is clear to the trial court that the defendant is not entitled to prevail, “the motion is without merit” within the meaning of subsection (c)(1) and may be dismissed by the trial court without any hearing. Likewise, where facts are in dispute but the trial court can determine that the defendant is entitled to no relief even upon the facts as asserted by him, the trial court may determine that the motion “is without merit” within the meaning of subsection (c)(1) and deny it without any hearing on questions of law or fact.

State v. McHone, 348 N.C. 254, 257-58, 499 S.E.2d 761, 762-63 (1998) (internal citations omitted).

The Petitioner claims that during an evidentiary hearing, he would have examined the State officials involved with the decision of whether to charge Varden. That examination, he claims, would have provided him with Brady material. In ruling on the first motion for appropriate relief, the State court judge discussed each such contention by the Petitioner and explained why each was without merit. Vol. Ill, supra, at Tab 15, pp. 7-11. In short, Varden’s role in the crime was brought out both on direct and cross examination. Moreover, the issue of Brady material was raised during pretrial motions, argued and rejected by the trial court. Trial Transcript, Vol. I, at 37-61. These rulings were affirmed on appeal. Call, 349 N.C. at 398-401, 508 S.E.2d, at 507-08. Likewise, evidence about Varden’s polygraph examination was excluded based on the motion of the Petitioner’s trial counsel. Trial Transcript, supra, at 38. The Petitioner also claims that if he had been able to examine witnesses and trial counsel during an evidentiary hearing, exculpatory evidence would have been uncovered. The State court addressed these claims as well in the decision on the MAR motion. Vol. III, supra, at Tab 15, p. 10 (“Additional evidence is not needed to determine whether, on the plain face of the record, trial counsel were ineffective based on a failure to follow through with the defense goals outlined in opening statement.”); id., at p. 11 (“Trial counsel wisely advised Call not to testify, even though it kept his [clean] record from coming before the jury, because cross-examination regarding Call’s actions that night of the murder, his change of appearance, change of identity, flight and identification by Gabriel Gonzalez would have been more prejudicial than the benefit gained by presentation of his record.”); id., at p. 13 (“Even if Jeremiah Miller were permitted to testify that Var-den and Miller’s brother Jeff went to Georgia to buy three or four hundred dollars worth of acid after the murder, there is no evidence that the money was provided by Varden rather than Miller’s brother Jeff.”); id., at pp. 14-15 (The failure of counsel at sentencing to bring out purported mitigating factors of domination by Varden and duress was apparent from the record and could have raised on direct appeal, but was not. Moreover, the Petitioner denied his guilt throughout trial and sentencing.); accord, id., at pp. 16-33.

In the conclusions of law, the State court judge addressed the contentions of the Petitioner and found that most were either procedurally barred for failure to have been raised on appeal or because those grounds had in fact been raised and rejected on direct appeal. Id., at pp. 33-43. Independently of the procedural bars, the judge addressed the substantive legal issues as well. Id. In short, the judge determined that even if the Petitioner’s factual disputes were considered, he still was not able to raise meritorious issues and, therefore, no hearing was required. McHone, supra; McHone v. Polk, 392 F.3d 691, 697 (4th Cir.2004), cert. denied, — U.S. -, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005).

The determination by the MAR court that the Petitioner was not entitled to relief constitutes an adjudication on the merits of those claims. Id. As a result, this Court’s review is limited to whether the State court’s determination “ ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.’ ” Id. (quoting Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir.2000)). It did not; no hearing was required and no constitutional error occurred.

The Petitioner also accuses the State court of having abdicated its role as scribe by having the State submit a proposed order for signature. The Fourth Circuit has addressed this argument.

It is true that, with regard to opinions and orders rendered by the district courts within this circuit, “[t]he adoption of one party’s proposed findings and conclusions is a practice with which [the Circuit] ha[s] expressed disapproval on a number of occasions.” Nonetheless, the disposition of a petitioner’s constitutional claims in such a manner is unquestionably an “adjudication” by the state court. If that court addresses the merits of the petitioner’s claim, then § 2254(d) must be applied.

Young v. Catoe, 205 F.3d 750, 755 n. 2 (4th Cir.2000) (quoting Shaw v. Martin, 733 F.2d 304, 309 n. 7 (4th Cir.1984)); accord, Bell v. Ozmint, 332 F.3d 229, 233-34 (4th Cir.2003) (“Although we do not applaud this practice, circuit precedent dictates that it does not provide any basis for applying de novo review.”). In short, simply because a State court requests one party to draft the proposed findings of fact and conclusions of law does not mean that the judge never read the proposed decision or failed to apply his own legal analysis thereto. In fact, the State court judge placed his signature on the decision. Nor is this Court in a position to impose on state judiciary a proscription from such a practice which has, after all, been in place for well over 50 years.

Moreover, there is another compelling reason to deny any relief on this ground. “The state court held that there was no need for an evidentiary hearing because the issue could be resolved without a hearing and, ... federal habeas corpus is not an appropriate vehicle to address claims that a state has, in some way, failed to provide an adequate post conviction procedure.” Kandies v. Lee, 252 F.Supp.2d 252, 260 (M.D.N.C.2003), aff'd, 385 F.3d 457 (4th Cir.2004), vacated on other grounds, — U.S. -, 125 S.Ct. 2974, 162 L.Ed.2d 884 (2005) (citing Murray v. Giarratano, 492 U.S. 1, 7, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989)); Sellers v. Ward, 135 F.3d 1333 (10th Cir.1998) (attempt by a habeas petitioner to challenge a state’s post conviction procedures fails to state a federal constitutional claim cognizable in federal habeas); Phillips v. Ferguson, 182 F.3d 769, 772-73 (10th Cir.1999) (challenges to the constitutionality of state post-conviction procedures are not cognizable as independent habeas claims); see also, United States v. Dago, 441 F.3d 1238, 1248 (10th Cir.2006) (citing Phillips, supra).

B. The MAR Court rendered a decision that was based on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

The Petitioner sets forth numerous incidences of unreasonable determinations of facts by the first MAR court and two such incidents by the second MAR court. Each incident constitutes nothing more than disagreement with the court’s factual determinations. Factual determinations of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); Lenz v. Washington, 444 F.3d 295, 300 (4th Cir.), cert. denied, — U.S. -, 127 S.Ct. 10, 165 L.Ed.2d 992, 75 U.S.L.W. 3033 (2006). This presumption applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir.2000). The Petitioner has not rebutted this presumption by clear and convincing evidence. Id. Instead, he offers nothing more in this section than disagreement. Orman v. Cain, 228 F.3d 616, 619 (5th Cir.2000) (“It follows from this that mere disagreement with the state court is not enough.”); Weaver v. Bowersox, 241 F.3d 1024, 1030 (8th Cir.2001) (Even erroneous fact-finding by the state court will not justify granting a writ if that court acted reasonably.).

C. The Petitioner’s sentence is unconstitutional due to the withholding of exculpatory material.

The Petitioner argues that there “was simply no evidence which excluded Varden from being present at the murder scene or striking [Macedonio], other than his own self-serving statements. Physical evidence that the investigators should have known would have implicated Varden was never sought.” Petition, at 23. In other words, the argument is not that the State failed to turn over exculpatory evidence in its possession, but that the State failed to develop evidence that Varden was the actual murderer instead of the Petitioner.

“To establish a Brady claim, a defendant must demonstrate not only the existence of evidence favorable to the defendant that was suppressed by the government, but also a ‘reasonable probability’ that the result of the proceedings would have been' different had the evidence been disclosed.” Swisher v. True, 325 F.3d 225, 233 (4th Cir.2003) (emphasis added). A reasonable probability is one that “undermine[s] confidence in the outcome” of the case. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (quotations omitted); accord, Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (“The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”). Brady “ ‘does not place any burden upon the Government to conduct a defendant’s investigation or assist in the presentation of the defense’s case.’ ” East v. Scott, 55 F.3d 996, 1004 (5th Cir.1995) (quoting United States v. Marrero, 904 F.2d 251, 261 (5th Cir.1990)). Thus, the Petitioner’s argument that the State should have developed exculpatory evidence on his behalf showing that Var-den was the murderer is incorrect.

Moreover, the Fourth Circuit has also rejected a Brady claim in a case in which the defendant alleged that information provided in an untimely manner would have allowed him to show that other individuals were the actual culprits. United States v. Walker, 105 F.3d 650 (table), 1997 WL 5772 (4th Cir.1997). In Walker, the Circuit noted that the material was turned over to the defendant during trial but he failed to seek a continuance; thus, there was no Brady violation. The Circuit also noted a case from the District of Columbia Circuit in which the defendant claimed that the failure to disclose certain documents before trial prevented the development of hypotheses concerning other individuals who might have committed the crime. United States v. Henson, 486 F.2d 1292 (D.C.Cir.1973). In Henson, the District of Columbia Circuit concluded that defense counsel’s failure to request a continuance, ability to call the other suspects, and ability to argue to the jury in closing that six other persons could have committed the murder with which the defendant was charged indicated that the delayed disclosure did not produce a prejudicial error. Id., at 1302 n. 10. The same reasoning applies here. Trial counsel effectively cross-examined Varden as to his motives and conduct on the night in question.

Nonetheless, the Petitioner argues that the following evidence was withheld in violation of Brady: (1) the fact that the bat had been in Varden’s truck; (2) the fact that Varden had yellow rope in his truck; (3) the fact that Varden had previously been at the site where the murder occurred; (4) the fact that the State failed to follow up on whether the tire tracks at the scene matched those of Varden’s truck; (5) the fact that Varden was not placed under surveillance to see whether he would spend a lot of money; and (6) the fact that Varden was asked to turn over a pen in his trailer.

“Nondisclosure ... does not denote that no exculpatory evidence exists, but that the government possesses no exculpatory evidence that would be unavailable to a reasonably diligent defendant.” Barnes v. Thompson, 58 F.3d 971, 975 n. 4 (4th Cir.1995); accord, United States v. Diaz, 922 F.2d 998, 1007 (2d Cir.1990) (“[T]here is no improper suppression within the meaning of Brady where the facts are already known by the defendant.”). “Certainly, then, information that is not merely available to the defendant but is actually known by the defendant would fall outside of the Brady rule.” Fullwood v. Lee, 290 F.3d 663, 686 (4th Cir.2002). The Petitioner was fully aware of each of the above contentions which he now claims constituted Brady violations. He knew that he took the bat from Varden’s truck and that Varden provided him with a length of yellow rope. The Petitioner also knew that he had used a pen at Varden’s trailer to write the note exonerating his wife. The Petitioner’s attorney also knew that the authorities obtained a court order for a handwriting exemplar from the Petitioner. The Petitioner knew that Varden had previously been at the scene of the crime because he took Varden there. United States v. Roane, 378 F.3d 382, 402 (4th Cir.2004), cert. denied, — U.S. -, 126 S.Ct. 38, 163 L.Ed.2d 43 (2005) (“Obviously, Tipton knew who he was with on the evening of the Talley murder—he had no need for the Government to provide him with such information. Thus, no Brady violation has been shown[.]”). Likewise, the Petitioner was fully capable of seeking a court order allowing him to compare the tire tracks to those of Varden’s truck. And, he could have sought fees to hire a private investigator to ascertain whether Varden had spent unusually large sums in the days and weeks following the murder. Id. (“ ‘[W]here the exculpatory information is not only available to the defendant but also lies in a source where a reasonable defendant would have looked, a defendant is not entitled to the benefit of the Brady doctrine.’ ” (quoting United States v. Wilson, 901 F.2d 378, 381 (4th Cir.1990))).

Petitioner’s second argument related to Varden is that the State did not disclose that he had “failed” a polygraph. It is first noted that, in contrast to the position now taken, the Petitioner’s attorney moved the trial court to exclude any polygraph evidence. Trial Transcript, Vol. I, at 37-38. Secondly, the SBI agent administering the test did not proclaim that Varden had “failed” the polygraph. In fact, he opined that “SA J.L. Jones was unable to reach a conclusive opinion as to the truthfulness of Mr. Varden. Agent Jones and Agent Cabe discussed the high chances of this examination being inconclusive due to statements made by Mr. Varden and his knowledge of the events in this investigation.” Appendix A, SBI Reports of Polygraph Examination, attached to Petition. Thus, the characterization that Varden “failed” the polygraph is incorrect.

Counsel also argue that the results of this “failed” polygraph test would have been admissible in the penalty phase of the Petitioner’s case. The Petitioner’s attorneys cite United States v. Moussaoui, 382 F.3d 453 (4th Cir.2004), for the proposition that polygraph evidence is admissible during the penalty phase of capital cases due to more relaxed evidentiary standards. That case does not deal with such an issue and no such holding is contained within the opinion.

Moreover, in both the State of North Carolina and the Fourth Circuit there is a per se ban of polygraph evidence. United States v. Prince-Oyibo, 320 F.3d 494, 497-98 (4th Cir.2003); State v. Brewington, 352 N.C. 489, 505, 532 S.E.2d 496, 506 (2000) (“ ‘[I]n North Carolina, polygraph evidence is no longer admissible in any trial. This is so even though the parties stipulate to its admissibility.’ ” (quoting State v. Grier, 307 N.C. 628, 645, 300 S.E.2d 351, 361 (1983))).

Unfortunately for [the Petitioner], his contention on this point is foreclosed by [the Circuit’s] decision in Goins v. Angelone, 226 F.3d 312 (4th Cir.2000), abrogated on other grounds by Bell v. Jarvis, 236 F.3d 149 (4th Cir.2000). In that case, Goins asserted that the prosecutor had committed a Brady violation by failing to disclose the results of a polygraph test taken by Barry Scott, who, according to Goins, had committed the murders with which Goins was charged. In disposing of Goins’s Brady claim, we first concluded that because the record did not reveal which questions Scott had answered untruthfully, there was no basis on which to conclude that the polygraph results were favorable to Goins. We also ruled, however, that Goins could not demonstrate that the polygraph results were “material” because polygraph results were inadmissible for any purpose under Virginia law. As relevant here, Goins asserted that the Constitution mandated the admissibility of polygraph results during the sentencing phase of his capital trial. We disposed of this contention in a footnote: “[a]s the district court noted, ... ‘[U]nder current controlling precedent, the Constitution does not mandate admission of polygraph results in capital sentencing proceedings.’ ”

United States v. Fulks, 454 F.3d 410, 434 (4th Cir.2006) (quoting Goins, supra, at 326 n. 7 (quoting Goins v. Angelone, 52 F.Supp.2d 638, 675 (E.D.Va.1999))) (other internal citations omitted). This holding, which reiterates the earlier decision of the Goins Court in 2000, clearly refutes the Petitioner’s claim on this issue. See, also,

Wood v. Bartholomew, 516 U.S. 1, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (no Brady violation where the prosecutor did not disclose the fact that a critical witness for the state failed a polygraph). Moreover, in North Carolina, “a polygraph does not fall within the category of ‘physical or mental examinations’ contemplated under N.C.G.S. § 15A-903(e).” Brewington, 352 N.C. at 506, 532 S.E.2d at 506. Thus, polygraph results were not discoverable. Id.

While the Goins and Fulks decisions are controlling, there is another reason to reject this argument. Trial counsel, Anthony Lynch, who is now deceased, provided an affidavit in which he averred:

Had we known that the State had polygraphed Varden, that he had not passed the polygraph and that handwriting exemplars were taken, our trial preparations would have been significantly different and our trial strategy would have been significantly more effective.

Appendix E, Affidavit of Anthony Lynch, attached to Petition, ¶ 8. However, Mr. Lynch failed to state in what manner trial preparations would have differed. Gregory v. Polk, 2006 WL 1877262, *5 (4th Cir.2006) (citing United States v. Agurs, 427 U.S. 97, 113 n. 20, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)) (allegation that failure to turn over exculpatory evidence prejudiced the petitioner by affecting his trial strategy did not make out a Brady claim). “Mere speculation that some exculpatory material may have been withheld is unlikely to establish good cause for a discovery request on collateral review. Nor ... should such suspicion suffice to impose a duty on counsel to advance a claim for which they have no evidentiary support.” Strickler v. Greene, 527 U.S. 263, 286, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Walton v. Johnson, 440 F.3d 160, 178 (4th Cir.), cert. denied, - U.S. -, 126 S.Ct. 2377, 165 L.Ed.2d 298 (2006). Mr. Lynch was an entirely ethical attorney, therefore, the fact that-he did not pursue allegedly withheld exculpatory evidence shows that the arguments raised now are merely speculation. Moreover, Mr. Lynch acknowledged that the Petitioner “always denied to me that he had murdered Macedo-nio Hernadez.” Lynch Affidavit, supra, ¶ 11. And, - during the trial, the Petitioner’s attorney mounted a vigorous cross-examination of Varden which was designed to leave the distinct impression with the jury that Varden was actually the responsible party. Trial Transcript, Vol. II, at 238 (Q: “Did the fact that the ball bat came from you and ... a piece of rope came from you cause that to weigh heavily on your mind?” A: ‘Yes.”).

Next, the Petitioner claims that the State had a de facto immunity agreement with Varden which allowed the prosecutor the luxury of not providing the defense with copies of Varden’s statements to the authorities. However, trial counsel admits that he had access to those statements and an opportunity to read them; he was just not allowed to copy them. Lynch Affidavit, supra, ¶ 5. Nor does Mr. Lynch claim that he was prevented from making notes from the statements that he read. Id. Whether or not Varden had an agreement with the State was exhaustively explored both by defense counsel and the prosecutor during the trial testimony. In what manner the outcome of the trial would have been different had Mr. Lynch been able to copy the statements, as opposed to reading them and taking notes, is not explained.

During the cross-examination of Varden, defense counsel elicited the following exchange:

Q: You gave three statements to law enforcement officers, is that correct?

A: Correct.

Q: Did you have any discussions with the prosecutor’s offfic[e] as to whether you might be prosecuted yourself in this case?

(No answer).

Q: [H]ave you had any discussions with the prosecutor’s office as to whether you, yourself, might be prosecuted?

A: Yes, I have.

Q: Have you received a grant of immunity from the prosecutors in this case?

A: No, I have not.

Q: Have you made any deal with the prosecutors?

A: No, I have not.

Q: Well, did they just mention[] you might be prosecuted and didn’t say anything more about it?

A: Yes.

Q: Did that potential for being prosecuted weigh heavily on your mind?

A: Yes, it does.

Trial Transcript, Vol. II, at 212, 237-38. On re-direct examination, the prosecutor asked Varden:

Q: Mr. Varden, you’ve talked to, to me about the issue of, of immunity, haven’t you?

A: Yes.

Q: What promises, if any, have you been made by the D.A.’s office?

A: None, whatsoever.

Id., at 238-39. “ ‘A de facto grant of immunity arises when there is an after-the-fact determination based on a promise by a person with apparent authority to make it that the individual will not be prosecuted.’ ” United States v. McKeel, 2005 WL 165897, *3 (N.M.Ct.Crim.App.2005), aff'd, 63 M.J. 81 (U.S. Armed Forces), petition for cert. denied, 75 U.S.L.W. 3034, - U.S. -, 127 S.Ct. 554, — L.Ed.2d -, 2006 WL 1981580 (Jul. 13, 2006) (quoting United States v. Jones, 52 M.J. 60, 65 (U.S. Armed Forces 1999)). Here, there was no agreement or promise. Varden clearly testified hoping that he would not be prosecuted, but he did so without the benefit of any agreement.

Moreover, there was nothing more than the Petitioner’s innuendo to support the theory that the State had an immunity agreement with Varden. Amunga v. Jones, 51 Fed.Appx. 532, 542 n. 9 (6th Cir.2002) (“Malone could have been charged as an accessory. Amunga essentially equates the prosecutor’s failure to bring any charges against Malone with a promise of leniency in exchange for his testimony.... The record in this case does not suggest that Malone had a particular deal when he testified at Amunga’s trial.”). The state is under no duty to turn over that which does not exist except upon the speculation of the defendant. Medellin v. Dretke, 371 F.3d 270, 281 (5th Cir.2004). The State court found the record established that Varden had no immunity agreement with the State and that the Petitioner had failed to show any evidence to support the existence of a de facto agreement. This Court cannot find that this is an unreasonable determination of the facts in light of the evidence.

E. The Petitioner received ineffective assistance of counsel at the trial, appellate and re-sentencing levels.

The Supreme Court has stated the test for determining whether a defendant received adequate assistance of counsel.

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Unless a defendant makes both showings, his claim of ineffective assistance of counsel must fail. Id. Thus, a defendant must show counsel’s performance fell below objective standards of reasonableness, and, that but for his conduct, there was a reasonable probability the result of the trial would have been different. Id., at 688, 104 S.Ct. 2052. If the defendant fails to make the first showing, there is no reason to reach the second issue. Id.

The Petitioner’s first argument is that defense counsel was ineffective by forecasting certain evidence during the opening statement which he never delivered. That evidence, he claims, includes the following: (1) that Varden, the Petitioner, and the Petitioner’s wife, Jenny, were all friends; (2) that Varden and the Petitioner’s wife had an affair after his arrest which ended when Varden was physically abusive to her; (3) that there was violence between Gabriel and his uncle; and (4) that the police gave up their investigation of Varden prematurely.

Contrary to the Petitioner’s claims, the evidence produced during the trial included the following:

1. During the direct examination of Var-den, it was elicited that Varden and the Petitioner’s wife worked together at Smokey Mountain Barbecue and became friends. Trial Transcript, Vol. II, at 169.

2. During Varden’s direct examination, it was elicited that the three of them, Var-den, Jenny Call (Jenny) and the Petitioner, spent “quite a bit of time” together. Id., at 170-71. '

3. During Varden’s direct examination, it was elicited that on the evening of the murder and after the Petitioner fled the area, Varden and the Petitioner’s wife, Jenny, stayed together at Varden’s home and subsequently moved in together, living in an apartment for about five weeks. Id., at 205.

4. During Varden’s cross-examination, it was elicited that Varden wiped the bat clean in order to get rid of his own fingerprints, an act which would also have removed the Petitioner’s fingerprints. Id., at 225. The point was made that by doing so, Varden had made it impossible to trace either his fingerprints or those of the Petitioner.

5. During his cross-examination, Varden admitted that it had been his idea to use a stun gun on the victim. Id., at 230.

6. During his cross-examination, Varden admitted that he began living with Jenny on the evening of the murder. Id., at 236-37. Through a series of questions, defense counsel attempted to show that Varden had been physically abusive to Jenny; however, an objection was lodged as to each question and the trial court sustained each objection. As a result, although defense counsel tried to elicit this evidence, the trial court would not allow the questions to be answered. Id. (“And, you stayed together until she filed the domestic violence act against you? ... [W]ere you a party to a civil lawsuit here in Ashe County in which Virginia Call was the Plaintiff and you were the Defendant [?] ... Did you assault her and cause nerve damage to her arm?”).

7.During the cross-examination of Gabriel, defense counsel attempted to elicit that Gabriel and his uncle did not get along and that the victim may have been a violent man who frequently loaned money to a number of people, any one of whom could have killed him. Id., at 121-22; 125 (“Your uncle was a very well liked young man[?]”; “Your uncle was not the type of person to spend his money on drugs and alcohol?”; “[F]rom time to time people borrowed money from your uncle?”; “[H]ow many times before in your life would you testify under oath to this jury that you’ve been taken out into a field and been assaulted by a baseball bat?”); 126 (“So this was an unusual event in your life[?]”). It was also brought out that despite the severity of Gabriel’s injury, he waited all day before reporting the assault to anyone and picked up both his paycheck and that of his uncle the day after the assault, implying that Gabriel himself was the culprit. Id., at 126-27. Counsel also attempted to show that on the evening of the murder, Gabriel did not actually see the Petitioner’s face. Id., at 130-31.

8., In an effort to show that law enforcement stopped their investigation of the case too soon to learn that Varden was involved and/or the actual murderer, trial counsel elicited the following evidence:

(a) Trooper Charles Olive of the North Carolina State Highway Patrol, was cross-examined about the discrepancy in his written report that Gabriel told him the bat was wooden versus Gabriel’s direct testimony that the bat was aluminum. Id., at 162-63. Counsel also questioned Trooper Olive about his written report in which he noted that Gabriel said the Petitioner asked Gabriel to get out of the truck due to engine trouble, not because the truck was stuck. Id., at 164. This series of questions attempted to show that the officer did not adequately investigate, thus resulting in factual discrepancies. In fact, defense counsel was suggesting that Trooper Olive recorded statements inconsistent with later testimony, thus showing that the officer was incompetent, Gabriel could have been lying, and/or that Varden was the actual murderer. Counsel also challenged whether the crime scene had been properly preserved by Trooper Olive. Id, at 165.

(b) Deputy Sheriff Steve Houck, who was a captain with the Ashe County Sheriffs Department, testified that he was with Trooper Olive and Gabriel on the night that Gabriel led law enforcement to the scene of his assault. Id, at 242. Captain Houck testified that he noticed tire tracks near the scene, two empty beer cans and a pack of cigarette rolling papers. Id, at 246, 252. Captain Ashe was responsible for the crime scene on the evening the victim’s body was found. Id, at 256. He was the individual who handled the shovel handle and preserved it as evidence for testing at the SBI laboratory for fingerprints, fibers, liquids, and tissue. Id, at 259-60. Trial counsel pointed out that the Petitioner voluntarily provided fingerprints which were not matched with any on the shovel handle. Id, at 261. No tissue or hair was found on the handle; and while a small amount of blood was found, it could not be determined whether it was human blood. Id Captain Ashe acknowledged that the victim had abrasions on his face consistent with having been dragged but also admitted that he did not photograph drag marks because he could not find evidence at the scene of dragging. Id, at 262. And, while admitting that . head wounds of the type suffered by the victim typically bleed profusely, he admitted that no testing was done for blood at or around the crime scene, despite the fact that Lu-minal could have been used to look for blood. Id, at 263. And, trial counsel tried repeatedly to show that the officers failed to investigate Varden: “In your experience, is it important in an investigation to correctly record what material witnesses say about the crime?” Id, at 265. “[D]id Alan Varden give statements to officers who work for you?” Id, at 266. “Do you agree with the statement that before you can solve the case, you have to have a suspect, and you have to have a certain amount of physical evidence?” Id The prosecutor objected to this line of questioning and his objections were sustained; however, counsel tried to show that Captain Ashe did not conduct an adequate investigation.

(c) SBI Agent Cabe was called to the crime scene for investigation and to take photographs. Id, at 280-81. He testified that he saw two different sets of tire impressions in the sandy soil near the victim’s body in an area of the crime scene which had been preserved prior to his arrival by being cordoned off with plastic tape. Id, at 289. He photographed this area and the tire impressions. Id, at 28990. Agent Cabe also photographed the tires on the Petitioner’s vehicle after it was impounded and he testified during the trial to his comparison of the tire impressions from the photographs taken at the scene and those taken of the Petitioner’s tires. Id, at 298-99. He testified that the dimensions of the tire impressions were “very close” to being the same. Id, at 301. Agent Cabe also testified that he did not use Luminal at the scene because it could possibly lead to a false reaction when used on soil. Id, at 302-03. And, he did not know if the Petitioner’s vehicle was processed for latent fingerprints. Id, at 313-14. Agent Cabe also testified that he took a statement from Varden. Id On cross-examination, trial counsel established that the tire impressions shown in the two different sets of photographs actually had a discrepancy of almost two inches. Id., at 327. Counsel also pointed out that by using sprays, the SBI could have obtained an exact impression of the tire tracks at the scene of the crime. Id., at 328, 330. In fact, Agent Cabe testified that he had himself used hair spray in the past; however, nothing was done at this crime scene other than photographing. Id., at 329. As a result, the SBI did not obtain the exact width and depth of the tire tread and did not get individual characteristics such as wear or cuts. Id., at 330. As for testing for the presence of blood, counsel noted that “Every day, in courtrooms all across this state, special agents and lab technicians are testifying about the use of lumi-nal?” Id., at 332. Counsel also pointed out that the perpetrator of a crime who might have stepped in blood at the scene would have carried that blood on his shoes into his vehicle; however, no testing was done in the Petitioner’s truck. Id., at 333. Like Captain Ashe, Agent Cabe did not read the autopsy report. Id., at- 334-5. He did not know if the victim had drag marks on his body. Id. And, he -did not locate any drag marks at the scene. Id. Counsel also pointed out that there were no paint chips from the truck on the bat which was found in the Petitioner’s truck; no fibers or hair were found in the truck which matched fiber or hair from the victim. Id., at 335-39. There also were no fingerprints found in the Petitioner’s truck which matched the victim. Id., at 340. Agent Cabe testified that there was rope in the back of the Petitioner’s truck which was compared with the rope found on the victim and which did not match. Id., at 343. This line of questioning was followed with questions showing that Varden had a great deal of knowledge about the crime, indicating that Varden could have-been the actual murderer. Id., at 344. SBI Agent J.S. Taub, whose expertise is the investigation of blood at crime scenes, also testified. During his cross-examination, he admitted that the use of Luminal in the Petitioner’s vehicle and at the crime scene could have uncovered additional evidence. Id., at 377-81.

Despite the argument of habeas counsel, trial counsel very adeptly showed that Varden, the Petitioner, and the Petitioner’s wife, Jenny, were all friends; that Varden and the Petitioner’s wife had an affair after his arrest which ended when Varden was physically abusive to her; that there could have been violence between Gabriel and his uncle; and that the investigating authorities failed to properly investigate the crime scene, the Petitioner’s truck or the possibility that Varden was the real murderer. The fact that the trial court did not admit some of the evidence is no fault of the trial attorneys and thus, cannot support a claim of ineffective assistance.

Moreover, contrary to the argument made by habeas counsel, the record shows that counsel tried valiantly to raise these issues before the jury. The fact remains that the jury did not believe that either Varden or Gabriel was the actual murderer. Based on the clear record of the trial, this Court, therefore, rejects the argument that counsel “abandoned” the theories advanced during opening statements.

Next, habeas counsel claim that no defense was offered for the Petitioner, thus showing that counsel failed to “deliver” the points made during opening argument. ¿tabeas counsel base this claim on the affidavits of trial counsel. While it is true that after the State rested its case, no defense witnesses were called and the Petitioner himself did not testify, that does not constitute abandoning the theories argued to the jury during opening statements. To the contrary, counsel vehemently argued each defense listed by effective cross-examination of the State’s witnesses.

In stark contrast to the strategical decisions made during the trial, counsel thereafter provided affidavits attesting as follows:

After the State rested in the guilt phase, Eric was upset and anxious. In a way that was out of character for Eric, he urged us strongly to put on a defense. Eric Call felt that if the State’s evidence was not contradicted he would be convicted. Tony Lynch and I told Eric that as his lawyers we recommended against putting on evidence. In order to put further pressure on Eric to give up his constitutional right to put on a defense, we had his mother and father brought in to convince him to acquiesce with our plan. We did not put on evidence.

Appendix F, Affidavit of Don Wiley, attached to Petition, ¶¶ 15, 16. This averment shows the following: (1) at the end of the State’s evidence, the Petitioner was upset and anxious, an emotional state which would be most common for a defendant on trial for his life who has just heard the entire scope of the evidence against him; (2) at this point in the case, the Petitioner urged his attorneys to present a defense, however, this was out of character with his previous instructions; (3) the Petitioner thought that if the State’s evidence was not contradicted, he would be convicted; however, this overlooked the cross-examination of the State’s witnesses which effectively did contradict key points, see e.g., Atwater v. Crosby, 451 F.3d 799, 808 (11th Cir.2006) (“Atwater’s counsel subjected the state’s case to ‘a meaningful adversarial testing,’ conducting ‘meaningful cross-examination of fifteen of [the state’s twenty] witnesses.’ ” (quoting Atwater v. State of Florida, 788 So.2d 223, 231 (2001))); (4) the attorneys, not surprisingly, recommended that no defense be presented but that the State be put to the test of proof beyond a reasonable doubt; and (5) the trial attorneys felt so strongly about this strategy, which had previously been agreed upon, that they asked the Petitioner’s parents to influence him. Likewise, Mr. Lynch averred:

In my opening statement before the guilt phase of Eric’s trial I promised to produce evidence showing three friends, Eric Call, his wife Gini, and Alan Varden were together the night of the murder, that Allen and Virginia moved in together as soon as Eric was arrested and they would become alibi witnesses for each [other], that Varden assaulted Gini, that Alan Varden had a violent past, that there was a relationship between the decedent and Gabriel that was violent and that Eric Call had a clean record. In spite of this promise of detailed evidence showing the culpability and complicity of Varden and Gini, we put on no evidence in the guilt phase. I realized at the time and still believe that making this promise to the jury and then not following through constituted grievous error.... I had no strategic reason for making a promise in the opening before I knew if it would be fulfilled.

Lynch Affidavit, ¶¶ 9, 10. As noted above, Mr. Lynch most effectively accomplished each of these goals without ever having to present evidence during a defense for the Petitioner. United States v. McGill, 11 F.3d 223, 227 (1st Cir.1993) (“[C]ounsel’s handling of the on-again, off-again expert testimony was not only defensible, but impressive.” Counsel succeeded “by dint of skillful cross-examination” in eliciting much of the same evidence as he hoped to establish through his own witness.). In typical modest fashion and at a time when Mr. Lynch was terminally ill, he chose to denigrate his own performance in an effort to assist his client. Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (In reviewing an attorney’s performance, the distorting effects of hindsight must be eliminated and the performance judged from the perspective of the attorney at the time of trial.); Lovitt v. True, 403 F.3d 171, 181 (4th Cir.), cert. denied, — U.S. -, 126 S.Ct. 400, 163 L.Ed.2d 278 (2005) (“ ‘The best course for a federal habeas court is to credit plausible strategic judgments.’ To do otherwise would be a transparent misuse of the habeas court’s power of hindsight.” (quoting Bunch v. Thompson, 949 F.2d 1354, 1364 (4th Cir.1991))); Schmitt v. Kelly, 2006 WL 1954888, *17 (4th Cir.2006) (“Admittedly, Mr. Cooley testified that, in hindsight, he would'have filed a pretrial motion to suppress the Sauer/Schmitt tape at the penalty phase while simultaneously seeking admission of the tape at the guilt phase. Even with the acceptance of Mr. Cooley’s statement ..., that acceptance does not render the trial strategy actually instituted by Mr. Cooley objectively unreasonable. In hindsight, almost every lawyer, whether he has won or lost, recognizes that he could have improved upon some part of his performance at trial, but that honest recognition does not necessarily mean that his performance was constitutionally ineffective.”). However, the fact remains that the promises made in the opening statement were fulfilled. And, while no evidence was offered about the Petitioner’s clean record, Mr. Lynch planted that seed during the opening statement, an implication never refuted during the trial. Interestingly, the Petitioner does not argue that he did not consent to this strategy, nor would his lack of consent necessarily constitute ineffective assistance of counsel. See, e.g., Florida v. Nixon, 543 U.S. 175, 187, 125. S.Ct. 551, 160 L.Ed.2d 565 (2004) (The obligation to consult with a client “does not require counsel to obtain the defendant’s consent to every tactical decision.”). The claim made here is that the attorneys and the Petitioner’s parents “talked him into” not testifying or presenting evidence. However, as the State court found in ruling on the motion for appropriate relief;

Trial counsel wisely advised Call not to testify, even though it kept his [clean] record from coming before the jury, because cross-examination regarding Call’s actions the night of the murder, his change of appearance, change of identity, fligh