Strickland v. Lee (471 F. Supp. 2d 557, 2007)

United States District Court for the Western District of North Carolina 2007-01-30

Judiciary and Judicial Procedure

Citations

Full opinion text

ORDER

MULLEN, District Judge.

This matter is before the Court upon Petitioner Darrell Eugene Strickland’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Petitioner filed the instant Petition on January 25, 2002. Also before the Court are Respondent’s Motion for Summary Judgment, and Petitioner’s Motion to hold this matter in abeyance pending the United States Supreme Court’s decision in Rompilla v. Beard, No. 04-5462, decided sub. nom. Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005).

FACTS

On January 23, 1995, Darrell Eugene Strickland (hereinafter “Petitioner” or “Strickland”) was indicted for the first-degree murder of Henry Brown (hereinafter “victim” or “Henry”). The State entered notice of intent to seek the death penalty. Strickland was tried to a jury at the October 16, 1995, Criminal Session of Superior Court, Union County, the Honorable Sanford L. Steelman, Jr., Judge Presiding. Strickland was represented by Harry B. Crow, Jr. and Stephen Goodwin, Jr.

The facts of this case are summarized in the North Carolina Supreme Court’s opinion on Strickland’s direct appeal:

The State’s evidence tended to show inter alia that on 1 January 1995, the victim, Henry Brown, went with his wife, Gail Brown, and her six-year-old child to the home of defendant, who lived with Sherri Jenkins and their two-year-old son in Marshville, North Carolina. Mrs. Brown had formerly worked with both Ms. Jenkins and defendant at Cuddy Foods in Marshville and had been “good friends” with Ms. Jenkins for about six years. Ms. Jenkins had been dating defendant for thirteen years, had mothered his two-year-old son, and had been cohabiting with defendant for about six months at the time of the murder.

The Browns arrived at the residence of defendant and Ms. Jenkins at approximately 8:00 p.m. Mr. Brown had been drinking but was not drunk. Mr. Brown and defendant went into the kitchen, while Mrs. Brown and Ms. Jenkins stayed in the living room. The children were sent into the bedroom to play, and the adults began drinking alcoholic beverages. Ms. Jenkins testified at trial that they shared a marijuana joint and that all four adults drank from a half-gallon bottle of gin. The four adults continued drinking and talking for several hours. During this time, a shotgun owned by defendant was passed around. Everyone was talking about shooting it and joking about shooting each other, but there were no serious threats. There were two shells in the gun and no other shells in the house. Ms. Jenkins took the gun outside and fired it once.

At approximately 1:30 a.m., Mrs. Brown and Ms. Jenkins were in the kitchen preparing food for everyone to eat. The men were in the living room. Mrs. Brown testified that, while in the kitchen, she looked into the living room, where she saw her husband sitting on an ottoman with his head in his hands. Defendant was standing to the back and side of Mr. Brown with the gun in his hand pointed at Mr. Brown. Mrs. Brown saw defendant’s lips move but could not hear what he said. She then heard the gun being fired, smelled burning flesh, and saw her husband fall over.

Ms. Jenkins testified that she witnessed the victim sitting on the ottoman with defendant standing behind him. The victim was mumbling something that she could not hear. She stepped outside to feed the cats, during which time she heard the gun go off. She came back inside and saw the victim fall over. According to Ms. Jenkins, the victim’s behavior that evening was obnoxious and loud. He was cursing at intervals and drinking alcohol throughout the night.

Immediately following the shooting, defendant left in his truck. He drove to the house of his ex-wife, Ms. Betty Sanders, in Marshville. Defendant asked Ms. Sanders to drive him in his truck to his uncle’s house in Rocking-ham. At approximately 2:45 a.m., Ms. Sanders and defendant were stopped in Rockingham by Officer Poston and Officer Grant of the Rockingham Police Department, which had been notified to be on the lookout for defendant. Officer Grant transported defendant to the Rockingham Police Department.

At the Police Department, after being advised of his constitutional rights, defendant spoke to Special Agent Tony Underwood of the State Bureau of Investigation (SBI) and Detective Bill Tucker of the Union County Sheriffs Department. Defendant told them that he shot Henry Brown because “he pissed me off’ and because “he called me a punk Indian son-of-a-bitch.” Defendant said that no one else had anything to do with the shooting. He said that he “meant to kill” the victim. He denied that alcohol had caused him to commit the murder. Defendant said that he had not planned to kill the victim. He did however say that he had to cock the gun in order to get it to shoot.

Detective Easley of the Union County Sheriffs Department examined the crime scene during the early morning hours of 2 January 1995. Detective Easley found the body of Henry Brown lying on the living room floor on its left side. Blood was coming from the victim’s nose and mouth and a hole in the back shoulder area. There was no weapon on or around the victim’s body. In the gun cabinet, Detective Easley found one Ithaca twelve-gauge pump shotgun which contained one spent Winchester “double aught” buckshot casing in the chamber. He also found one spent “double aught” buckshot shell outside on the ground about eleven inches from the front doorstep.

Michael Gavin of the forensic firearms and tool marks unit of the SBI laboratory tested the shotgun and found that the gun functioned properly. Gerald Long, owner of Long’s Sporting Goods and Pawn Shop, testified that he had experience in selling, firing, and repairing Ithaca twelve-gauge pump shotguns. He testified that, in his opinion, the Ithaca shotgun, in the hands of someone not experienced with it, would go off faster than any other shotgun on the market and is susceptible to accident.

State v. Strickland, 346 N.C. 443, 488 S.E.2d 194, 198 -199 (N.C.1997).

The jury returned a verdict of guilty of first-degree murder on the basis of premeditation and deliberation. At a separate capital sentencing proceeding, the jury found the aggravating circumstance that the defendant had previously been convicted of a felony involving the use or threat of violence to the person. See N.C. Gen.Stat. § 15A-2000(e)(3)(Supp.l994) (amended 1995). The jury did not find the existence of any mitigating circumstances. The jury recommended a sentence of death, and the trial court sentenced defendant accordingly.

PROCEDURAL HISTORY

Strickland filed a direct appeal to the North Carolina Supreme Court, which was denied. State v. Strickland, 346 N.C. 443, 488 S.E.2d 194 (N.C.1997). On January 20,1998, the United States Supreme Court denied Strickland’s Petition for Writ of Certiorari. Strickland v. North Carolina, 522 U.S. 1078, 118 S.Ct. 858, 139 L.Ed.2d 757 (1998).

After the appointment of post-conviction counsel, Strickland filed a Motion for Appropriate Relief (hereinafter “MAR”) in the Superior Court of Union County on December 7, 1998. On March 23, 1999, he filed an amendment to the MAR. On September 20,1999, he filed a restated amendment to the MAR, and on December, 2, 1999, he filed a second amendment to the MAR. The State filed its Responses on November 21, 2000.

On May 21, 2001, an evidentiary hearing on Petitioner’s MAR was held in the Superior Court of Union County, William H. Helms, Judge Presiding. Petitioner was represented by post-conviction counsel, Lara Nichols and James N. Freeman, Jr. On June, 31, 2001, Judge Helms entered an Order denying Strickland’s MAR. On December 18, 2001, the North Carolina Supreme Court denied Strickland’s Petition for Writ of Certiorari. State v. Strickland, 354 N.C. 579, 559 S.E.2d 551 (N.C.2001).

On January 25, 2002, Strickland filed the instant Petition for Writ of Habeas Corpus (hereinafter “PWHC”). On April 17, 2002, Strickland filed a motion to voluntarily dismiss Claim No. XVI of the Petition, which this Court granted on April 26, 2002.

On July 12, 2002, Respondent filed an Answer and Motion for Summary Judgment. On July 25, 2002, Strickland filed a motion to strike Respondent’s Answer and for an order directing Respondent to file a new Answer specifically admitting or denying the allegations of each of the numbered paragraphs in the habeas petition and setting out affirmative defenses it intended to raise for each claim. On August 15, 2002, this Court entered an Order requiring Respondent to file a new Answer. On September 20, 2002, Respondent filed a new Answer and renewed the Motion for Summary Judgment.

On December 13, 2002, this Court entered an Order on its own motion putting Petitioner and Respondent on notice that it intended to raise the issue of procedural default sua sponte. By way of the same written Order, the Court instructed both parties to brief the issue of procedural default with regard to certain of Petitioner’s claims identified in the Order. On January 9, 2003, Petitioner filed a brief addressing the issue of procedural default. Respondent filed a brief on January 13, 2003. On October 15, 2003, Petitioner filed a supplement to his brief on procedural default.

Upon Petitioner’s motion, this matter was held in abeyance pending the outcome of State v. Hunt, (5A-86-8), which the North Carolina Supreme Court decided on July 16, 2003. 357 N.C. 257, 582 S.E.2d 593 (2003). On November 5, 2003, Petitioner filed a Brief in Response to the Respondent’s Motion for Summary Judgment.

On October 24, 2004, Petitioner filed a motion to hold this matter in abeyance pending the United State Supreme Court’s decision in Rompilla v. Horn, No. 04-5462, decided sub. nom. Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). On January 27, 2005, Respondent filed a motion seeking to file additional authority in support of its Motion for Summary Judgment.

On June 14, 2005, this Court entered its second Order directing the parties to address the issue of procedural default with regard to additional claims raised in the instant Petition. Both parties filed their briefs on July 25, 2005. These matters are now ripe for review.

LEGAL STANDARDS

A. Standard of Review under The Anti-terrorism and Effective Death Penalty Act of 1996

For those of Strickland’s claims adjudicated on the merits by a North Carolina court, this court’s review is limited by the deferential standard of review set forth in The Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AED-PA”), 28 U.S.C. § 2254, as interpreted by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This court may not grant federal habeas relief unless the North Carolina court’s adjudication of the claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

In Williams, the Supreme Court described two ways in which a state court decision will be “contrary to” clearly established Federal precedent within the meaning of § 2254(d)(1). Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. A state court decision will fall under the “contrary to” clause if the state court “applies a rule that contradicts the governing law set forth in [the United States Supreme Court’s] cases” or “confronts a set of facts that are materially indistinguishable from a decision of [the United States Supreme Court] and nevertheless arrives at a result different from [its] precedent.” Id. In either of those scenarios, a Federal habeas court would be unconstrained by § 2254(d)(1) because the state court decision would fall within the § 2254(d)(1) “contrary to” clause. Id. at 406, 120 S.Ct. 1495.

A state court decision involves an unreasonable application of clearly established law if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08, 120 S.Ct. 1495. The Supreme Court also made it clear that an unreasonable application of federal law differs from an incorrect application of federal law. Id. at 410, 120 S.Ct. 1495. Thus, “under 2254(d)(l)’s ‘unreasonable application’ clause ... a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411, 120 S.Ct. 1495. In deciding whether a state court’s application of clearly established federal law is unreasonable within the meaning of § 2254(d), a federal habeas court should ask whether the state court’s application of clearly established federal law was “objectively unreasonable.” Williams, 529 U.S. at 409, 120 S.Ct. 1495.

B. Summary Denial by State Courts

The North Carolina Supreme Court summarily denied most, if not all, of the claims Strickland raised as preservation issues on direct appeal. A summary denial constitutes an adjudication on the merits, and the deferential standard of review outlined in § 2254(d)(1) still applies. See Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir.2000) (citing Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir.1998)). Therefore, in those cases where the State court summarily denied a claim, the Court will conduct an independent examination of the record and the clearly established Supreme Court law while still applying the deferential standard required by § 2254(d)(1). See id. (citing Bacon v. Lee, 225 F.3d 470, 478 (4th Cir.2000)).

C. Harmless Error Analysis

If the Court finds that trial error rising to the level of a constitutional violation occurred, the error must then be evaluated under the standard articulated in Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993). Under the Brecht standard, a reviewing court must determine whether the constitutional error had a “substantial or injurious effect or influence in determining the jury’s verdict.” Id. at 637, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328

U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed.1557 (1946)). The Brecht standard is rooted in the federal harmless-error statute, 28 U.S.C. § 2111. Brecht, 507 U.S. at 638, 113 S.Ct. 1710. Under the Brecht standard, “habeas petitioners obtain plenary review of constitutional claims”, but cannot receive habeas relief based on trial error unless they establish that the error resulted in “actual prejudice.” Id. (citing United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986)).

PROCEDURALLY DEFAULTED CLAIMS

Ordinarily a federal habeas court will not review a claim that is procedurally defaulted, absent a showing of cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default. Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir.1998) (citing Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)) (holding that a claim dismissed on a state procedural rule is procedurally barred on federal habeas review). Generally, a claim will be defaulted if a state court has expressly found that review is barred by an adequate and independent state procedural rule, see Ashe v. Styles, 39 F.3d 80, 85 (4th Cir.1994), or if the claim was not presented to all appropriate state courts and an adequate and independent state procedural rule would now bar review, see Clagett v. Angelone, 209 F.3d 370, 378 (4th Cir.2000), cert. denied 530 U.S. 1285, 121 S.Ct. 1, 147 L.Ed.2d 1026 (2000).

Procedural default is an affirmative defense that must be raised by the state if it is not to lose the right to assert the defense thereafter. Gray v. Netherland, 518 U.S. 152, 165-66, 116 S.Ct. 2074, 2082, 135 L.Ed.2d 457 (1996). In this case, Respondent has not asserted a procedural default defense to any of Strickland’s claims. However, the Fourth Circuit has held that a federal habeas court has the discretion to raise the issue of procedural default sua sponte despite a state’s failure to preserve or present the issue properly. Yeatts v. Angelone, 166 F.3d 255, 261 (1999).

Both parties were notified in a December 13, 2002 Order that the Court might raise the issue of procedural default sua sponte. See id. at 262; see also Roach v. Angelone, 176 F.3d 210, 215 n. 3 (4th Cir.1999) (declining to raise procedural default sua sponte in part because the petitioner had not been provided an opportunity to address the issue). In that Order, the Court identified a number of Petitioner’s claims that it thought might raise procedural default issues and ordered each side to brief the issue with regard to those claims. Both Petitioner and Respondent filed briefs addressing the issue of procedural default with regard to the claims identified by the Court.

On June 14, 2005, the Court entered a second Order directing the parties to brief the issue of procedural default with regard to additional claims raised in the instant Petition. Both parties filed briefs addressing these claims on July 25, 2005.

A. “Adequate and Independent State Procedural Rule”

Generally, a claim will be defaulted if a state court has expressly found that review is barred by an adequate and independent state procedural rule. See Ashe v. Styles, 39 F.3d at 85. “A state rule is adequate if it is ‘firmly established,’ and regularly and consistently applied by the state court.” McCarver v. Lee, 221 F.3d 583, 588 (4th Cir.2000) (internal citations omitted). A state procedural rule is independent if it does not “depend! ] on a federal constitutional ruling.” See Burket v. Angelone, 208 F.3d 172, 183 (4th Cir.2000) (citing Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988)).

Petitioner argues that when a state court reaches the merits of a claim, the procedural default doctrine does not apply. However, if a state court clearly relies on an adequate and independent state procedural bar and then also finds no federal violation, that suffices to establish procedural default. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 1044 n. 10, 103 L.Ed.2d 308 (1989); see also Skipper v. French, 130 F.3d 603, 609 (4th Cir.1997) (“A decision which bases dismissal both on the merits and on an independent and adequate state law ground forecloses federal habeas review.”); Ashe v. Styles, 39 F.3d at 86 (Where a state court “both addresses the merits of the federal question but also invokes a state procedural bar that is adequate and independent of federal law as an independent ground for decision, a federal court must accord respect to the state ground for decision....”). Thus, although the State courts may have reached the merits of some of these claims, the procedural default doctrine still applies.

B. Failure to Exhaust in State Courts

Absent a valid excuse, a state petitioner must exhaust his remedies in state court before seeking federal habeas corpus relief. See § 2254(b)(1)(A). Generally, a claim will be defaulted on federal habeas review if the claim was not fairly presented to all appropriate state courts and an adequate and independent state procedural rule would now bar review. See Clagett v. Angelone, 209 F.3d at 378.

In the instant Petition, Petitioner has raised a number of unexhausted claims that would be barred in the state courts if he attempted to raise them now. For its part, Respondent has stated in its September 20, 2002 Answer that “Respondent agrees that petitioner has exhausted the state remedies as required by 28 U.S.C. § 2245[sic](b)(1)(A).” Because Respondent failed to assert the affirmative defenses of exhaustion and procedural default for any of Petitioner’s claims, Petitioner urges the Court to apply the civil doctrine of “waiver,” which prohibits the Court from considering any claim or defense that the parties failed to raise.

Under the circumstances of this case, the Court does not view the above-mentioned statement by Respondent as an intelligent waiver of the exhaustion requirement. See § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.”). It is apparent from the various filings in this Court that Respondent paid only cursory attention to the claims and arguments raised in the Petition and to the Record in this case when preparing the Answer and Motion for Summary Judgment. Therefore, the Court views Respondent’s “agreement” that Petitioner has exhausted state remedies as merely an erroneous statement of the procedural history in this case. See e.g., Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 1684, 164 L.Ed.2d 376 (2006) (District court had authority to sua sponte dismiss habeas petition despite State’s agreement that petition was timely where agreement was based upon miscalculation of time, not intelligent waiver). The Court finds it significant that when twice ordered to address the issue of procedural default, which includes exhaustion issues, Respondent did not assert that it was waiving the exhaustion requirement. In fact, in one of the briefs addressing procedural default, Respondent asserts that the failure to raise the issue of procedural default was inadvertent. (Respondent’s January 13, 2003 Brief)

Additionally, there is a difference between ordinary civil cases and habeas petitions. Rule 4 of the Rules Governing Section 2254 cases states, “If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.” This rule “differentiates habeas cases from other civil cases with respect to sua sponte consideration of affirmative defenses.” Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir.1999); see also Hill v. Braxton, 277 F.3d 701, 705 (4th Cir.2002). As the Fourth Circuit noted in Hill, “[ajctions brought pursuant to § 2254 implicate considerations of comity, federalism, and judicial efficiency to a degree not present in ordinary civil actions.” 277 F.3d at 705. “These interests eclipse the immediate concerns of the parties and provide federal habeas courts the discretionary authority to raise affirmative defenses that have not been preserved by the state.” Id. (citing Yeatts v. Angelone, supra, 166 F.3d at 261).

Under the circumstances presented in this case, the Court believes it is appropriate to address the issue of procedural default notwithstanding Respondent’s failure to assert that defense. First, the instances of procedural default are numerous. Second, to consider Petitioner’s unexhaust-ed claims would contravene the intent of Congress which mandated in the AEDPA that a petitioner exhaust state court remedies before seeking habeas review of constitutional claims. Finally, federal habeas review would amount to a windfall for Petitioner. He would win plenary review of claims that he did not present to the North Carolina courts, whereas habeas petitioners who properly presented their claims to state courts first would be entitled only to the extremely narrow review mandated by section 2254(d).

DISCUSSION

CLAIM I A: BRADY V. MARYLAND CLAIMS

Prior to trial in this case, Gail Brown, the State’s key eye-witness, had three conversations with law enforcement officers in the days following the shooting of her husband, Henry Brown. None of the officers’ reports containing these conversations was turned over to petitioner’s trial counsel. During post-conviction discovery, the State turned over to Strickland’s post-conviction counsel: 1) the Incident/Investigation Report of Ted Keziah, the first officer to respond to the scene of the shooting (Pet. Exh.82); 2) a statement made by Gail Brown to SBI Special Agent Tony Underwood on January 2, 1995 (Pet.Exh.83); 3) a statement made by Gail Brown to Agent Underwood on February 7, 1995 (Pet. Exh.84); and 4) a typed synopsis of the ease made for the SBI by Agent Underwood on February 22, 1995 (Pet.Exh.88). Strickland asserts that those documents should have been turned over to his trial counsel under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because they contained exculpatory evidence, impeaching materials and prior inconsistent statements made by Gail Brown to investigators. Strickland claims that the prosecution’s failure to comply with Brady deprived him of his right to confront witnesses, to a reliable guilt phase and sentencing phase proceeding and to due process, in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

In Brady v. Maryland, the United States Supreme Court held that the prosecution deprives a criminal defendant of due process when it suppresses evidence that is “favorable to an accused ... where that evidence is material either to guilt or punishment....” 373 U.S. at 87, 83 S.Ct. 1194. There are three elements that Petitioner must establish in order to prove a Brady violation: (1) the evidence must be favorable to Petitioner, “either because it is exculpatory, or because it is impeaching”; (2) “that evidence must have been suppressed by the State, either willfully or inadvertently”; and (3) the evidence must be material, i.e., “prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 282, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). In order to establish the “prejudice” component, Petitioner must show that “there was a reasonable probability” that the result of the trial would have been different if the suppressed evidence had been disclosed to the defense. Strickler, 527 U.S. at 263, 119 S.Ct. 1936. In other words, the question is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995).

1) Officer Keziah’s Incidentllnvestigation Report (Pet.’s Exh. 82)

Officer Ted Keziah was the first law enforcement officer to talk to Gail Brown about what happened on the night of the shooting. Among other notations, his brief Incident/Investigation Report contains the following sentence: “Gale [sic] stated they were fixing them something to eat and Henry and Eugene were running there [sic] mouths at one another and Eugene Strickland got a shotgun out of the cabinet and shot Henry.” Strickland argues that Gail Brown’s comment that the two men were “running their mouths at one another” was exculpatory because it tended to negate the first-degree murder elements of premeditation and deliberation. Strickland argues further that this comment could have been used to impeach Gail Brown’s trial testimony that the two men were not arguing or fighting prior to the shooting.

Strickland raised this claim in his Restated Amendment to his MAR. (Pet. Exh. C, p. 6, ¶ 238(a)) The MAR court held that the State’s failure to disclose Gail Brown’s comment to Officer Keziah that Strickland and Henry Brown had been “running their mouths” at each other was not a violation of Brady because Gail Brown had made no mention to Officer Keziah that the two men were fighting or threatening each other. (MAR Order, Claim V, p. 17) Because the MAR court correctly identified the governing legal standard as that set forth in Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. 1194, this Court’s review is limited to the question of whether that court’s application of Brady was “objectively unreasonable.” See Williams, 529 U.S. at 409, 120 S.Ct. 1495, 146 L.Ed.2d 389.

The MAR court’s determination that “running their mouths at each other” meant something other than “fighting or threatening each other” is a finding of fact. A finding of fact by a State court is presumed to be correct, and Petitioner bears the burden of rebutting that presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Despite Strickland’s presumption that “running their mouths at each other” means arguing or fighting, the expression is ambiguous. It could mean arguing or fighting. It also could mean a kind of “one-upsmanship.” In fact, there was evidence from both Gail Brown and Sherry Jenkins Strickland that the two men were engaging in “one-upsmanship” throughout the evening. Gail testified that Strickland, Henry and Sherry were joking around about the shotgun and telling each other they should get the gun and shoot each other. (Tpp 968-69) Sherry testified that on a few occasions during the evening, Strickland and Henry discussed “whipping each other’s tails,” and “who was the baddest.” (Tp 1235) Detective Bill Tucker, who interviewed Sherry in the aftermath of the shooting, testified on rebuttal for the State that Sherry had told him that the two would then “hug and laugh,” and that she never took what they were saying seriously. (Tp 1332) During the MAR evi-dentiary hearing, Sherry even equated running their mouths at each other with “one-upsmanship”:

Prosecutor: And you told Mr. Crow that they were discussing whipping each others tails, who was the baddest, back and forth?

Mrs. Strickland: That’s at the very beginning of the night when they first came in.

Prosecutor: So they were just running their mouths at each other?

Mrs. Strickland: In the very beginning, yes.

(MAR Tp 101)

Contrary to Petitioner’s assertion that the shooting occurred “after hours of verbal arguing” (PWHC ¶284), no one who testified at trial used the words “arguing,” “fighting” or “threatening” to describe Strickland and Henry Brown’s behavior toward one another. Although Sherry testified that Henry was “[o]bnoxious at times, very loud” (Tp 1252) and that she was nervous “that he might start an argument that would end up being a serious conflict” (Tp 1236), she did not testify that she witnessed or heard any argument take place. She did not describe the men as arguing, yelling at each other, or even raising their voices at each other. Nor did she testify that the men appeared angry at one another. In fact, Detective Tucker testified that Sherry told him that the two men had been “picking and joking” with each other all night and that she “never heard anyone threaten the other.” (Tp 1332)

Significantly, both Gail Brown and Sherry Strickland testified that they could not hear what the two men were saying to each other in the minutes before the shooting. For some period of time before the shooting, both women were in the kitchen cleaning the table and heating up food, while Strickland and Henry were in the living room. The kitchen of the trailer home in which the Stricklands lived was separated from the living room by a counter top/bar, not a wall. (Pet. Exh. 83; Tp 972) That arrangement allowed someone in the kitchen to see what was going on in the living room and vice versa. (Pet. Exh. 83, Tp 972) In fact, Gail testified that she witnessed the shooting as she was standing in the kitchen looking into the living room. (Tpp 972-73) As noted earlier, Gail testified at trial that she could not hear what the two men were saying before the shooting. This is consistent with Sherry’s version of events. Sherry, who was in the kitchen with Gail, told Detective Tucker that when she and Gail were in the kitchen, Strickland and Henry were in the living room “just talking” but that she and Gail could not hear what they were saying. (Tp 1332) Sherry testified that as she headed to the door to take a plate of scraps to the cats outside, she saw Henry mumbling something but could not hear what he was saying. (Tp 1260) She testified further that she was outside for “five seconds at the most, if that long” when she heard the shot. (Tp 1249) If the two men were arguing, they were quiet enough about it that Sherry could not hear them.

Petitioner has failed to show by clear and convincing evidence that the MAR court’s finding was incorrect. 28 U.S.C. § 2254(e)(1). There was ample evidence to support the state court’s determination that “running their mouths at each other” meant something other than arguing and fighting.

Under the MAR court’s finding, which this Court must accept as correct, Gail Brown’s remark to Officer Keziah was neither exculpatory nor impeaching. The MAR court’s holding that Officer Keziah’s report was not Brady material was not an unreasonable application of established Federal law. Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. 1495.

2) Gail Brown’s January 2, 1995 Statement to Agent Underwood (Pet.Exh.83)

Gail Brown was interviewed by SBI Special Agent Tony Underwood on January 2, 1995. (Pet.Exh.83) Strickland claims that this statement should have been turned over to his trial counsel under Brady v. Maryland because it contained exculpatory evidence, impeaching materials and inconsistent statements. 373 U.S. at 87, 83 S.Ct. 1194. However, this claim is procedurally defaulted because Petitioner failed to fairly present it to all appropriate state courts, and it would be procedurally barred in the state courts if he attempted to raise it now. See Clagett v. Angelone, 209 F.3d at 378.

Petitioner raised a Brady claim concerning Exhibit 83 for the first time as Claim V C(l) in his Restated Amendment to the MAR. (Pet.Exh. C) In her January 2, 1995 statement, Gail told Agent Underwood that her husband had assaulted her in the past. (Pet.Exh. C, p. 6, ¶ 238(b)) Petitioner asserted that this was exculpatory evidence that should have been disclosed to him pursuant to Brady. This was the only portion of the January 2, 1995 statement alleged in the MAR to be Brady material. However, during the MAR hearing, post-conviction counsel identified three additional portions of the January 2, 1995 statement that they argued should have been disclosed to defense counsel under Brady. Specifically, Gail told Agent Underwood, 1) that she had told her husband on several occasions on the night of the murder that she wanted to leave the Stricklands’ home; 2) that the two men did not use drugs on the night of the murder; and 3) that she could not hear what the two men were saying prior to the shooting, but they were not arguing or yelling. (MAR Tpp. 39-41)

After the MAR court denied all of the claims raised in his MAR, Petitioner filed a Petition for Writ of Certiorari to the North Carolina Supreme Court seeking discretionary review of the MAR court’s Order. (Pet.Exh.E) In Claim I of his Petition for Writ of Certiorari, Petitioner states only that the January 2, 1995 statement (Pet. Exh.83) was “relevant, material and favorable to Petitioner,” because it “contradicted important parts of Gail Brown’s trial testimony” and that it should have been turned over to trial counsel under Brady. (Pet. Exh. E, pp 8-9) However, Petitioner failed to identify for the North Carolina Supreme Court’s any portion of the January 2, 1995 statement that he believed was either exculpatory or that impeached Gail’s testimony.

In order to fully exhaust a claim in the state courts, a petitioner must fairly present his claim to the state’s highest court. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.1997). “Fair presentation” requires that a petitioner present “both the operative facts and the ‘controlling legal principles’ ” underlying the claim. Id. (citations omitted). While it is clear that Petitioner cited the controlling legal principles, he did not present the North Carolina Supreme Court with the operative facts to support a claim that the January 2, 1995 statement (Pet.Exh.83) should have been disclosed under Brady.

Petitioner argues that he fairly presented a Brady claim with regard to the January 2, 1995 statement (Pet.Exh.83) when he referred to the statement in the body of the Petition for Writ of Certiorari, argued that it was relevant, material and favorable to Petitioner because it “contradicted important parts of Gail Brown’s trial testimony,” and attached copies of the statement, the MAR, the MAR hearing transcript and portions of the trial transcript to the Petition. Petitioner argues that “fair presentation” of a claim requires nothing more.

As this Court understands Petitioner’s argument, if the North Carolina Supreme Court wanted to determine what claim was being raised, all it had to do was read the MAR, the MAR hearing transcript and Gail’s trial testimony and compare those documents to her six (6) page January 2, 1995 statement to determine which portions of it Petitioner might consider exculpatory or impeaching evidence. However, the flaw in this argument becomes apparent when one considers the Brady claim raised in the instant Petition for Writ of Habeas Corpus.

In the instant Petition, Petitioner alleges that in addition to the four portions of the January 2, 1995 statement identified in the MAR and MAR hearing transcript as Brady material, six additional portions of the January 2, 1995 statement are exculpatory or impeaching evidence under Brady. Under Petitioner’s “fair presentation” argument, the state Supreme Court should have recognized that these additional portions were part of the Brady claim raised in the Petition for Writ of Certiorari even though it would have found no reference to them anywhere in the Petition or in the attached documents except in the January 2, 1995 statement. Taking Petitioner’s argument to its logical conclusion, all that is required then to fairly present a Brady claim is a general reference to a document and the document itself because the state court on its own is capable of reading that document and determining for itself what the petitioner considers to be exculpatory and/or impeaching.

Such a reading of the “fair presentation” requirement cannot be supported. It is not the state court’s responsibility to determine for itself what claim is being raised. Instead, “fair presentation” of a claim requires that a petitioner present the state courts not only with his “legal theory as to why his constitutional rights have been violated, but also the factual predicate on which the legal theory rests.” See Landano v. Rafferty, 897 F.2d 661, 670 (3rd Cir.1990).

In this case, Petitioner failed to identify for the North Carolina Supreme Court any portion of Gail’s January 2, 1995 statement that allegedly was either exculpatory or impeaching. As such, Petitioner failed to present the “operative facts” or “factual predicate” of a Brady claim with regard to the January 2, 1995 statement (Pet. Exh.83). Therefore, Petitioner failed to exhaust his Brady claim with regard to the January 2, 1995 statement to Agent Underwood (Pet.Exh.83). Furthermore, Petitioner would be barred in the State courts from bringing this claim if he attempted to do so now. See N.C. Gen.Stat. § 15A-1419(a); N.C. R.App. P. 21.

Petitioner has failed to demonstrate cause and prejudice to excuse his failure to fairly present this claim to the North Carolina Supreme Court. Furthermore, he has failed to show that a fundamental miscarriage of justice would occur if the Court refused to address this claim on the merits. Therefore, this claim is procedurally defaulted. See Fisher v. Angelone, 163 F.3d at 844.

3) Gail Brown’s February 7, 1995 Statement to Agent Underwood (Pet.Exh.84)

Strickland argues that Gail Brown’s February 7, 1995 statement (hereinafter “February statement”) to Agent Underwood QPet.Exh.84) contains evidence supporting his defense at trial that the shooting was an accident. Gail told Agent Underwood that she called Sherry after the shooting to ask her about rumors that she had been hearing. Gail informed Agent Underwood that her brother-in-law, James Massey, had told her that “Squeaky” was saying that the gun had gone off by accident.

The MAR court denied this claim on the merits and held that it was procedurally barred by N.C. Gen.Stat. § 15A-1419(a)(2) because Strickland had raised the substance of the claim on direct appeal. Because the MAR court invoked a state res judicata rule in declining to review this claim, the relevant decision for federal ha-beas purposes is that of the North Carolina Supreme Court on direct review. See Goins v. Angelone, 226 F.3d 312, 320 (4th Cir.2000) abrogated on other grounds by, Bell v. Jarvis, 236 F.3d 149 (4th Cir.2000); Ramdass v. Angelone, 187 F.3d 396, 402 (4th Cir.1999).

The record shows that during pre-trial discovery, the State disclosed to defense counsel that Strickland had told an individual that the gun had gone off by accident, but the State did not disclose James Massey’s name or the fact that the information was given by Gail to Agent Underwood. (Pet. Exh. 34, Attachment: Substance of Oral Statements made by defendant Darrell Eugene Strickland) Trial counsel made several motions to require the State to disclose the name of the person to whom Petitioner had said that the gun had gone off accidently, but the trial court ruled that the State had complied with the statutory discovery procedure by providing Strickland with the substance of all oral statements made by him.

On direct appeal, Petitioner claimed error on the part of both the State and the trial court and argued that pursuant to Brady v. Maryland, he was entitled to the name of the person to whom he allegedly had stated that the gun had gone off acci-dently. (Defendant-Appellant’s Brief to the North Carolina Supreme Court (Pet. Exhibit A), Issue VI, pp. 65-69) The North Carolina Supreme Court rejected Petitioner’s Brady claim on the merits. State v. Strickland, 488 S.E.2d at 201-202. Of paramount importance to the court was the fact that Strickland was aware of the substance of the statement and that it was made by him. See id. at 202. The court held that Strickland “is presumed to know to whom he spoke about the murder.” Id. Additionally, the court concluded that the substance of the statement was not material because the overwhelming evidence presented at trial showed that Strickland shot Henry Brown intentionally. See id. Therefore, the court determined that it was not reasonably probable that the outcome of the trial would have been different had the prosecution disclosed the name of the individual to whom Strickland allegedly spoke. See id.

In determining whether the North Carolina Supreme court’s adjudication of Petitioner’s Brady claim was “objectively unreasonable,” see Williams, 529 U.S. at 409, 120 S.Ct. 1495, this Court need not reach the issue of materiality. Brady “does not compel the disclosure of evidence available to the defendant from other sources, including diligent investigation by the defense.” Stockton v. Murray, 41 F.3d 920, 927 (4th Cir.1994) (citing United States v. Wilson, 901 F.2d 378, 380 (4th Cir.1990)). If evidence available to the defendant from other sources falls outside of Brady then, by extension, evidence actually known to the defendant also must fall outside the Brady rule. See Fullwood v. Lee, 290 F.3d 663, 686 (4th Cir.2002). In Fullwood, the prosecution failed to disclose an oral statement Fullwood had made to a detective in which he admitted killing the victim but claimed he had been using cocaine and had lost control. Id. at 685. Fullwood argued that this statement was material under Brady because it would have afforded him a diminished capacity defense and mitigated his crime from first to second-degree murder. The Fourth Circuit held that the State did not suppress the information that came out during the conversation between Fullwood and the detective because “Fullwood, better than anyone, knew about his cocaine use on the night prior to the stabbing and knew that he had recounted this fact to Detective Robinson.” Id. at 686.

The State disclosed that Strickland had told at least one person that the shooting was an accident. Strickland is presumed to know, better than anyone, to whom he spoke about the shooting. See id. Petitioner cannot show that the State suppressed evidence that he had told someone that the gun went off accidently. See Strickler v. Greene, supra, 527 U.S. at 282, 119 S.Ct. 1936. Therefore, the North Carolina Supreme Court’s conclusion that Brady did not require disclosure of the name of the person to whom Strickland allegedly stated that the gun had gone off accidently was not an unreasonable application of established Federal law. See § 2254(d)(1).

In the instant Petition, Strickland also argues that there was evidence in Gail Brown’s February statement that she herself was a suspect, thereby giving her a motive to lie. Gail told Agent Underwood that “there was not a conspiracy between her, Sherry Jenkins, and ‘Squeaky’ to kill Henry,” and that she was willing to submit to a polygraph examination at the Union County Sheriffs Department. (Pet. Exh.84) Petitioner raised this portion of his Brady claim in state court by way of his Restated Amendment to the MAR (p. 7, ¶ 238(c)) and during the MAR hearing (MAR Tpp 26; 39-41). The MAR court did not address this portion of Petitioner’s claim; therefore, this Court’s review is de novo.

Petitioner fails to articulate how or why this information was either exculpatory or impeaching evidence. It certainly is not exculpatory because any evidence of a conspiracy between Gail, Sherry and Petitioner would put Petitioner’s shooting of Henry Brown squarely and unquestionably in the category of first-degree murder. Nor is it clear how this evidence impeaches any of Gail’s testimony. For example, Petitioner fails to put forth any argument explaining what Gail would have been motivated to lie about if she was viewed as suspect. While it can be argued that the implication that Gail Brown might have been a suspect in the murder could have caused the jury to question her credibility, that still does not undermine the Court’s confidence in the jury’s verdict. See Strickler v. Greene, 527 U.S. at 282, 119 S.Ct. 1936.

As the North Carolina Supreme Court and the MAR court noted, evidence against Strickland was “overwhelming.” Strickland, 488 S.E.2d at 202. Undermining Gail Brown’s credibility does not call into question that Strickland shot Henry Brown in the back while Brown was seated. Sherry Strickland testified that after the shot, Henry fell sideways off the ottoman on which he was seated (Tpp 1248-49), and the medical examiner determined that Henry was shot in the back by someone standing over him while Henry was seated and slouched forward. (Tp 1081) Undermining Gail Brown’s credibility does not change Strickland’s statements to the police that he had shot Henry because Henry had “pissed him off,” had called him a “punk-ass Indian son-of-a-bitch,” and that he “meant to kill him.” (Tp 1210) Nor does it undermine Strickland’s statement to law enforcement that he stood close to Henry when he shot him because he didn’t want to miss him, and that he had to cock the gun to get it to shoot. (Tp 1210)

The jury was given instructions for First-Degree Murder, Second-Degree Murder, Voluntary Manslaughter and Involuntary Manslaughter. Among the evidence before it, the jury had the manner in which Henry had been shot, as well as Sherry’s testimony of obnoxious, offensive behavior by Henry and Strickland’s explanation to police that he shot Henry because Henry had used a racial slur. The jury also heard evidence that both men had been drinking and using drugs in the hours before the shooting. In fact, the jury heard that Henry’s blood alcohol content was .18 at the time of the shooting. (Tp 1080) The jury returned a verdict of First Degree Murder. This Court cannot say that undermining or completely discrediting Gail Brown’s testimony would have “put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. at 435, 115 S.Ct. 1555. The MAR court’s holding that the State’s failure to disclose Gail Brown’s February 7, 1995 statement (Pet.Exh.84) was not prejudicial to Strickland’s trial was not an unreasonable application of established Federal law.

Penalty Phase

This Court likewise finds that Strickland’s claim that the State’s failure to disclose Officer Keziah’s report (Pet.Exh.82) and Gail Brown’s February statement (Pet.Exh.84) prejudiced the outcome of his sentencing to be without merit. Strickland argues that he raised this claim in his Restated Amendment to the Motion for Appropriate Relief, and that the MAR court failed to address it on the merits. Therefore, Strickland argues, this Court must review the claim de novo.

The Court notes that to the extent that the MAR court did not address the Brady issue as it applied to the penalty phase, the blame can hardly be laid at the feet of the court. First, it is less than clear that Strickland raised this Brady claim during his collateral attack. Second, the MAR court asked post-conviction counsel several times if Petitioner’s Brady claim applied only to the guilt/innoeence phase, and each time the answer was in the affirmative. However, giving Petitioner the benefit of the doubt about whether he fairly presented a Brady claim relating to the penalty phase of the trial, this Court finds that the State’s failure to disclose Officer Keziah’s report and Gail Brown’s February statement (Pet.Exh.84) did not violate the requirements of Brady v. Maryland as it is applied at sentencing.

As an initial matter, this Court is not required to review Petitioner’s claim de novo because, for the most part, the MAR court’s analysis of Petitioner’s Brady claims applies equally to the guilt/innocence and the sentencing phases of the trial. The MAR court made a factual finding that Gail Brown’s remark to Officer Keziah that the two men were “running their mouths at each other” meant something other than arguing or fighting. Therefore, the remark was neither exculpatory nor impeaching evidence, and the State was not required to disclose it under Brady, 373 U.S. at 87, 83 S.Ct. 1194. The MAR court’s finding of fact applies equally to the guilt/innocence and penalty phases of the trial. In other words, “running their mouths at each other” would not have meant one thing at the trial and something else at sentencing. Thus, if the remark was not exculpatory or impeaching evidence for the purposes of the trial, it was not exculpatory or impeaching evidence for the purposes of the sentencing proceeding.

With regard to Gail Brown’s February statement, the MAR court concluded that Gail’s revelation to Agent Underwood that James Massey had told her that Strickland was saying that the gun had gone off by accident was not suppressed by the State because the identity of the man to whom Strickland spoke about the shooting was available from other sources, including Strickland himself. (MAR Order, p. 18) Although this conclusion addressed Petitioner’s claim regarding the guilt/innocence portion of the trial, it applies equally to the penalty phase. See Fullwood, 290 F.3d at 686; Stockton, 41 F.3d at 927. In this case, whether the State suppressed the evidence is not dependent upon which phase of the trial is at issue; either the State suppressed the evidence or it did not, and in this case, it did not. If the State did not suppress the evidence, there is no Brady violation. See Strickler v. Greene, 527 U.S. at 282, 119 S.Ct. 1936.

All that remains for the Court to address, then, is Petitioner’s assertion that Gail’s February statement (Pet.Exh.88) contained evidence that she herself was a suspect. As noted previously, Petitioner fails to articulate how or why this information was either exculpatory or impeaching evidence. Nor does he indicate how this information was material to his case at sentencing. The Court notes that Gail did not testify at the sentencing phase of the trial. However, assuming as before that this information raises an issue with regard to Gail’s credibility, the Court concludes that the State’s failure to disclose this information did not prejudice the outcome of the penalty phase of the trial. See id.

During the penalty phase, the State offered one aggravating circumstance — that Strickland previously had been convicted of a felony involving the use of violence to the person. See § 15A-2000(e)(3). Jurors heard evidence that Strickland had been convicted of voluntary manslaughter for shooting a man outside a bar. Jurors also heard evidence that Strickland had been convicted of assault with a deadly weapon inflicting serious injury for cutting a man down the back with a knife. Jurors unanimously found as an aggravating circumstance that Strickland previously had been convicted of a felony involving the use of violence to the person. The jury did not find any mitigating circumstances.

Undermining Gail Brown’s credibility would not have called into question or impacted the strength of the State’s aggravating factor. Furthermore, in addition to the evidence of Strickland’s prior acts of violence against others, the jury had all of the evidence from the trial to consider. The jury heard evidence that Strickland got up from a seated position, walked past Henry Brown to his gun cabinet, opened it, took out the shotgun and cocked it. Then, because he did not want to miss, he stood at close range behind Henry Brown and shot him in the back as he sat slouched forward with his coat over his knees. The jury also heard Petitioner’s confession to Agent Underwood that he had shot Henry because Henry had “pissed him off’ by calling him a “punk-ass Indian son-of-a-biteh.” (Tp 1210) Additionally, Sherry Strickland testified that she saw Henry’s lips moving as she passed through the living room seconds before the shooting. While the jury easily could have concluded that Henry Brown said something to anger Petitioner, the uncontroverted evidence showed that from the time Strickland stood up until the time he shot Henry Brown, Brown did not stand up or turn around. Thus, there was no evidence that the two men were involved in any kind of physical confrontation at the time that Petitioner shot Henry in the back. The jury heard this evidence from witnesses other than Gail Brown.

The fact that Gail Brown might have been a suspect, however briefly, does not “put the whole case in such a different light as to undermine confidence” in the sentence. Kyles v. Whitley, 514 U.S. at 435, 115 S.Ct. 1555. Therefore, the State’s failure to disclose Gail Brown’s February 7, 1995 statement to Agent Underwood (Pet.Exh.84) was not a violation of Brady, 373 U.S. at 87, 83 S.Ct. 1194.

CLAIM IB: NAPUE V. ILLINOIS CLAIMS

1) Officer Keziah’s Report (Pet. Exh.82)

Petitioner claims that Gail Brown testified untruthfully at trial and that the prosecution knew she testified untruthfully but failed to correct her false testimony in violation of Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Specifically, Petitioner alleges that Gail’s trial testimony that Strickland and Henry Brown did not argue or fight on the night of the shooting was false in light of her comment to Officer Keziah that the two men were “running their mouths at each other” before the shooting. (Pet. Exh. 82; 88) Petitioner claims that the State’s failure to correct Gail’s false evidence deprived him of his Sixth, Eighth and Fourteenth Amendment rights.

In Napue v. Illinois, the U.S. Supreme Court held that under the due process clause of the 14th Amendment, a State may not knowingly use false evidence to obtain a conviction. 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959) (citations omitted). This applies equally to situations where the State deliberately elicits false testimony and where the State, although not soliciting false evidence, allows it to go uncorrected. Id. (citations omitted). Nor does the rule “cease to apply merely because the false testimony goes only to the credibility of the witness,” rather than directly to the guilt of the defendant. Id. However, Napue and its progeny do not automatically require a new trial whenever “a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict....” Giglio v. U.S., 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); (citing U.S. v. Keogh, 391 F.2d 138, 148 (2nd Cir.1968)). Instead, a new trial is warranted if “the false testimony could ... in any reasonable likelihood have affected the judgment of the jury....” Napue, 360 U.S. at 271, 79 S.Ct. at 1178.

The MAR court found Strickland’s false evidence claim to be without merit for the same reason it rejected Strickland’s Brady claim with regard to Exhibit 82. In its adjudication of Petitioner’s Brady claim, the court made a factual finding that Gail’s use of the term “running their mouths at each other” did not mean that the two men were arguing or fighting. Therefore, the court concluded that Gail’s testimony that there was no arguing or fighting between the two men did not contradict her comment to Officer Keziah that Strickland and Henry Brown were “running their mouths” at each other. There being no contradiction between her testimony and her comment to Officer Keziah, the court concluded there was no Napue violation. Because the MAR court correctly identified the governing legal standard as that set forth in Napue v. Illinois, 360 U.S. at 269, 79 S.Ct. 1173, this Court’s review is limited to the question of whether that court’s application of Napue was “objectively unreasonable.” See Williams, 529 U.S. at 409, 120 S.Ct. 1495, 146 L.Ed.2d 389.

For the reasons articulated in the section of this Order addressing Strickland’s Brady claim with regard to Exhibit 82, this Court concludes that the MAR court’s holding with regard to this claim was not an unreasonable application of clearly established Federal law. See § 2254(d). As previously noted, “running their mouths at each other” is an ambiguous expression. There is ample evidence in the record to support the MAR court’s determination that the expression meant something other than arguing or fighting.

Although he does not put forth any argument regarding how he was prejudiced at sentencing, Petitioner does cite the Eighth Amendment in this claim, thereby implying that he is raising a claim regarding sentencing. As explained in the previous section of this Order, the MAR court’s holding in this claim applies equally to the trial and sentencing proceedings. If Gail Brown’s testimony was not false at the trial, it also would not have been false at sentencing. Therefore, to the extent that Petitioner is raising a Napue claim with regard to sentencing, the MAR court’s adjudication of this claim was not an unreasonable application of clearly established Federal law. See § 2254(d)(1).

2) Gail Brown’s January 2, 1995 Statement to Agent Underwood (Pet.Exh.83)

Petitioner alleges that Gail Brown’s trial testimony contradicted a number of things she told Agent Underwood during her January 2, 1995 interview (Pet.Exh.83) and that the prosecution knew she testified untruthfully but failed to correct her false testimony in violation of Napue, 360 U.S. at 269, 79 S.Ct. 1173. Specifically, Petitioner alleges that Gail Brown’s testimony contradicted the following comments that she made in her January 2, 1995 statement:

Henry Brown and Strickland were talking but she could not hear what they were saying. They were not arguing or yelling.

She had been trying to get her husband to leave on and off all evening because she did not want to spend the night at someone else’s house.

To her knowledge, Henry and Strickland were drinking gin but were not using drugs.

Henry was shot in the right side of his body.

Henry and Strickland have used marijuana together in the past but they were not using it on the night of the shooting. She did not think Henry had any drugs on him.

(PWHC, pp. 77-78 citing Pet. Exh. 83)

Petitioner complains that the MAR court failed to address his Napue claim with respect to the January 2, 1995 statement (Pet.Exh.83). The MAR court did not address this claim for the very simple re