Full opinion text
MEMORANDUM OF OPINION THORNBURG, District Judge. THIS MATTER is before the Court on the Petitioner’s petition for a writ of habe-as corpus pursuant to 28 U.S.C. § 2254. Both parties have filed motions for summary judgment and submitted portions of the record for review as well as legal briefs. Respondent has also filed a response to the petition. The undersigned concludes the record is adequate and finds an evidentiary hearing is unnecessary. Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts. For the reasons stated herein, the petition is denied. I. FACTUAL BACKGROUND The facts are taken from the North Carolina Supreme Court decision in State v. Frye, 341 N.C. 470, 461 S.E.2d 664 (1995), and the trial transcripts submitted by the parties. Leroy Childress testified that his brother, Ralph, owned a trailer which was leased to the Petitioner. From time to time, Petitioner could not pay the rent and Ralph occasionally allowed him to perform work in lieu of rent. However, Ralph had been trying to evict Petitioner for about three months prior to his murder in the early morning hours of Sunday, January 24, 1993. Leroy also testified that he had spent the day before the murder with his brother who wrote two notes ordering the Petitioner to vacate the trailer. Leroy affixed one note to the front door of the trailer and the other to the back door. Leroy said his brother was known to carry a large sum of money in cash, typically $5,000 in $100 bills. At about 2:00 a.m. on January 24, Ralph called his brother and told him the Petitioner had been at his house trying to sell him a couch. During the conversation, Ralph relayed to his brother that he told Petitioner to vacate the trailer and Petitioner agreed to do so the next day. Ralph and Leroy made plans to meet t' r breakfast the next morning. On Sunday morning, Leroy called his brother, but there was no answer. Finding this strange, Leroy rushed to his brother’s home around 8:00 a.m. and found Ralph lying on the floor with a pair of scissors embedded in his chest. When the police arrived, they found a bloody wallet without any money in it between Ralph’s legs. There was no sign of a forced entry; however, the living room furniture had been knocked over. A .38 revolver was found under a cushion behind a footstool and a bloody knife blade was found under the cushion of an easy chair. A small file box next to that chair had been opened and contained a latent fingerprint. The light in Ralph’s bedroom was on and the bed clothes had been pulled back revealing a blood smear on the mattress. The cord to the telephone had been pulled out from the wall. Desk drawers were open and clothes were strewn about the bedroom. A pair of bloodstained khaki pants was also in the bedroom. Bloodstains were prominent around the kitchen sink, 'including the faucet handles. A Derringer .22 caliber pistol lying on the kitchen table had blood on its handle. Leroy testified that both guns were owned by his brother, but Ralph did not keep the .38 revolver loaded. When Leroy returned later to clean his brother’s home, he found in the bedroom one of the two eviction notices which he had attached to the Petitioner’s trailer the day before. Dr. Joseph Vogel performed the autopsy on Ralph’s body. The stab wound to his chest was the cause of death because the scissors penetrated his aorta; Ralph in essence bled to death. He also had five other wounds to the neck and chest areas. He had two neck wounds which would have been inflicted by a knife blade or scissors. One penetrated to the bone under the chin, but both could have been inflicted before the fatal chest wound. The doctor testified there was no indication that Ralph lost consciousness before his death. Michael Ramseur testified he had sold crack cocaine to the Petitioner on numerous occasions. On a Saturday morning in January 1993, Petitioner tried to sell Ramseur personal property in exchange for crack. Petitioner told Ramseur that he knew he could get money out of “that landlord” and suggested that Ramseur rob the man since Petitioner would be recognized. Ramseur refused. However, the next day Petitioner returned to buy crack and had a roll of money which included five or six $100 bills. Petitioner’s cousin, Kenneth Berry, lived next door to him. He testified that Petitioner came to his house sometime between 11:30 p.m. on Saturday, January 23, and 1:00 a.m. on Sunday, January 24. Petitioner was drunk and tried to sell Berry his army jacket in order to get money. Berry sent him away. Berry did not see any cuts on the Petitioner’s hand. Around 8:30 a.m. on January 24, Petitioner visited Doug Propst and repaid him $100. While the two were smoking crack, Petitioner laid out a large number of $100 bills on a counter. Franki Bryson also saw the Petitioner on a Sunday morning in January. Petitioner asked her to buy drugs for him and gave her $100 bills for the purchase. She testified that the Petitioner’s hand had been cut. Kevin Templeton testified the Petitioner told him about the robbery. Petitioner said he had only meant it to be a robbery but had “got carried away.” Petitioner also told Templeton he had gotten almost $5,000 in the robbery. Testimony was taken from a serologist at the trial. North Carolina State Bureau of Investigation (SBI) Special Agent El-well testified that blood on the knife handle, the Derringer pistol, mattress, Petitioner’s army jacket and blue jeans was consistent with Petitioner’s blood. Blood from the khaki pants, knife blade and left sleeve of the Petitioner’s jacket was consistent with Ralph’s blood. SBI Agent Boo-dee analyzed the DNA content of the evidence received from Agent Elwell. The bloodstains from the knife blade and the army jacket matched samples taken from Ralph. The bloodstain from the mattress matched the blood sample taken from the Petitioner. The jury found the Petitioner guilty of first degree murder on the basis of premeditation, deliberation and malice and on the basis of the felony murder rule. He was also found guilty of robbery with a dangerous weapon. During the sentencing phase of the trial, the State presented no additional evidence. Petitioner’s attorneys called the chief jailer at Catawba County Jail where the Petitioner had been incarcerated for nine months prior to trial. He testified the Petitioner had caused no problems, had been in jail previously and had demonstrated an ability to conform to prison life. Dr. Jerry Noble was retained by defense counsel as an expert clinical and forensic psychologist. Dr. Noble conducted testing on the Petitioner and interviewed him four to five times. He reviewed the Petitioner’s medical records from Dorothea Dix Hospital as well as investigative reports. He described the Petitioner as a quiet and friendly person who made no excuses. Sentencing Transcript, dated November 1, 1993, at 11-12. When asked difficult questions about his life, he answered in a matter-of-fact manner without showing emotion. Id. This is often the case with adults who were abused as children. Id. Petitioner told the doctor about his family and background. His mother, whom he did not meet until he was 11 years old, turned he and his brothers over to foster care. Id., at 13. From the ages of two until eight, Petitioner was in foster care where he was severely physically abused by the foster father. Id., at 14. He remembered being whipped the first day he arrived in their care and was repeatedly whipped by his foster father with a bull whip. Id. On one occasion, the foster father required Petitioner and his brother to bullwhip each other while he watched. Id. He also forced the brothers to fight each other while he watched. Id. Petitioner recalled being pulled from sleep and bull-whipped. Id., at 15. In addition to such sadistic behavior, the foster father, who drank, sometimes made the Petitioner eat food from the floor. Id. He was abnormally strict and on one Christmas did not provide the children with any presents. Id. When school authorities noticed the Petitioner’s wounds and scars from the bullwhip, he and his brother were removed from this home and placed in an orphanage. The foster parents were criminally charged. Petitioner then had sporadic times when he lived with one or the other of his biological parents. Id., at 16. However, he never lived with either parent long enough to establish bonding. Id. As a result, in addition to being severely physically and psychologically abused, Petitioner received no nurturing and thus was unable to form normal attachments to people. Id., at 25. Yet, Petitioner did tell Dr. Noble that sometimes when he watched television programs he would become sad and cry uncontrollably. Id., at 17-18. This occurred because the program often involved close family relationships which he had never experienced. Id. Dr. Noble described this as a “bind” for the Petitioner because although he craved relationships, he was afraid of people. Id., at 25. Petitioner had average grades but dropped out of high school shortly before graduation as the result of a disagreement with his mother. She insisted he work during the time when he was to play on the high school baseball team. Id., at 19. As a result, he simply dropped out of school and never completed his formal education. Id. Petitioner was hospitalized for some time when he was two years old as a result of ingesting kerosine. Id. He had been in several automobile accidents, one of which resulted in a period of unconsciousness. Id., at 20. He also had a history of migraine headaches during youth and continued to have high blood pressure. Id. He had permanent scarring from the whippings. Id. Although Petitioner admitted using alcohol and crack cocaine, he minimized his addiction problems. Id., at 21. Dr. Noble testified that in the year prior to this incident, Petitioner had been using drugs and alcohol heavily and this substance abuse elevated his pre-existing chronic paranoia disorder. Id., at 23. He thought people in general would like to see harm come to him. Id. However, Petitioner described Ralph as a fine man and a friend. Id., at 24. Sometimes he and Ralph watched television together. Id. Ralph occasionally loaned him money or let his rent go for awhile. Id., at 26. Petitioner became dependent on him and thought of him as safe because Ralph was tolerant of him and responded to his needs such as allowing extensions on the rent. Id., at 26-27. Over time, Ralph had become a father figure to the Petitioner; not in the traditional sense, but in the manner that an adult who had been severely abused as a child might think of a father. Id. Petitioner’s attachment to Ralph and his drug addiction caused their relationship to be emotionally charged. Id., at 28. Petitioner was diagnosed by Dr. Noble with three psychiatric disorders: paranoia; mixed substance abuse and mixed personalty disorder. Id., at 33-34. Petitioner also had child abuse syndrome as a result of the extreme physical abuse he had sustained. Id. Dr. Noble opined the defendant had diminished capacity to know right from wrong and to conform his behavior to social norms. Id., at 35. He described Petitioner as a “type H” offender, one frequently thought of as insane and requiring anti-psychotic medication. Id., at 30. Petitioner suffered from persecution delusions and believed he had premonitions. Id., at 31. He also suffered from significant memory problems. His personality disorder was best described by stating that he is paranoid but also avoidant; that is, he is a loner but craves contact with people. Id., at 34. Yet he is unable to seek out and maintain relationships. Id. Due to all these problems, Dr. Noble opined that Petitioner had expressed both guilt and remorse although not in a traditional manner. Id., at 36. Although he could not directly admit wrongdoing due to his severe abuse as a child, he was remorseful and nostalgic about Ralph. Id. His substance abuse had further diminished his capacity to know right from wrong. Id., at 37. At the time of the murder, Petitioner had been abusing cocaine and alcohol for over 20 years. Id., at 38-39. At the time of the murder, his behavior was fueled by psychosis and intoxication, including paranoid, distortions. Id., at 45. He had compulsive behaviors coupled with a diminished capacity to control his impulses. Id. Dr. Noble was not able to speak with Petitioner’s mother or other family members because Petitioner refused to give him permission to do so. Id., at 39. “He expressed a desire to me not to involve his family in these circumstances.” Id. Petitioner had paranoid delusions that if his family were questioned, or even attended the trial, they would be subjected to retaliation. Id., at 49. As a result, he insisted they not attend the trial and not be involved. Id. This protective but paranoid concern was especially strong for his brother due to the abuse they had suffered together as children. Id. (“[H]e was not willing to tolerate them in the courtroom and deal with his fear that they would somehow be retaliated against, and so rather than tolerate that fear his policy was he was asking them not to come. And, ... I view that with consistency with paranoid pathology.”). Petitioner’s trial counsel argued that mitigating factors outweighed aggravating factors and urged the jury to return a verdict of life imprisonment. The jury found the following mitigating factors: 1. The capital felony was committed while the Petitioner was under the influence of mental or emotional disturbance; 2. The capacity of the Petitioner to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired; 3. The Petitioner suffered from an alcohol condition at the time of the offense; 4. The Petitioner suffered from a drug abuse condition at the time of the offense; 5. The Petitioner did not have the benefit of treatment or counseling for alcohol abuse; 6. The Petitioner did not have the benefit, of treatment for drug abuse; 7. The Petitioner from an early age was a ward of the Department of Social Services; 8. Petitioner did not know his mother until he was 11 years old; 9. Petitioner did not know his father until he was 8 years old; 10. Petitioner never had a responsible adult male role model to guide him in his behavior; 11. Petitioner’s father was married several times and never provided a stable home environment for the Petitioner; 12. Petitioner was deprived of companionship, leadership and role model in the person of his father at a critical time in his life; 18.Petitioner’s father was significantly absent from Petitioner’s life during his developmental years; 14. Petitioner’s father was not a proper role model and offered no guidance to his young son; 15. Petitioner’s mother provided no guidance to her young son during his childhood; 16. Petitioner was abused by his foster father and others during his childhood; 17. Petitioner suffered from a paranoid disorder; 18. Petitioner was a person in chronic emotional pain and used drugs to make him feel better; 19. Petitioner suffered from a mixed personality disorder; 20. Petitioner was a victim of child abuse syndrome; 21. Petitioner did not want to die; he wanted to live, even if incarcerated in prison under a life sentence; 22. After 8 years of age, Petitioner was raised in an orphanage; 23. Petitioner was whipped repeatedly by his foster father "with a bullwhip; 24. Petitioner was made to whip his brother and was himself whipped by his brother; 25. Petitioner was made to eat food off of the floor under the kitchen table; 26. Petitioner was “grounded” for as long as six weeks at a time while in foster care; 27. Petitioner never bonded with either of his biological parents; 28. Petitioner desired a normal life as reflected by situation comedies shown on television; 29. Petitioner suffered from tension headaches in his youth due to stress; 30. Petitioner presently suffered from migraine headaches; 31. Petitioner had been an alcohol abuser since his teens; 32. Petitioner had been a drug abuser since his teens; 33. Due to his previous use of crack cocaine, the Petitioner was acting under a compulsion at the time of the incident; 34. Petitioner had a diminished capacity to conform his behavior to social norms at the time of the offense. Id., at 112-117; Sentencing Issues and Recommendation as to Punishment. Despite the finding of a significant number of mitigating factors, the jury did not unanimously find that the mitigating factors outweighed the aggravating factors and the death penalty was imposed. Id., at 126. The conviction and sentence were affirmed on direct appeal. Petitioner’s current attorneys subsequently filed a motion for appropriate relief in which it was claimed that trial counsel were ineffective during the sentencing phase of the trial and Petitioner was incompetent to participate in the sentencing phase. Superior Court Judge Forrest A. Ferrell conducted a hearing on the motion which took almost a full week. Petitioner again called Dr. Noble as an expert witness. The doctor reiterated Petitioner’s instructions not to involve his family and testified that as a result, “clearly there had been a narrow body of information gleaned because those efforts had been influenced by Mr. Frye’s wishes.” Transcript of Hearing on Motion for Appropriate Relief, at 135 [Hearing Transcript]. However, Dr. Noble was of the opinion that other information, such as records from the Department of Social Services, should have been produced by trial counsel for his review. Id., at 135-36. It was unusual, based on his experience in capital cases, for the “starting data base to be as small as it was on this case.” Id., at 137. He also advised trial counsel by letter that due to Petitioner’s disorders, he should not be allowed to make decisions concerning whom should be called as witnesses during the mitigation portion of the sentencing trial. Id., at 145. “His wish to accept capital punishment is probably related to [an] aspect of child abuse syndrome, namely to view himself as to blame and as deserving of punishment .... ” Id., at 151. In Dr. Noble’s opinion, he was retained too late in the course of the litigation to be able to establish a trusting relationship with the Petitioner. Id., at 158. This impacted his ability to obtain information from the Petitioner. Id. However, Dr. Noble admitted that he agreed to take the case despite the time parameters. Dr. Noble did not receive preparation from trial counsel for his testimony. In fact, he made the outline of the questions to be asked. Id., at 160. Nonetheless, he agreed that the mitigating factors submitted to the jury reflected his testimony, although he did not feel the jury’s answers to those issues were consistent with his testimony. Id., at 170-71, 211. In Dr. Noble’s opinion, the Petitioner was very limited in his ability to assist trial counsel during the sentencing phase. Id., at 208. Petitioner’s attorneys presented the testimony of Dr. Claudia Coleman as an expert during the hearing. She testified that Petitioner did not want his family to testify during the hearing on the motion for appropriate relief. Id., at 398. “He certainly realizes that there is a need for them to be here, at least based on what his counsel has presented to him. But his emotional response to it is that it is very, very difficult and that he really wishes they weren’t here.” Id., at 398-99. Dr. Coleman also acknowledged that on one occasion she had testified in a capital murder case in which her testimony was the only evidence presented on the issue of mitigation. Id., at 412. Tom Portwood, one of Petitioner’s trial counsel, was called to testify during the hearing on the motion for appropriate relief. Ted Cummings was lead counsel during the trial and Portwood worked primarily on the sentencing phase. Id., at 51. Because the State did not initially decide to seek the death penalty, he was not appointed until late April 1993. Id., at 53. When he was appointed, Cummings told him that Petitioner did not want his family contacted and did not want them to be involved in the mitigation portion of the trial. Id., at 54. In fact, Petitioner did not want to present any evidence in support of mitigation but the attorneys were ultimately able to convince him to allow a psychologist to testify. Id. Upon entering the case, Portwood felt it was most important to convince Petitioner to have a psychological evaluation. Id., at 57. Portwood thought it extraordinary that an individual facing the death penalty did not want to present mitigating evidence. Id., at 55. In fact, he had never had a client in that situation who told him not to argue for the defendant’s life. Id. Portwood described Petitioner as a “genuinely nice person” and found him “cooperative up to a point.... He didn’t want to present mitigating factors because if he was found guilty he felt like he would be, in his words, safer on death row than in the general population. And I found that to be an illogical response.” Id., at 58. Petitioner believed that if he were placed in the general prison population, he would kill himself or be killed by another inmate. Id., at 107. Thus, he concluded he would live longer on death row. Id. On Portwood’s motion, the Superior Court ordered that Petitioner be evaluated at Dorothea Dix Hospital, a state facility. The evaluation was completed in late July 1993 and in Portwood’s opinion, it raised sufficient issues to warrant an application to the court for an independent evaluation by a defense expert. Id., at 67. Portwood experienced difficulty in locating a forensic psychologist willing to take the case. Id., at 69. Dr. Noble was appointed on October 19, 1993, and his role was to establish the groundwork for a diminished capacity defense and mitigation factors. Id., at 76. Portwood testified that even on the eve of the trial Petitioner had not grasped the seriousness of his case. Id., at 85. “I also found it somewhat uncommon, even during the pendency of the trial, that Ronnie seemed to have less of a sense of the importance of what we were doing.” Id. “I almost had the feeling that Ronnie was letting Ted and me present mitigating factors because he didn’t want to hurt our feelings.” Id., at 88. In fact, during his evaluation at Dorothea Dix Hospital, Petitioner told the psychiatrist that he wanted to die. Id., at 106. Petitioner remained adamant that his family not be involved throughout the trial. Id., at 108-09. Portwood felt he could not ethically contradict his client’s instructions. Id. Thus, the attorneys were forced to use Dr. Noble as the mitigation evidence. Id. Portwood, who is now a recovering alcoholic, testified that during this time period he was consuming a approximately 12 ounces of alcohol each day. Id., at 98-99. He never drank until he went home at night. Id. His normal work habits were to go to a health club each morning before work and to arrive at his office by 7:00 a.m. Id., at 98. During the trial, he and co-counsel worked after court ended each day but he was always in bed no later than 10:00 p.m. Id., at 99. So he consumed 12 ounces of alcohol between the time he got home and the time he retired. Id. Port-wood did not believe that consumption affected his performance at trial. Id., at 119. He never consumed alcohol during the work day and never performed any work on the case when he had consumed alcohol. Id., at 119-20. During the time when Portwood was drinking, he successfully defended a defendant accused of a double homicide who received a life sentence rather than a death sentence. Id. He defended another capital case in which the defendant was convicted of voluntary manslaughter and received a 52 year sentence. Id., at 121. He defended three other capital defendants who received life sentences during the time when he was drinking. Id., at 122. In each of those cases, his responsibility was the mitigation phase of the trial. Id. Thus, prior to the Petitioner’s trial, Portwood had tried six capital cases and in only one of them was the death penalty imposed. Id., at 123. Petitioner’s other trial counsel, Ted Cummings, also testified at the hearing. He reiterated the Petitioner was adamant in his refusal to call family members as mitigation witnesses. Id., at 470-72. Until they were able to persuade him to use Dr. Noble, Cummings felt they were at an impasse with their client. Id. However, they reached a compromise by calling Dr. Noble. Id. Cummings also testified that he “never saw Mr. Portwood’s professional demeanor or behavior affected by the consumption of alcohol, if in fact he was consuming alcohol during the course of the trial.” Id., at 477 (emphasis added). Petitioner presented fifteen witnesses during the hearing, including family members who provided information about how they would have testified had they been called during the mitigation phase of the trial. Judge Ferrell found Petitioner’s trial counsel were not ineffective during the sentencing phase. Noting that at trial Dr. Noble did not testify the Petitioner was incompetent, he also found Petitioner was competent to participate in the sentencing phase. The Supreme Court of North Carolina denied Petitioner’s petition for a writ of certiorari. II. STANDARD OF REVIEW Section 2254 of Title 28, United States Code, provides: 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. 28 U.S.C. § 2254(d). The Fourth Circuit has recently interpreted this language. [Sjubsection (1)[ ] prohibits] the issuance of the writ unless (a) the state court decision is in “square conflict” with Supreme Court precedent which is controlling as to law and fact or (b) if no such controlling decision exists, “the state court’s resolution of a question of pure law rests upon an objectively unreasonable derivation of legal principles from the relevant supreme court precedents, or if its decision rests upon an objectively unreasonable application of established principles to new facts. In other words, habeas relief is authorized only when the state courts have decided the question by interpreting or applying the relevant precedent in a manner that reasonable jurists would all agree is unreasonable.” Fitzgerald v. Greene, 150 F.3d 357, 362 (4th Cir.), cert. denied, 525 U.S. 956, 119 S.Ct. 389, 142 L.Ed.2d 321 (1998) (quoting Green v. French, 143 F.3d 865, 870 (4th Cir.1998)). III. DISCUSSION A. Ineffective assistance of counsel during the sentencing phase of Petitioner’s trial. Petitioner’s ineffective assistance claims are based on three grounds: (1) trial counsel failed to investigate adequately; (2) Mr. Portwood’s alcohol addiction caused him to render ineffective assistance; and (3)Petitioner was incompetent to assist in his defense during the sentencing phase of the trial. 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. “A court’s review of counsel’s performance is ‘highly deferential.’ Indeed, courts must afford a strong presumption that counsel’s performance was within the wide range of professionally competent assistance.” Williams v. Taylor, 163 F.3d 860, 866 (4th Cir.1998), cert. granted, — U.S.-, 119 S.Ct. 1355, 143 L.Ed.2d 516 (1999). Judge Ferrell made the following findings: There was no problem of communication with the defendant. He understood the nature of the charges against him and that it could lead to the death penalty, and in the opinion of Cummings, he was able to assist in his defense. However, the defendant forbade his trial counsel from contacting his family members to dig into matters that his trial counsel considered appropriate. His counsel during a number of conferences related to the defendant their view that family members, friends and associates should be called to testify and be present during the trial. But, from the outset the defendant told Cummings that he did not care to testify or speak on his own behalf, which the defendant later acknowledged on the record at trial before the Presiding Judge. Exhibit 2, Order, attached to Petitioner’s Response to Respondent’s Motion for Summary Judgment and Petitioner’s Memorandum in support of Petitioner’s Motion for Summary Judgment, filed April 23,1998, at 8 [Petitioner’s Response]. 1. Claims of failure to investigate. Petitioner claims both that counsel inadequately investigated mitigating factors and they were ineffective for abiding by their client’s instructions not to involve family members. As soon as Portwood became involved in the case in late April, he tried to persuade Petitioner to allow mitigation evidence to be presented. The first step along this path was Petitioner’s agreement to a psychiatric evaluation at Dorothea Dix. Two months after Portwood was appointed, Petitioner was admitted to that hospital for an evaluation. This evaluation provided Portwood with additional information which justified a request for a separate evaluation. Moreover, the Dix report contained information which was used by counsel during the mitigation phase of the trial. Exhibit 1, Discharge Summary from Dorothea Dix Hospital, attached to Petition. The report referred to Petitioner’s alcoholism and drug addiction, both in the past and at the time of the offense. Id. It recounted his medical history and past criminal history which included three prior convictions and imprisonment. Id. Abuse from the age of two was reported from his foster parents, including being whipped with a bullwhip. Id. The examiner spoke with the Petitioner’s brother who confirmed the child abuse and reported that Petitioner “gets along well with people but has a quick temper when he is high on drugs.” Id. Dr. Noble criticized counsel for not providing him with medical, school and Social Services records but acknowledged receipt of the report arid “a stack” of documents from Dorothea Dix. Dr. Noble also admitted Petitioner did not want his family involved although permission was given for the doctor to speak with the brother. Dr. Noble wrote to counsel in order to assist them if they choose to ask for a continuance of the trial. Hearing Transcript, at 142. But he acknowledged such a decision was for counsel. Id. Dr. Noble testified that the lack of information from counsel “might” have constrained his ability to show mitigating factors. Id., at 150. Yet, he admitted the jury found 34 mitigating factors and noted their findings were “overshadowed by the fact that they found the mitigating factors didn’t matter.” Id. And, while he criticized counsel for his late retention, Dr. Noble accepted the appointment and gave no indication either at trial or the hearing that he was unprepared or unable to render a competent evaluation and opinion. In fact, he admitted that after reviewing the supplemental information provided by current counsel, his diagnosis of the Petitioner did not change. Id., at 162. The doctor also testified that, “My testimony is really that it would be helpful to the attorneys themselves and to the defendant if they were — if they would retain a mental health consultant earlier.” Id., at 209. As to his performance, additional time would have helped him develop a relationship with the Petitioner. Id. Dr. Noble did not testify either at the trial or the hearing that his evaluation was incomplete as a result of insufficient information. The undersigned therefore concludes that counsel adequately conducted pretrial investigation concerning mitigation. Petitioner also argues that had counsel spoken with his family members, they would have uncovered additional evidence in mitigation and would have concluded it was necessary to call them as witnesses. With respect to investigating mitigating evidence, counsel’s performance is deficient if he fails to make a reasonable investigation for possible mitigating evidence. In the context of whether an attorney’s investigation into matters that might aid his client constitutes a deficient performance, the Supreme Court has said: [Strategic choices made after less than complete investigation are reasonable’ precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically upon such information.... [WJhen a defendant has given counsel reason to believe that pursuing certain investigations ivould be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. Matthews v. Evatt, 105 F.3d 907, 919-20 (4th Cir.1997) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052) (emphasis added) (other citations omitted). Petitioner was adamant that his family not be involved in the trial. “Although the decision to introduce mitigating evidence is a nonfundamental right which is waivable by the defense attorney on the defendant’s behalf, petitioner here actually waived investigation and presentation of mitigating evidence himself after conferring with counsel.” Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir.1999) (citations omitted). Thus, it was not ineffective assistance of counsel to fail to interview family members or to present them as witnesses. Id.; Sexton v. French, 163 F.3d 874, 887 (4th Cir.1998), cert. denied, — U.S.-, 120 S.Ct. 139, 145 L.Ed.2d 118 (1999) (“[Tjrial counsel’s alleged failure to secure [defendant’s] consent to present certain mitigating evidence at sentencing does not render trial counsel’s performance constitutionally ineffective.”). Moreover, it cannot be overlooked that Portwood convinced Petitioner to undergo an evaluation at Dorothea Dix Hospital. Then, he and Cummings convinced Petitioner to allow Dr. Noble to testify during the sentencing phase of the trial. The information which would have been provided by family members was placed before the jury by Dr. Noble. And, “[ajlthough counsel has the obligation to conduct a reasonable investigation even if the defendant is reluctant to cooperate,” trial counsel here did conduct a reasonable investigation. Matthetos, supra. It may be true, as Mr. Portwood acknowledged during his testimony, that it is always best to have a defendant’s mother ask a jury to spare her child’s life. However, Petitioner made an informed decision after consultation with his attorneys. Wallace, supra. The efforts of his current attorneys to avoid the death penalty by casting aspersions at trial counsel’s performance do not “apply[] a heavy measure of deference to counsel’s judgments,” as is required. Matthews, supra. Counsel also argue trial counsel had a duty to present mitigating evidence through Petitioner’s family despite his wishes. They produced an expert witness who testified that trial counsel failed to inform the court they had reached an impasse with their client on the issue of mitigation evidence, thereby failing to make a record thereof. In his opinion, trial counsel were then obligated to follow the court’s instructions on this score. Hearing Transcript, at 230-32. However, this opinion is contrary to North Carolina and federal law. Normally, the responsibility for tactical decisions, such as the type of defense to present and what witnesses to call, “rests ultimately with defense counsel.” However, as we have said, “when counsel and a fully informed criminal defendant client reach an absolute impasse as to such tactical decisions, the client’s wishes must control; this rule is in accord with the principal-agent nature of the attorney-client relationship.” In Ali we stated that when such impasses arise, defense counsel should make a record of the circumstances, the advice given to the defendant, the reasons for the advice, the defendant’s decision, and the conclusion reached. State v. White, 349 N.C. 535, 567, 508 S.E.2d 253, 273 (1998), cert. denied, — U.S.-, 119 S.Ct. 2376, 144 L.Ed.2d 779 (1999) (quoting State v. Ali, 329 N.C. 394, 404, 407 S.E.2d 183, 189 (1991)) (other citations omitted). Here, trial counsel testified that, in their opinion, they were not at an impasse because Petitioner agreed to allow Dr. Noble to testify and through his testimony, they were able to present mitigation evidence. Trial counsel made the decision to present mitigating evidence through the psychologist and to abide by the Petitioner’s desires concerning his family. State v. McDowell, 329 N.C. 363, 381, 407 S.E.2d 200, 210 (1991) (Giving deference to a client’s wishes is not ineffective assistance where counsel did not abdicate his role as effective counsel.). Nor does the undersigned find there was an “absolute impasse.” State v. Wilkinson, 344 N.C. 198, 210-12, 474 S.E.2d 375, 381-82 (1996). Assuming arguendo that an impasse existed, counsel followed Petitioner’s instructions as required by state case law. White, supra. As noted previously, “Failure to present particular mitigating evidence often leads to claims that counsel should have introduced such evidence or investigated further [while] the introduction of evidence that the jury does not credit or that the state turns to its advantage leads to ineffectiveness claims also.” As a result, we have held that “[t]he best course for a federal habeas court is to credit plausible strategic judgment.” ... [Petitioner’s] counsel indicated that his trial strategy was to introduce evidence of [Petitioner’s] background through Dr. [Noble] rather than people who had not seen [Petitioner] in years. Counsel believed that Dr. [Noble] would give the evidence added significance while simultaneously laying the foundation for his mental assessment. We must respect this reasonable trial tactic. Wright v. Angelone, 151 F.3d 151, 162 (4th Cir.1998) (quoting Truesdale v. Moore, 142 F.3d 749, 755 (4th Cir.1998) and Bunch v. Thompson, 949 F.2d 1354, 1364 (4th Cir.1991)). Moreover, the “ ‘reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.’ ” Thomas v. Taylor, 170 F.3d 466, 471 (4th Cir.), cert. denied, — U.S.-, 119 S.Ct. 2361, 144 L.Ed.2d 254 (1999) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). Counsel did not speak with or call family members as witnesses in deference to Petitioner’s wishes. Nonetheless, the information they would have provided was presented through Dr. Noble’s testimony. Petitioner’s argument that counsel failed to adequately investigate “essentially comes down to a matter of degrees. Did counsel investigate enough? Did counsel present enough mitigating evidence? Those questions are even less susceptible to judicial second-guessing.” Kitchens v. Johnson, 190 F.3d 698, 703 (5th Cir.1999). Finally on this issue, Petitioner claims that if certain witnesses, primarily family members, had been called during the sentencing phase there is a reasonable probability that the jury would not have imposed the death sentence. Although the undersigned has concluded that counsel were not ineffective for failing to present such witnesses, this claim is addressed for purposes of finality. Petitioner’s foster father, Steven Ford, testified at the hearing that Petitioner’s biological mother simply gave her children to him and his wife. Ford testified he was an alcoholic at the time and could not handle children. He did not remember whipping the children although his wife would show him the wounds the next morning. Although he did not remember doing such things, he acknowledged “it would take a beast to do that.” David Frye, Petitioner’s brother, testified that Ford was nice enough until he drank and “then he went crazy.” He testified that sometimes Ford would make the boys fight each other until one of them began bleeding. About half of the days in a month, the boys were beaten. He described finding Petitioner as a “a bloody pulp.” The next day the school authorities noticed his wounds and the boys were removed. When they were taken from the Fords, they were sent to separate institutions until they went to live with their biological father. Petitioner’s stepmother, Carline, testified at the hearing that after the foster parents were arrested, Social Services sought to place the boys with their biological father, Benson Frye, because their mother would not take them. She testified that within a month of their coming to live with them, Benson began to beat her, sometimes in front of the children. This terrified them and they “were running around like little chickens.” Carline was beaten by her husband for three years before she finally left. When she returned to remove her belongings, the boys were living in squalor without electricity or water. After his divorce from Carline, Benson married Shirley and they had a daughter, Angie, who is sixteen years younger than Petitioner. Angie testified that she and Petitioner were close and remained so. Angie said Benson beat her mother and sometimes made the children watch. Shirley testified that Benson had never wanted the boys to live with him and after they went to live with their mother, he never saw them. Petitioner’s mother, Carolyn, testified that her husband left her after the birth of their last child. She admitted that she gave the children away and did not see them until Social Services removed them from Benson’s home. She testified that had she been called, she would have begged the jury for her son’s life. Petitioner’s maternal aunt testified that he was hospitalized for five days as a two year old after drinking kerosene. Cynthia Maxwell is a mitigation specialist who testified at the hearing. She recounted details of how Carolyn gave her children away to complete strangers with no remorse or emotion. She also testified that a local grocer had been feeding the boys when they lived with Benson because Benson provided them with no food or other necessities. She prepared a time-line which would have presented the jury with the details of Petitioner’s childhood. The information to which these witnesses would have testified was presented at trial through Dr. Noble’s testimony. Petitioner, Dr. Noble noted, did not know his father until he was eight years old or his mother until the age of eleven. He testified that Petitioner’s mother had turned the children over to foster care when Petitioner was two years old. He recounted the physical abuse suffered by Petitioner at the hands of Ford, abuse which began the first day the Fords took the children. He described the bullwhip-ping and the fact that Petitioner would be pulled from his sleep to be beaten. He also testified that Ford, who drank often, sometimes made Petitioner eat off of the floor beneath the kitchen table. And, on one occasion, Petitioner described how Ford failed to acknowledge Christmas Day and the boys went without any presents. After removal from the Fords, the boys lived sporadically with one or the other biological parent allowing insufficient time to establish any bonding. Petitioner’s mother made him drop off his high school baseball team to work an evening shift job. This caused Petitioner to drop out of school altogether. Noble testified that Petitioner suffered from paranoia, substance abuse, mixed personality disorder and child abuse syndrome. At the time of the murder, Petitioner had a diminished capacity to know right from wrong and his behavior was fueled by psychosis and intoxication. The jury found each of the above to be mitigating factors. In addition, they found Petitioner had never been nurtured or had a parental role model. They found he was in chronic emotional pain and used drugs to medicate that pain. At the time of the murder, they found Petitioner acted under a compulsion due to his cocaine addiction. And they acknowledged that the Petitioner had wanted a normal life and did not want to die. The undersigned concludes that every fact which would have been presented by these witnesses was placed before the jury by Dr. Noble’s testimony. The fact that testimony from family members would have been more poignant is insufficient to show either ineffective assistance or a reasonable probability of a different outcome. Present counsel have proffered [testimony] from [Petitioner’s family members] which, if believed, indicate that they could have provided additional mitigating circumstance evidence if they had been called as witnesses. It is not surprising that they have done so. Sitting en banc, we have observed that “[i]t is common practice for petitioners attacking their death sentences to submit [testimony] from witnesses who say they could have supplied additional mitigating circumstance evidence, had they been called,” but “the existence of such [testimony], artfully [elicited] though they may be, usually provides little of significance.” Such [testimony] “usually proves at most the wholly unremarkable fact that with the luxury of time and the opportunity to focus resources on specific parts of a made record, post-conviction counsel will inevitably identify shortcomings in the performance of pri- or counsel.” ... “The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel.” Williams v. Head, 185 F.3d 1223, 1236-37 (11th Cir.1999) (quoting Waters v. Thomas, 46 F.3d 1506, 1513-14 (11th Cir.1995)). Contrary to the contentions raised here, Dr. Noble effectively presented the jury with the picture of Petitioner as a “thrown-away” child who never lived with anyone who was not severely dysfunctional. He explained Petitioner’s paranoia and child abuse syndrome by stating Petitioner craved human contact but was terrified of it. He portrayed Petitioner as a young man who cried when he watched television programs because they showed the kind of family he never had experienced. And, Dr. Noble described the relationship between Petitioner and his victim as “emotionally charged” due to the fact that the Petitioner saw Ralph as a father figure. Thus we ask not whether, with the benefit of hindsight, we would have conducted the defense differently. In the wake of a conviction and death sentence such a conclusion “is all too tempting.” Rather we must place ourselves in the shoes of [Petitioner’s] attorneys and ask only whether their choices were objectively unreasonable. Truesdale, 142 F.3d at 753. The choices made by trial counsel concerning these witnesses were not objectively unreasonable. Finally, David Haynes, son of the local chief of police, testified that when Petitioner’s foster father was arrested for child abuse, photographs were taken of the Petitioner as an eight year old which showed the extensive scarring suffered as a result of the whippings. Haynes testified that he would have been willing to testify during the trial and to produce the photograph attached as Exhibit 2 to the Petition. Portwood, it is claimed, had no idea that such photographs existed but should have discovered them during pretrial investigation. Motion for Appropriate Relief, at 81. However, this does not demonstrate[ ] that [Petitioner’s] sentencing counsel was constitutionally ineffective. Although counsel should conduct a reasonable investigation into potential defenses, Strickland does not impose a constitutional requirement that counsel uncover every scrap of evidence that could conceivably help their client.... Perhaps such [a photograph] may have assisted [Petitioner], but we cannot say that their failure to undertake such efforts rendered their conduct constitutionally deficient under Strickland. Green, 143 F.3d at 892. 2. Trial counsel’s alcohol addiction. Petitioner also claims that Port-wood rendered ineffective assistance by virtue of his alcohol addiction at the time of the trial. In support of this, Petitioner notes Portwood’s testimony that at the time of the trial he consumed approximately 12 ounces of alcohol daily. Petitioner also notes that “[i]n the period prior to the Frye trial, Mr. Portwood testified that he had been in a car accident as a passenger. His blood alcohol level that night was over a 0.40.” Petition, at 35. Portwood actually testified that 20 months prior to the Frye trial, he had been involved in the accident. Hearing Transcript, at 119. He also testified that his consumption did not impact his performance and he never consumed alcohol during the day or when he was working on the case. Id., 119-20. Petitioner does not state in what manner Portwood’s performance was impaired by his addiction. He does not cite any aspect of his trial which was affected by such addiction. Nor is any legal precedent cited. The sole information offered in support of this claim is the opinion of a proposed expert in capital litigation who testified that he did not believe counsel could perform at a minimal level if consuming 12 ounces of alcohol per evening. That expert, who is not an addiction expert, offered no instance in which he claimed that intoxication impaired trial counsel’s performance. “[U]nder Strickland the fact that an attorney used [alcohol] is not, in and of itself, relevant to an ineffective assistance claim. The critical inquiry is whether, for whatever reason, counsel’s performance was deficient and whether that deficiency prejudiced the defendant.” Berry v. King, 765 F.2d 451, 454 (5th Cir.1985); Caballero v. Keane, 42 F.3d 738, 740 (2d Cir.1994); Young v. Zant, 727 F.2d 1489, 1492-93 (11th Cir.1984); Middleton v. Evatt, 77 F.3d 469 (table), 1996 WL 63038 (4th Cir.1996). Each instance of alleged ineffectiveness has been reviewed by this Court and no failure in performance has been found. The record fails to support any claim that Portwood’s handling of pretrial investigation or sentencing issues was affected by his alcohol consumption. Id. The fact alone that Portwood subsequently admitted t.o having a problem cannot be used as a “post hoc rationalization intended to defeat imposition of the death penalty.” Id., at *8. Petitioner also claims that Judge Ferrell failed to address this issue in his decision. However, the Judge made findings of fact and conclusions of law in support of his determination that neither counsel was ineffective in his performance. The Court “finally determined that [Petitioner] was not entitled to relief.” Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir.), cert. denied, 525 U.S. 1037, 119 S.Ct. 587, 142 L.Ed.2d 491 (1998); Wright, 151 F.3d at 156-57; Carter v. Lee, 1999 WL 1267353 at *5 (4th Cir.1999) (A perfunctory decision is an adjudication). Thus, there is no merit to this claim. Moreover, “[t]he finding that [Port-wood’s] legal work was not adversely affected by his [addiction] ... is entitled to a presumption of correctness in this federal habeas corpus proceedings. We cannot say that the [Superior Court’s] findings, ... are ‘an unreasonable determination of the facts in light of the evidence presented.’ ” Williams v. Taylor, 163 F.3d at 871-72 (citations omitted). 3. Petitioner’s competence during the sentencing phase. During the hearing in connection with the motion for appropriate relief, Dr. Noble testified that Petitioner’s abuse as a child caused him to be reluctant to open up to his attorneys and trust their recommendations. Hearing Transcript, at 144-45. When asked if Petitioner’s refusal to allow mitigation witnesses was a competency issue, he replied, “It was a kind of competency issue, one that’s not recognized as frequently as competency to proceed or stand trial.” Id. Dr. Noble also testified that Petitioner’s refusal to allow mitigation witnesses occurred “because he was acting out some adult manifestation of having been abused as a child, and he was not really — he was not really competent to direct his counsel in that area.” Id. He also opined that the evaluation from Dorothea Dix was only directed at the Petitioner’s competency to stand trial, not his competency to be sentenced. Id., at 208. “I think he was very limited in his ability to assist trial counsel during sentencing. He fell short of knowing intelligently, voluntarily, the standard for his ability to participate.” Id. Dr. Clabe Lynn is the psychiatrist at Dorothea Dix Hospital who was in charge of the Petitioner’s evaluation of competency to stand trial. He testified at the hearing that in his opinion the Petitioner “was competent to stand trial and was able to assist his attorneys and he knew the consequences of what he was charged with and the possible outcome.” Id., at 509. His evaluation and opinion were not limited to the guilt phase of the trial: “I would include the sentencing phase. We don’t break it down. Competency to stand trial includes the entire trial.” Id., at 510. In rendering this opinion, Dr. Lynn was aware that Petitioner did not want his family contacted and thus, was aware he had hesitations concerning mitigation. Id., at 511. However, he was not aware that Petitioner did not want any mitigation evidence placed before the jury. Id. He was not asked and did not testify that this would have changed his opinion concerning competency. Petitioner argues trial counsel should have moved to continue the case to allow additional time for Dr. Noble to persuade him to allow mitigation evidence. He also states trial counsel did not advise the court that the psychologist had raised a competency issue. Thus, it is argued he did not receive full due process and representation. However, Dr. Noble never raised any issue of competency during the trial itself, and at the hearing in connection with the motion for appropriate relief, he testified that the Petitioner understood the charges against him, understood he was being tried for murder, understood he faced the death penalty, had no evidence sufficient to show organic brain disorder, was not retarded, had average intelligence and was able to communicate although he was reluctant to speak about emotional issues. Hearing Transcript, at 196-97. Dr. Noble testified that in October and November of 1993, it was his opinion that the Petitioner was able to cooperate with his attorney, to help in formulating a defense and was competent to stand trial. Id., at 202-03. Dr. Noble’s inconsistent testimony “is not persuasive evidence of [incompetency] because it is nothing but a post hoc rationalization intended to defeat imposition of the death penalty.” Middleton, 1996 WL 63038 at *8. Nor does his revised testimony show Petitioner was not legally competent during the sentencing phase of his trial. Under North Carolina law, no person may be sentenced “when by reason of mental illness or defect he is unable ... to assist in his defense in a rational or reasonable manner.” N.C. Gen.Stat. § 15A-1001(a). “[A] defendant does not have to be at the highest stage of mental alertness to be competent to be tried. So long as a defendant can confer with his or her attorney so that the attorney may interpose any available defenses for him or her, the defendant is able to assist his or her defense in a rational manner. It is the attorney who must make the subtle distinctions as to the trial.” State v. Shytle, 323 N.C. 684, 689, 374 S.E.2d 573, 575 (1989) (emphasis added) (Defendant competent to stand trial and sentencing despite gunshot wound which resulted in brain injury which impaired her emotional responses causing her not to appreciate the seriousness of her situation.); State v. O’Neal, 116 N.C.App. 390, 448 S.E.2d 306 (1994) (No error in judge’s ruling that defendant who was hearing voices and saw “little red men” was competent to stand trial.); State v. Harding, 110 N.C.App. 155, 429 S.E.2d 416 (1993) (Defendant who was using drugs during trial still competent to assist in defense.). Here, despite Petitioner’s reluctance, trial counsel did place mitigation evidence before the jury. There is no competent evidence that Petitioner could not confer with his attorneys concerning defenses or that he could not assist in a rational manner. Moreover, “ ‘habeas relief is authorized only when the state courts have decided the question by interpreting or applying the relevant precedent in a manner that reasonable jurists would all agree is unreasonable.’ ” Fitzgerald, 150 F.3d at 362 (quoting Green v. French, supra). Such is not the case here. B. Errors related to jury selection. 1. Instructions by the court prior to selection. Petitioner takes issue with several statements made by the trial court during the jury selection process. The full text of the statements are set forth below with that portion to which Petitioner objects italicized. After informing the potential jurors that the Petitioner had been charged with first degree murder, the judge made the following comments: [The defendant] has pleaded not guilty. Under the law the fact that he has been charged with this offense is not evidence of guilt. He is not required to prove his innocence. He is presumed to be innocent, and the state must establish his guilt beyond a reasonable doubt. Do each of you understand this? If you do understand this, please indicate that you do by raising your right hand. (All jurors indicated in the affirmative.) If chosen to sit as a juror, will you follow this law and require the state to satisfy you of the defendant’s guilt beyond a reasonable doubt before you vote to find him guilty? Trial Transcript of Jury Selection, at 57 [Jury Selection Transcript] (emphasis added). Based on this exchange, Petitioner claims the court presupposed he would be found guilty. Thus, he claims the court should also have asked jurors whether they would vote to find Petitioner not guilty if the State did not satisfy its burden of proof. The North Carolina Supreme Court addressed this issue and held, “[W]e conclude that no reasonable juror would have interpreted the question as indicating an opinion of the court” concerning Petitioner’s innocence or guilt. Frye, 341 N.C. at 48