PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
JOHN DENNIS DANIELS,
Petitioner-Appellant,
v.
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee.

No. 02-9

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-99-225-3-MU)
Argued: October 29, 2002
Decided: January 10, 2003
Before WILKINSON, Chief Judge, and WIDENER and
KING, Circuit Judges.

Certificate of appealability denied and appeal dismissed by published

opinion. Judge King wrote the opinion, in which Chief Judge Wilkinson and Judge Widener joined.

COUNSEL
ARGUED: Kimberly Candace Stevens, STEVENS & WITHROW,
P.L.L.C., Winston-Salem, North Carolina; Ann Bach Petersen,
GLOVER & PETERSEN, P.A., Chapel Hill, North Carolina, for
Appellant. Edwin William Welch, Special Deputy Attorney General,

DANIELS v. LEE

NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North

Carolina, for Appellee. ON BRIEF: Roy Cooper, Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.

OPINION
KING, Circuit Judge:
In September of 1990, John Dennis Daniels was convicted in the
Superior Court of Mecklenburg County, North Carolina, of capital
murder and multiple related crimes. The jury recommended that Daniels be sentenced to death and the presiding judge imposed the death
sentence. After an unavailing direct appeal process, Daniels unsuccessfully sought post-conviction relief in the courts of North Carolina.
He then petitioned for habeas corpus relief in the Western District of
North Carolina. The district court denied his petition, and Daniels
now seeks to appeal that denial to this Court. As explained below,
Daniels has failed to make a substantial showing of the denial of any
of his constitutionally protected rights. We therefore decline to issue
a certificate of appealability, and we dismiss his appeal.
I.
A.
Daniels was indicted in early 1990 by a Mecklenburg County grand
jury for the strangling death of his aunt, seventy-seven-year-old Isabelle Daniels Crawford. He was also charged with assault with a
deadly weapon against his wife, his son, and a neighbor; with common law robbery; and with the attempted burning of his dwelling. In
rejecting Danielss direct appeal, the Supreme Court of North Carolina summarized the relevant facts underlying the jurys verdict. State
v. Daniels, 446 S.E.2d 298, 304-07 (N.C. 1994). We are unable to
improve on that factual summary, and we here set it forth in haec
verba:
By 3:00 p.m. on 17 January 1990, defendant, John Dennis
Daniels, had consumed two beers. Later, he consumed a

DANIELS v. LEE

fifth of wine and became "somewhat drunk." In the late

afternoon or early evening, defendant went to the home of
his seventy-seven-year-old aunt, Isabelle Daniels Crawford,
to ask for money and to ask if Crawford would permit
defendants wife, Diane, and his twelve-year-old son, Maurice, to stay with Crawford. Defendant was behind on his
rent, and he was having marital problems. Upon arrival at
Crawfords house, defendant asked Crawford for money and
asked her to take in his wife and son. Crawford did not give
defendant any money and told defendant that she intended
to phone his mother. Defendant told Crawford not to call his
mother and then punched Crawford in the mouth, knocking
her to the floor. Defendant, using an electrical cord he
wrapped around his aunts neck three times, strangled Crawford and dragged her body to the back of the house. He
located Crawfords purse, removed $70.00 to $80.00, and
left. In his pre-trial statement, defendant stated, "I dont
know why I killed her. Bills set me off. My lady has got
bills. I tried to kill my lady."
After purchasing some cocaine, defendant walked around
Charlotte and then returned to his home around 10:30 p.m.
At home, he spoke briefly with his wife, Diane, and smoked
some cocaine in their bathroom. After smoking the cocaine,
defendant left the bathroom, holding a hammer. He
approached his wife, who was lying on the bed in their bedroom, and began striking her in the head with the hammer.
A struggle ensued during which defendant lost the hammer.
Responding to defendants wifes cries for help, their son,
Maurice, joined the altercation. The fight moved into the
hallway, where defendant hit his wife on the head with a
kerosene heater. Defendant then chased his wife and son
into the kitchen and den as defendants wife attempted to get
out of the house. Once in the den, defendant got a rock out
of the aquarium and struck Maurice with it; defendant then
found the hammer and hit Maurice in the head with it.
Defendants wife and son were finally able to run out the
front door. Defendant pursued his wife outside and again hit
her in the head with the hammer; he then returned to his
house.

DANIELS v. LEE

The Daniels neighbor, Glenn Funderburke, was aroused

by the commotion and went outside. Funderburke discovered defendants son, Maurice, in his yard and took him into
Funderburkes house. He then phoned the police and went
to defendants house to investigate. Upon entering defendants house, Funderburke noticed flames near defendant.
Defendant, holding a knife, threatened to kill Funderburke
if Funderburke did not leave. Funderburke immediately
returned to his home and again phoned the police.
At about 12:30 a.m., Charlotte Police Officer Thomas
Griffith arrived on the scene, joining two other officers and
a fire truck that had already arrived. Griffith observed the
house on fire. After extinguishing the fire, the firemen
brought defendant from the house and gave him oxygen.
After defendant refused further medical treatment, Officer
Griffith told defendant that he was going to jail for assault.
At about 12:50 a.m., Griffith left the scene with defendant
and proceeded toward the Law Enforcement Center.
In the car, defendant repeatedly urged Griffith to go to
"Mint Street." When Griffith asked defendant why he was
making this request, defendant responded: "I think I might
have killed my aunt." Griffith then changed course slightly,
followed defendants directions, and at 12:55 a.m. arrived at
the house identified by Daniels. After knocking on the back
door and receiving no response, Officer Griffith entered the
home. Inside, Griffith found a trail of blood beginning in a
hallway.
Following the trail to a bedroom, Griffith found Crawfords lifeless body lying face down on the floor, with a cord
wrapped around her neck. A wastebasket was overturned,
and the carpet disturbed; the remaining contents of the
house were intact.
Griffith then took defendant to the Law Enforcement
Center, arriving at 1:15 a.m. After smoking a cigarette and
using the bathroom, defendant was placed in a room and
given a pen and paper, which he had requested. A few min-

DANIELS v. LEE

utes later, defendant returned the paper, requesting that it be

sent to the Governor. On it he had written:
Dear sir
Im not crazy
What I did was premediated! [sic]
Time 1:42 1/18/90
John D. Daniels
I do not want a trial
I do not want my family around
I do not want news report [sic]
Shortly after receiving this letter, Griffith heard a noise in
the room. He entered the room to find defendant on the floor
with the drawstring from his pants around his neck. Another
string was attached to a filing cabinet that was four feet,
three inches high. Defendant was not injured.
At 2:00 a.m., Investigator Robert A. Holl arrived at the
Center and spoke with Griffith. The two men took defendant
to an interview room, and Holl left to investigate the crime
scene. Holl returned between 4:30 a.m. and 4:45 a.m. Holl
advised defendant of his Miranda rights, and at 5:05 a.m.,
defendant waived his rights by signing a waiver form. Holl
proceeded to interview defendant. The interview, which
concluded at 6:00 a.m., yielded a confession that detailed
the events of the night before. After being taken to jail,
defendant was committed to Dorothea Dix Hospital for two
weeks. He was then returned to jail to await trial.
Dr. James Sullivan, the Mecklenburg County medical
examiner and an expert in forensic pathology, performed an
autopsy on Crawford. His examination revealed that Crawford had bled from the nose and mouth, her left eye was
bruised, her lip was cut and bruised, and her nose was broken. There were also two contusions to her frontal scalp.
There were abrasions on the sides and back of her neck and
indications that the victim had been dragged. Crawford also
had bruises on her right arm and hand which were consistent
with defensive-type wounds.

DANIELS v. LEE

Defendants evidence was largely directed to showing a

lack of premeditation and deliberation and an inability to
understand his rights before making his confession. It
tended to show as follows:
Lieutenant G.W. Bradshaw of the Mecklenburg County
Sheriffs Department, the shift supervisor at the intake center on 17 and 18 January, saw defendant at 7:15 a.m. on 18
January when Holl and other officers brought defendant to
the intake center. Pursuant to jail policy, Bradshaw had
refused to accept defendant because of information given to
Bradshaw indicating potential suicidal tendencies. Bradshaw
requested that Public Defender Isabel Scott Day seek an
emergency commitment of defendant to allow for a mental
evaluation. Bradshaw and defendant spoke during the morning, but defendant did not always seem to understand what
Bradshaw was saying. Mrs. Day spoke with defendant in
Bradshaws presence, but at times defendant did not respond
to her.
Dr. William Tyson, a clinical psychologist, testified as an
expert in clinical and forensic psychology. He interviewed
defendant for one and one-half to two hours, administered
psychological tests, and reviewed material from previous
evaluations of defendant. According to Dr. Tyson, defendant
had a chronic and pervasive mixed personality disorder,
marked by unstable moods and behavior. Defendant was
dependent on cocaine and alcohol and had a history of abusing and experimenting with drugs, including amphetamines,
LSD, heroin, and tranquilizers. His substance abuse aggravated his personality disorder. As a result of these problems,
defendants emotional and social development skills were
those of an eleven- or twelve-year-old child. According to
Dr. Tyson, defendants ability to think or evaluate his
behavior would have been compromised to the point of
being "inconsequential."
Psychiatrist John N. Bolinsky, Jr., also testified as an
expert in psychiatry. Dr. Bolinsky had interviewed defendant twice and had reviewed defendants medical records,

DANIELS v. LEE

including records for treatment of alcoholism. Dr. Bolinsky

testified that defendant had an unspecified personality disorder. Based on this disorder and defendants chronic substance abuse, coupled with his use of alcohol and cocaine on
17 January, Dr. Bolinsky testified that defendant would have
been "perhaps paranoid" and extremely impulsive.
According to Dr. Bolinsky, defendants ability to form a
specific intent to kill his aunt "would have been profoundly
impaired, if not in essence absent." Dr. Bolinsky explained
that the combination of defendants psychological problems,
his chronic substance abuse, and his substance abuse on the
day of the slaying would have made defendant impulsive
and paranoid, causing him to act reflexively, without thinking.
Id. After considering the evidence presented during the guilt phase of
his trial, which was conducted in September of 1990, the jury convicted Daniels on all charges.
During the sentencing phase of the trial, the prosecution presented
evidence from two witnesses. First, it offered the testimony of Dr.
Cynthia White, a psychiatrist, who opined that Daniels possessed an
antisocial personality disorder and that, due to extensive drug and
alcohol abuse, he had developed such a tolerance for alcohol and
cocaine that he could react and think while under their influence. Dr.
White also concluded that Daniels killed Ms. Crawford with both premeditation and deliberation. The prosecution also recalled Dr. Sullivan, who testified concerning the trauma that Ms. Crawford had
suffered before she died.
To rebut Dr. Whites testimony, Danielss counsel recalled Dr.
Bolinsky, who testified that it was improbable that Daniels would
have killed Ms. Crawford absent depression and substance abuse. Dr.
Bolinsky explained that Danielss substance abuse was not of the sort
that leads to increased tolerance levels, and that his use of alcohol and
cocaine on the day of the offenses caused him to be mentally
impaired. Dr. Bolinsky concluded that Danielss problems were treatable and that Daniels felt remorse for his actions. His counsel also
presented evidence from several members of Danielss family. Two
of his siblings, John and Mary, testified that they typically noticed a

DANIELS v. LEE

change in Danielss personality and attitude when he was drinking.

His mother testified that Danielss personality changed markedly
when he consumed alcohol, and she advised the jury that her son had
expressed remorse for his crimes.
The jury recommended that Daniels be sentenced to death, and the
judge accordingly imposed that penalty.1 The court also sentenced
Daniels to consecutive terms of imprisonment on his convictions for
assault and for attempting to burn his dwelling, but it arrested judgment on the robbery conviction.
B.
Daniels appealed his convictions and sentence to the Supreme
Court of North Carolina.2 On March 5, 1992, while the direct appeal
was pending, Daniels also filed a Motion for Appropriate Relief (the
"First MAR") in that court.3 On July 29, 1994, the Supreme Court of
North Carolina affirmed Danielss convictions and sentence on the
direct appeal.4 Daniels, 446 S.E.2d at 298. Then, on August 1, 1994,
the court summarily denied the First MAR. State v. Daniels, Order,
506A90-1 (N.C. Aug. 1, 1994). Danielss conviction became final on
January 23, 1995, when the Supreme Court of the United States
denied his petition for certiorari. Daniels v. North Carolina, 513 U.S.
1

In a capital case in North Carolina, the jury hears evidence in the sentencing phase of a trial and makes a binding recommendation to the
judge. N.C. Gen. Stat. 15A-2000(b); see State v. McCollum, 433 S.E.2d
144, 153 (N.C. 1993).
2
Danielss direct appeal bypassed the North Carolina Court of
Appeals. See N.C. Gen. Stat. 7A-27(a).
3
A defendant convicted of a capital crime in North Carolina may seek
post-conviction relief by way of an MAR. An MAR is not identical to
a habeas corpus petition, but it provides an avenue for any attempt to
obtain relief from "errors committed in criminal trials." See N.C. Gen.
Stat. 15A-1401.
4
On August 25, 1994, the Supreme Court of North Carolina granted
reconsideration of its decision in the direct appeal in order to correct a
factual misstatement. The award of reconsideration had no impact on any
of the issues Daniels raised in his direct appeal. See State v. Daniels,
Order, 506A90 (N.C. Aug. 25, 1994).

DANIELS v. LEE

1135 (1995). On December 29, 1995, Daniels filed a second MAR

(the "Second MAR"), this time in the Superior Court of Mecklenburg
County (the "Second MAR Court"). That court, however, dismissed
the Second MAR on February 11, 1997, without conducting an evidentiary hearing. State v. Daniels, Findings of Fact and Conclusions
of Law, 90 CRS 4580 (N.C. Super. Ct. Feb. 11, 1997) (the "Second
MAR Decision"). Thereafter, on May 28, 1998, the Supreme Court of
North Carolina denied certiorari on the Second MAR Decision. See
State v. Daniels, 506 S.E.2d 248 (N.C. 1998).
On May 4, 1999, Daniels filed a motion for discovery, pursuant to
N.C. Gen. Stat. 15A-1415(f), in the Superior Court of Mecklenburg
County (the " 1415(f) Proceeding"). This statute was enacted by the
North Carolina legislature in 1996, and it provides that, upon timely
request, a prisoner convicted of a capital crime is entitled to access
to the complete files of his case from all law enforcement and prosecutorial agencies involved in his prosecution. Because Daniels had
filed his Second MAR before 1415(f) was enacted, and because the
Second MAR was dismissed before Daniels filed the 1415(f) Proceeding, the State contended that he was not entitled to any 1415(f)
relief.
On May 28, 1999, while the parties were still contesting the
1415(f) Proceeding in state court, Daniels sought federal habeas
corpus relief in the Western District of North Carolina. Thereafter, in
April of 2000, the Supreme Court of North Carolina ruled that
inmates convicted of capital offenses, such as Daniels, were entitled
to discovery under 1415(f). State v. Williams, 526 S.E.2d 655, 657
(N.C. 2000). On the basis of the Williams decision, the State capitulated in the 1415(f) Proceeding. Danielss 1415(f) discovery was
completed on January 31, 2001, and, on February 13, 2001, the parties filed a consent order in federal court authorizing Daniels to
amend his habeas corpus petition. Before filing his amended petition,
however, Daniels again sought relief in the Supreme Court of North
Carolina, asserting that his murder conviction and death sentence
were invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000). On
February 22, 2001, the Supreme Court of North Carolina summarily
denied that claim. State v. Daniels, Order, 506A90-3 (N.C. Feb. 22,
2001) (the "Summary Opinion").

10

DANIELS v. LEE

On March 2, 2001, Daniels filed his amended petition for federal

habeas corpus relief, adding his Apprendi claim and a false testimony
claim. The Apprendi claim had been denied in the Summary Opinion,
and Danielss false testimony claim was premised on the evidence he
had obtained in 1415(f) discovery. In its answer to the amended
petition, the State waived any exhaustion requirement on the false testimony claim,5 and it then moved for summary judgment on all of
Danielss claims. On January 19, 2002, the district court concluded
that neither an evidentiary hearing nor further discovery was necessary, and it awarded summary judgment to the State. Daniels v. Lee,
Order, 3:99CV225MU (W.D.N.C. Jan. 19, 2002) (the "Summary
Judgment Order"). Daniels then filed a motion for reconsideration of
the Summary Judgment Order, which the district court denied. Daniels v. Lee, Order, 3:99CV225MU (W.D.N.C. April 3, 2002) (the "Reconsideration Order"). Finally, Daniels filed a timely notice of appeal
from the Summary Judgment Order and the Reconsideration Order,
and he now seeks issuance of a certificate of appealability and reversal of those orders.
II.
In assessing Danielss claims, we must adhere to the principles
established by the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"). Under AEDPA, a federal court may award habeas
corpus relief with respect to a claim adjudicated on its merits in a
state court proceeding only if the state courts adjudication resulted
in a decision that was: (1) "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States"; or (2) "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). As the Supreme
Court has explained, a state court adjudication is "contrary to" clearly
established federal law only if "the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law
or if the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts." Williams v.
5

Pursuant to 28 U.S.C. 2254(b)(1), an application for a writ of

habeas corpus shall not be granted unless the applicant exhausted the
remedies available to him "in the courts of the State."

DANIELS v. LEE

11

Taylor, 529 U.S. 362, 413 (2000). A state court decision unreasonably
applies clearly established federal law if it "unreasonably applies that
principle to the facts of the prisoners case." Id.6
Before a petitioner may pursue an appeal from a final order in a
habeas corpus proceeding arising out of a state court conviction, a
"circuit justice or judge" must issue a certificate of appealability
("COA") on the petitioners behalf. 28 U.S.C. 2253(c)(1). Under
AEDPA, a COA "may issue . . . if the applicant has made a substantial showing of the denial of a constitutional right." Id. 2253(c)(2).
In order to satisfy this standard, a petitioner must demonstrate to a circuit justice or judge that "reasonable jurists could debate whether
. . . the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to
proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
III.
Daniels asserts five errors in his conviction and sentence. Specifically, he contends:
(1) that during closing argument in the sentencing phase,
the prosecution improperly referred to the Bible and incorrectly advised the jury that it would not be the ultimate decisionmaker on a death sentence (the "Closing Argument
claim");
(2) that he was deprived of both his right to call a material
6

Significantly, findings of fact by a state court are entitled to a "presumption of correctness," which a petitioner, such as Daniels, must rebut
by "clear and convincing evidence." See 28 U.S.C. 2254(e)(1). Finally,
"even if the state courts determination that there is no constitutional
error was contrary to or an unreasonable application of Supreme
Court precedent, we are not permitted to grant habeas corpus relief
unless we are convinced that the error had a substantial and injurious
effect or influence in determining the jurys verdict." Fullwood v. Lee,
290 F.3d 663, 679 (4th Cir. 2002) (quoting Brecht v. Abrahamson, 507
U.S. 619, 637 (1993)).

12

DANIELS v. LEE

witness during the guilt phase and his right to selfrepresentation (the "Sixth Amendment claim");
(3) that he was unaware of his right to testify in the trials
sentencing phase and that he received ineffective assistance
of counsel regarding his right to testify (the "Right to Testify claim");
(4) that the indictment failed to make the allegations necessary for either the first degree murder conviction or the
death sentence (the "Indictment claim"); and
(5) that the State, in the sentencing phase, presented false
testimony through Dr. White (the "False Testimony claim").
As in many cases involving AEDPA issues, this proceeding
presents an issue of procedural default. On the Closing Argument
claim, Daniels failed to object to the prosecutions closing argument
during the trials sentencing phase, and the Supreme Court of North
Carolina, on direct appeal, ruled that he had thus failed to preserve
any error arising from that argument. Daniels, 446 S.E.2d at 298.
Unless Daniels can show cause and prejudice,7 we are procedurally
barred from considering his Closing Argument claim. Davis v.
Allbrooks, 778 F.2d 168, 174 (4th Cir. 1985). By contrast, Daniels
exhausted his state court remedies on his Sixth Amendment claim, his
Right To Testify claim, and his Indictment claim. Those three claims
are subject, in this proceeding, to the deference mandated by AEDPA
for state court decisions. In particular, the Sixth Amendment claim
was decided on Danielss direct appeal to the Supreme Court of North
Carolina, see Daniels, 446 S.E.2d at 298; his Right to Testify claim
was decided by the Second MAR Court, see Second MAR Decision
at 9-11; and his Indictment claim was decided by the Supreme Court
of North Carolina in its Summary Opinion. See Summary Opinion at
7

To show cause for a procedural default, a petitioner must demonstrate

that the "factual or legal basis for [the] claim was not reasonably available" at the time of the default. Fisher v. Angelone, 163 F.3d 835, 845
(4th Cir. 1998) (internal citations and quotations omitted). He must also
show actual prejudice resulting from his failure to timely object or
present the claim. Waye v. Townley, 871 F.2d 18, 20 (4th Cir. 1989).

DANIELS v. LEE

13

1. Finally, Danielss fifth and final claim, the False Testimony claim,
was never adjudicated on its merits in state court. Indeed, the evidence on which it is premised was only discovered by Daniels in January of 2001, when he completed discovery following the 1415(f)
Proceeding. The State, however, has waived any exhaustion requirement on the False Testimony claim. And because that claim was
never adjudicated in state court, it does not trigger the deference mandate of AEDPA.
IV.
A.
Turning to our assessment of Danielss claims, we first consider his
Closing Argument claim, i.e., his assertion that the prosecution made
a constitutionally defective closing argument to the jury during his
trials sentencing phase. This claim has two prongs: first, Daniels contends that the State violated his Fourteenth Amendment due process
rights by improperly seeking the death penalty on the basis of quotations from the Old Testament of the Bible; and second, he maintains
that the prosecution violated the Eighth Amendment by suggesting
that the jury was not ultimately responsible for the imposition of the
death penalty. Daniels acknowledges, as he must, that he failed to
timely object to either of these alleged errors in the prosecutions
closing argument. While he sought to raise these issues on direct
appeal, the Supreme Court of North Carolina concluded that Daniels
had failed to properly preserve either aspect of the Closing Argument
claim. It therefore reviewed the record only to assess whether the
prosecutors comments "so infected the trial with unfairness as to
make the resulting conviction a denial of due process." Daniels, 446
S.E.2d at 319 (internal quotations and citations omitted).8 In so doing,
the court concluded that the prosecutions closing argument did not
deny Daniels his due process rights.
Having failed to preserve these issues for his direct appeal, Daniels
did not obtain an adjudication on the merits of his Closing Argument
8

When a defendant fails to timely object and properly preserve an issue

for appeal, the Supreme Court of North Carolina reviews the record for
plain error. See Davis v. Allbrooks, 778 F.2d 168, 176 (4th Cir. 1985).

14

DANIELS v. LEE

claim in state court. As a result, we are procedurally barred from considering this claim, unless Daniels can show cause and prejudice for
his failure to preserve the issue by a timely objection. See Davis, 778
F.2d at 174 (citing Wainwright v. Sykes, 433 U.S. 72, 82 (1977)). A
federal court is unable to consider a claim dismissed by a state court
on a procedural ground, unless the petitioner shows cause and prejudice in failing to follow the relevant state procedure. Wainwright, 433
U.S. at 82. In Davis, we held that the Wainwright rule applies when
a state court also discusses the claim on its merits, e.g., in conducting
a plain error review having found a procedural default. 778 F.2d at
176; see also Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001)
("We have held that [a] contemporaneous objection rule . . . bars federal habeas review absent a showing of cause and prejudice. . . .
Moreover, we view a state appellate courts review for plain error as
the enforcement of a procedural default."). Simply put, Daniels has
not made the necessary showing of cause and prejudice. Indeed, Daniels has alleged neither cause nor prejudice with respect to his failure
to timely object to the prosecutions closing argument. We are therefore precluded from considering the merits of the Closing Argument
claim, and we are thus unable, on this claim, to decide that Daniels
has made a substantial showing of the denial of a constitutional right.
Accordingly, we decline to issue a COA with respect to the Closing
Argument claim.
B.
Danielss Sixth Amendment claim has two aspects: (1) his right to
call witnesses during his trial, and (2) his right to self-representation.9
Specifically, Daniels sought to call Isabel Day, a Public Defender in
Mecklenburg County, to testify during the trials guilt phase regarding
his incapacity on the night he committed the offenses for which he
was convicted and sentenced. After his confession on January 18,
1990, Daniels was committed to Dorothea Dix Hospital in Raleigh,
9

The Sixth Amendment provides, inter alia, that: "[i]n all criminal
prosecutions, the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of
Counsel for his defence." U.S. Const. amend. VI. The compulsory process aspect of Danielss "Sixth Amendment claim" is also grounded in
Fourteenth Amendment due process.

DANIELS v. LEE

15

North Carolina. Ms. Day represented Daniels in the commitment proceeding, and she spoke with and observed him for approximately an
hour before his admission to the hospital. During a pre-trial suppression hearing, Ms. Day testified regarding Danielss mental condition
on the night of the offenses. The court, however, refused to allow her
to testify during the trials guilt phase because Grady Jessup, an
Assistant Public Defender who worked with Ms. Day, was one of
Danielss two trial lawyers. In seeking to enable Ms. Day to testify
at trial, Mr. Jessup unsuccessfully sought to withdraw from his representation of Daniels.
Daniels raised these issues in his direct appeal to the Supreme
Court of North Carolina. In deciding them, the court first considered
whether Ms. Day should have been allowed to testify at trial. Daniels,
446 S.E.2d at 315. It began its analysis by recognizing that North Carolinas rules of professional responsibility provide that a "partys
attorney or any other member of the attorneys firm ordinarily may
not testify as a witness." Id. at 312 (citing N.C. Rules of Profl Conduct, R. 5.2). Further, it observed that so long as "witnesses are available who can provide the information sought, [a court can refuse to]
to permit an attorney for a party to testify." Id. Upon reviewing the
record, the court concluded that the "substance of Mrs. Days testimony about defendants behavior was revealed through other testimony." Id. Thus, the Supreme Court of North Carolina deemed Ms.
Days testimony cumulative, because adequate testimony was
presented from other witnesses, and it held that there was no error in
excluding it. Id. Finally, the court concluded that the trial judge had
properly refused to permit Mr. Jessup to withdraw as counsel for Daniels. Id.
In this proceeding, Daniels asserts that his inability to call Ms. Day
as a witness violated his Sixth Amendment right to compulsory process and that the denial of Mr. Jessups motion to withdraw violated
his right of self-representation. We will assess each aspect of the
Sixth Amendment claim in turn.
1.
The Supreme Court has observed that the "right to offer testimony
of witnesses . . . if necessary, is in plain terms the right to present a

16

DANIELS v. LEE

defense, the right to present the defendants version of the facts as

well as the prosecutions to the jury so that it may decide where the
truth lies. . . . The right is a fundamental element of due process of
law." Washington v. Texas, 388 U.S. 14, 19 (1967). The right to call
witnesses is not absolute, however, and it may "bow to accommodate
other legitimate interests." Chambers v. Mississippi, 410 U.S. 284,
295 (1973). In fact, a petitioner "cannot establish a violation of his
constitutional right to compulsory process merely by showing that
[the court] deprived him of their testimony. He must at least make
some plausible showing of how their testimony would have been both
material and favorable to his defense." United States v. ValenzuelaBernal, 458 U.S. 858, 867 (1982).
In this instance, as the Supreme Court of North Carolina observed,
several witnesses had already testified during the guilt phase regarding Danielss mental state on the evening of the offenses. They
included Lieutenant Bradshaw of the Sheriffs Department, who was
present when Ms. Day met with Daniels. According to the Supreme
Court of North Carolina, Lt. Bradshaw "testified that defendant was
[w]ithdrawn and just stared at the floor. He further surmised that
defendant was shaking and possibly . . . in shock. Bradshaw testified
that defendant did not seem to understand what was being said to him
and that he was unresponsive to Mrs. Day." Daniels, 446 S.E.2d at
318. Daniels also presented other witnesses who testified to his incapacity. Thus, because witnesses had testified regarding Danielss
mental status on the evening of the offenses, it was reasonable for the
Supreme Court of North Carolina to conclude that the trial testimony
he sought from Ms. Day was cumulative and not essential to his
defense. See generally United States v. Fuentes-Cariaga, 209 F.3d
1140, 1144 (9th Cir. 2001) ("[T]he right to present a defense is fundamental, but exclusion of evidence reached constitutional proportions
in Washington and Chambers only because it significantly undermined fundamental elements of the accuseds defense." (internal quotations and citations omitted)); Romano v. Gibson, 239 F.3d 1156,
1166 (10th Cir. 2001) (denying habeas corpus relief on compulsory
process claim because defendant had presented evidence on same
subject as witnesss proffered testimony).
2.
Daniels also maintains that the trial courts denial of Mr. Jessups
motion to withdraw as his counsel violated his constitutional right of

DANIELS v. LEE

17

self-representation. Daniels correctly asserts that the Sixth Amendment right to the assistance of counsel includes the right to forego
such assistance and to represent oneself. Faretta v. California, 422
U.S. 806, 814 (1975). In order to show a violation of the right of selfrepresentation, however, an assertion of that right must be (1) clear
and unequivocal; (2) knowing, intelligent, and voluntary; and (3)
timely. United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000).
This prong of Danielss Sixth Amendment claim verges on being
frivolous. One of Danielss two defense lawyers, Mr. Jessup, had
moved to withdraw from the trial so that Ms. Day could testify. And
if the court had granted the motion, Daniels would still have been represented by his other trial attorney. Indeed, Daniels never indicated to
the trial court that he had any desire to represent himself; and a fundamental part of the Faretta doctrine is that the defendant must clearly
and unequivocally assert his right to self-representation. See, e.g.,
Frazier-el, 204 F.3d at 558; Munkus v. Furlong, 170 F.3d 980, 983
(10th Cir. 1999); United States v. Allen, 789 F.2d 90, 94 (1st Cir.
1986) (holding that right of self-representation did not attach because
defendant had made no indication of his desire to proceed without
counsel); Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982)
("While the right to counsel is in force until waived, the right of selfrepresentation does not attach until asserted."). Because Daniels did
not assert his right of self-representation at trial, that right cannot have
been infringed in these proceedings.
3.
In sum, Daniels is unable, on his Sixth Amendment claim, to make
a substantial showing of the denial of a constitutional right. In light
of the deference we must accord the Supreme Court of North Carolina, this claim is inadequate to "deserve encouragement to proceed
further." Slack, 529 U.S. at 484. Thus, Daniels is not entitled to a
COA on either prong of his Sixth Amendment claim.
C.
We next turn to Danielss Right to Testify claim, which arises out
of rights protected by the Sixth and Fourteenth Amendments. This
claim also has two prongs: first, Daniels maintains that he was

18

DANIELS v. LEE

unaware of his right to testify at his trials sentencing phase; and second, he maintains that his lawyers were ineffective both in failing to
make him aware of that right and in failing to compel him to testify.
In support of this claim, Daniels asserts by affidavit that he did not
know of his right to testify at the sentencing phase, and he states that
he would have testified to his remorse had he known that he could do
so. Further, both of Danielss trial attorneys have stated in affidavits
that, although they spoke with Daniels about testifying during the
trials guilt phase, they do not recall advising him that he was entitled
to testify in the sentencing phase.
Daniels presented his Right to Testify claim to the Second MAR
Court, which concluded that Danielss "affidavits and the transcript
demonstrate that [he] knew he had a fundamental right to testify [at
the sentencing phase] and that he waived his right to testify by failing
[to do so]." Second MAR Decision at 9. Further, the Second MAR
Court found that neither "the transcript nor defendants affidavits support a conclusion that [he] was deprived of his right to effective assistance of counsel by his counsels advice concerning his right to
testify." Id.
1.
It is elementary "that a defendant in a criminal trial has a constitutional right to testify on his own behalf." United States v. McMeans,
927 F.2d 162, 163 (4th Cir. 1992) (citing Rock v. Arkansas, 483 U.S.
44, 51 (1987)). And it is "the defendant who retains the ultimate
authority to decide whether or not to testify." Id. (citing Jones v.
Barnes, 463 U.S. 745, 751 (1983)). In this instance, however, the Second MAR Court specifically found that Daniels was aware of his right
to testify in the trials sentencing phase, and it found that he had
waived that right. And Daniels failed to present any clear and convincing evidence to rebut the presumption of correctness we must
afford to such state court findings under AEDPA.
First, the record reflects that Daniels was present during the trials
voir dire proceedings when his lawyers questioned prospective jurors
on how they would react if Daniels decided not to testify. Second,
Daniels had initially expressed a desire to testify during the guilt
phase but, after discussing the matter with his lawyers, he had decided

DANIELS v. LEE

19

not to take the stand. Finally, at the outset of the trials sentencing
phase, the court advised all those present, including Daniels, as follows:
All right, before we bring the jury in, let me say that for this
phase of the trial, I have requested that the deputies leave
the leg irons on Mr. Daniels. Now, even though I have
requested that, that will not be displayed in the presence of
the jury if Mr. Daniels decides to take the witness stand and
testify.
Id. It was on this evidence that the Second MAR Court found that
Daniels was aware of his right to testify during the entire trial, and
that he had waived that right. Id. Other than offering general after-thefact denials that he was unaware of his right to testify during the sentencing phase, Daniels provided the district court with no evidence to
rebut the Second MAR Courts findings. Accordingly, Daniels has
failed to offer any clear and convincing evidence to displace those
findings. 28 U.S.C. 2254(e)(1).
2.
The ineffective assistance of counsel prong of Danielss Right to
Testify claim is similarly unavailing. To prevail on an ineffective
assistance claim, a habeas corpus petitioner must satisfy the twopronged test of Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, he must show "that counsels performance was deficient,"
meaning that "counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the defendant by the Sixth
Amendment." Id. Second, he must show "that the deficient performance prejudiced the defense." Id. Daniels bases part of this claims
ineffective assistance prong on his assertion that he was unaware of
his right to testify in his trials sentencing phase. While "the burden
shouldered by trial counsel [to inform defendant of right to testify] is
a component of effective assistance," Sexton v. French, 163 F.3d 874,
882 (4th Cir. 1998), Daniels was, as the Second MAR Court found,
aware of his right to testify in the trials sentencing phase. Thus, his
contention that his lawyers were ineffective in failing to inform him
of his right to testify must fail.

20

DANIELS v. LEE

Danielss related contention that his lawyers failed to compel him

to testify in his trials sentencing phase is similarly unavailing. In this
regard, the Second MAR Court concluded that Danielss lawyers
were appropriately concerned with and aware of his right to testify.
Indeed, during voir dire, his lawyers questioned potential jurors about
how they might react if Daniels did not testify. As the Second MAR
Court found, Daniels wanted to testify during the trials guilt phase.
Second MAR Decision at 11. His lawyers, however, warned against
his taking the stand, and Daniels changed his mind and did not testify.
Id. Finally, in order to ensure that a witness testified regarding Danielss remorse, his lawyers called Danielss mother to the stand in the
trials sentencing phase. She advised the jury that her son had indeed
expressed remorse for his crimes. Thus, the record particularly as
reflected in the Second MAR Opinion indicates that Danielss lawyers made a tactical decision that Daniels should not testify in the sentencing phase. Cf. Carter v. Lee, 283 F.3d 240, 249 (4th Cir. 2002)
("[T]he advice provided by a criminal defense lawyer on whether his
client should testify is a paradigm of the type of tactical decision that
cannot be challenged as evidence of ineffective assistance.") (internal
quotations and citations omitted). Accordingly, Daniels has failed to
make a substantial showing that the performance of his defense lawyers was constitutionally deficient.
3.
In sum, Daniels has failed to provide us with any basis for deeming
unreasonable the Second MAR Courts finding that he was aware of
his right to testify at the trials sentencing phase. Assessing both
prongs of his Right to Testify claim, we conclude that Daniels has
failed to establish that it is "adequate to deserve encouragement to
proceed further." See Slack, 529 U.S. at 484. Because he has failed
to make a substantial showing of the denial of a constitutional right,
Daniels is not entitled to a COA on either prong of this claim.
D.
In his Indictment claim, Daniels maintains that his murder conviction and death sentence are invalid because the state court indictment
failed to allege the necessary elements of the murder offense, and
because it failed to allege the aggravating factors essential to the

DANIELS v. LEE

21

death penalty. He contends that the deficiencies of the indictment render his conviction and sentence unconstitutional pursuant to the
Supreme Courts decisions in Ring v. Arizona, 122 S. Ct. 2428
(2002); Harris v. United States, 122 S. Ct. 2406 (2002); Apprendi v.
New Jersey, 530 U.S. 466 (2000); Jones v. United States, 526 U.S.
227 (1999); and Hodgson v. Vermont, 168 U.S. 262 (1897).10 In January of 2001 before Ring or Harris had been decided, but after the
Supreme Courts decisions in Apprendi, Jones, and Hodgson Daniels presented this claim in a habeas corpus petition to the Supreme
Court of North Carolina. That court denied the claim in a summary
fashion, without elaboration or explanation. See Summary Opinion at
1.11
The Apprendi, Jones, and Harris decisions establish the principle
that, in order to pass constitutional muster, the elements of a criminal
offense must be submitted to the jury and proven beyond a reasonable
doubt. See Harris, 122 S. Ct. at 2413-14; Apprendi, 530 U.S. at 48990; Jones, 526 U.S. at 232, 246. Further, in Ring, the Court held that
a jury must determine the presence or absence of aggravating factors
when those factors are essential to imposition of the death penalty.
See Ring, 120 S. Ct. at 2439-44. In considering the Indictment claim,
however, we must decide, pursuant to 28 U.S.C. 2254(d)(1),
whether the state court decision being challenged, i.e., the Summary
Opinion, was contrary to, or an unreasonable application of, clearly
established law, as determined by the Supreme Court of the United
States as of the time Danielss conviction became final.12 See Muhl10

The Indictment claim is premised on the Fifth and Fourteenth

Amendments guarantees of due process.
11
If a state court has failed to "articulate the rationale for its decision,
our review is no less deferential than it is when we review a detailed state
court analysis of a petitioners claim." Hartman v. Lee, 283 F.3d 190,
194 (4th Cir. 2002) (citing Bell v. Jarvis, 236 F.3d 149, 158, 163 (4th
Cir. 2000)). We will, nevertheless, "conduct an independent review of
the record and the applicable law to determine whether the result reached
by the state court contravenes or unreasonably applies clearly established
federal law." Id. (internal quotation and citations omitted).
12
Under 28 U.S.C. 2254(d)(1), we review "clearly established law, as
determined by the Supreme Court of the United States . . . as of the time
of the relevant state court decision." Williams, 529 U.S. at 378-79 (citing

22

DANIELS v. LEE

eisen v. Ieyoub, 168 F.3d 840, 844 (5th Cir. 1999) ("[Under AEDPA,
federal courts] can grant a writ of habeas corpus only if the state
courts determination of law . . . violated Supreme Court precedent
in existence at the time of the petitioners conviction."). Because the
principles of Ring, Harris, Jones, and Apprendi had not been clearly
established when Danielss conviction became final in 1995,13 those
decisions cannot serve as bases for invalidating either his murder conviction or his sentence.
Finally, we have held that North Carolinas short-form murder
indictment does not contravene the Supreme Courts long- standing
decision in Hodgson. See Hartman, 283 F.3d at 197. Thus, the Summary Opinion was neither contrary to, nor 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), and the
Indictment claim does not warrant the issuance of a COA.
E.
In his final assertion of error, the False Testimony claim, Daniels
contends that the prosecution knowingly presented false testimony to
the jury, through one of its witnesses, Dr. White. As we noted above,
Daniels failed to present this claim in any state court proceeding
because he did not discover the alleged false testimony until after his
28 U.S.C. 2254(d)(1)). The phrase "the time of the relevant state court
decision," however, "obviously refers to the time of the state court conviction being attacked . . . and not the time of the state court decision
denying collateral relief from the conviction." Williams v. Cain, 229 F.3d
468, 475 n.6 (5th Cir. 2000). Indeed, any other interpretation would "almost completely eviscerate the previous law of non-retroactivity and
would vastly expand, rather than add a new constraint on, the power of
federal courts to grant habeas relief to state prisoners." Id. (citing Williams v. Taylor, 529 U.S. at 378-79).
13
Danielss conviction became final on January 23, 1995, when the
Supreme Court denied his certiorari petition on his direct appeal. Daniels
v. North Carolina, 513 U.S. 1135 (1995) (denying Danielss petition for
certiorari); Satcher v. Pruett, 126 F.3d 561, 574 (4th Cir. 1997) (observing that conviction became final when Supreme Court denied certiorari
on direct appeal).

DANIELS v. LEE

23

Second MAR had been denied by the Second MAR Court. Because
the False Testimony claim was never adjudicated on its merits in state
court, we owe no AEDPA deference to any state court findings of fact
on this issue.
1.
The legal basis for this claim is the Fourteenth Amendments Due
Process Clause. A state "denies a defendant due process by knowingly
offering or failing to correct false testimony." Basden v. Lee, 290 F.3d
602, 614 (4th Cir. 2002) (citing Napue v. Illinois, 360 U.S. 264, 269
(1959)). Furthermore, "[a] Napue claim requires a showing of the falsity and materiality of testimony." Id. False testimony is "material"
when "there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury." Boyd v. French, 147
F.3d 319, 329-30 (4th Cir. 1998) (quoting Kyles v. Whitley, 514 U.S.
419, 433 (1995)).
2.
Danielss allegation of false testimony relates solely to the evidence presented by Dr. White during the sentencing phase. Based
upon her education, expertise, and prior experience as an expert witness, the court qualified Dr. White as an expert in general psychiatry
with an emphasis on substance abuse. She testified that, in preparing
for her court appearance, she had reviewed various materials, including Danielss confession; his employment files; his military records;
the evaluations of Daniels completed by Drs. Bolinsky, Gross, and
Tyson; and the police report on Danielss criminal activity. Dr. White
testified that, prior to forming her opinions, she had interviewed Danielss estranged wife, "some of his high school classmates[,] one of
his supervisors in the service during the time that [Daniels] was in the
Marines," and his former employer. Summary Judgment Order at 33.
Dr. White testified that she based her opinions on the materials she
had reviewed and on the interviews she had conducted. Id.
In support of the False Testimony claim, Daniels asserts that, just
prior to trial, the prosecution sent Dr. White certain additional materials concerning Danielss case. These additional materials included
police reports, documents relating to his prior criminal record, his

24

DANIELS v. LEE

Marine Corps Reserves file, and an article about violent behavior and
cocaine, which the prosecution described to her as a "favorite of
[Danielss psychiatrist] Dr. Bolinsky." Two days before her appearance in the trials sentencing phase, Dr. White arrived in Mecklenburg
County. The morning after her arrival, the prosecutor left a note for
a member of his staff, requesting that Dr. White do the following:
(1) interview Danielss wife, Diane Daniels, and discuss
photos of Danielss and Dianes son Maurice;
(2) meet with Danielss coworkers and supervisors and
review his personnel file;
(3) ensure that Danielss coworkers and supervisors understood that they might have to testify;
(4) interview Sergeant Tillman and Jimmy James, both
acquaintances of Daniels.
The prosecutors note observed that interviewing Sgt. Tillman was "a
hassle[,] but it may be important at trial to show the basis of [Dr.
Whites] opinion." The note also stated that "all of this needs to be
done by 2:00 p.m. [because] Dr. White may testify this afternoon."
On the basis of this note and the related events, Daniels claims that
the prosecution requested that Dr. White interview the witnesses
solely to bolster her credibility, and that she had already formed her
opinions before the interviews. Daniels contends that Dr. Whites testimony that her opinions were based in part on the interviews was
thus false, and that this false testimony was prejudicial to him in the
trials sentencing phase.
Daniels also alleges that Dr. White testified falsely regarding the
number of Danielss classmates that she interviewed. Daniels asserts
that Dr. White testified that she had "interviewed some of his high
school classmates." The material discovered pursuant to 1415(f),
however, indicates that she interviewed only one classmate. On this
basis, Daniels maintains that Dr. White falsely represented to the jury
the extent of her interviews.

DANIELS v. LEE

25

In our view, reasonable jurists would agree that Danielss allegations on this issue do not "deserve encouragement to proceed further."
Slack, 529 U.S. at 484. First, the fact that Dr. White interviewed witnesses the day before she testified fails to indicate that her opinions
were not premised, in part, on those interviews. Indeed, Daniels has
failed to allege or demonstrate any factual basis for his assertion that
Dr. Whites interviews did not assist in the development of her opinions. See generally McCarver, 221 F.3d at 597-98 (denying COA
because petitioner failed to allege facts that would aid his claims).
Second, Danielss allegation that Dr. White testified as to the specific number of classmates she had interviewed is spurious. Although
she testified that she had interviewed some of his "classmates," she
later testified still on direct examination that she premised her
opinions in part on her "interview with the high school classmate."
Had there been any possibility of confusion, it was eliminated when
Dr. White corrected herself.
Thus, Daniels has failed to make a substantial showing of the
denial of a constitutional right on his False Testimony claim. We
therefore decline to issue a COA on this claim.
V.
For the foregoing reasons, we are unable to issue a certificate of
appealability on any of Danielss claims, and we must dismiss his
appeal.
CERTIFICATE OF APPEALABILITY
DENIED AND APPEAL DISMISSED