UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-8

ERROL DUKE MOSES,

Petitioner - Appellant,

versus

GERALD J. BRANKER, Warden, Central Prison, Raleigh, North Carolina,

Respondent - Appellee.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Senior District Judge. (1:03-cv-00910-WLO)

Argued: September 25, 2007 Decided: October 23, 2007

Before MICHAEL and MOTZ, Circuit Judges, and Joseph F. ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Michael wrote the opinion, in which Judge Motz and Judge Anderson joined.

ARGUED: Shelagh Rebecca Kenney, CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for Appellant. Steven Mark Arbogast, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Kenneth Justin Rose, CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

2 MICHAEL, Circuit Judge:

Errol Duke Moses was convicted in North Carolina state

court on two counts of first-degree murder and sentenced to death

on each count. Moses has petitioned in federal court for a writ of

habeas corpus on the grounds that he received ineffective

assistance of counsel in violation of his Sixth Amendment rights

during the sentencing phase of his trial. Specifically, Moses

claims that his trial counsel failed to investigate readily

available mitigation evidence. The district court denied the

petition, and we affirm. The ineffective assistance claim advanced

in the federal petition was not exhausted in state court, and Moses

has not established the cause necessary to excuse the procedural

default.

I.

In 1997 a jury in Forsyth County, North Carolina,

convicted Moses for two murders. The first murder occurred on

November 25, 1995, when Moses shot and killed Ricky Griffin, a drug

dealer from whom Moses had attempted to buy drugs just hours

before. The second murder occurred two months later, on January

27, 1996, when Moses gunned down Jacinto Dunkley, a drug dealer for

whom Moses had worked and who owed him money.

At the sentencing hearing Moses’s counsel presented

mitigating testimony from three witnesses. Moses’s mother

3 testified about her shortcomings as a parent, including her drug

addiction while Moses was a child; her lack of parental attention,

including her failure to protect Moses from a bad fall that caused

a serious head injury when he was eighteen months old; and her very

limited role in Moses’s life after he was two years old. A

clinical psychologist testified that at the time of the murders

Moses suffered from a mental or emotional disorder that impaired

his ability to constrain impulsive behavior. A social scientist

testified that Moses was “behind the 8-ball from day one” and that

the poverty and violence present in both his family environment and

the urban community where he grew up left him without a “bridge to

the mainstream.” J.A. 348-49. The jury nonetheless recommended a

death sentence for each murder, and Moses was sentenced

accordingly. On direct review the North Carolina Supreme Court

affirmed Moses’s convictions and sentences. See State v. Moses,

(N.C. 1999).

Moses thereafter initiated post-conviction proceedings,

filing a motion for appropriate relief (MAR) in the state trial

court. Moses’s MAR included the claim that he had received

ineffective assistance of counsel during the sentencing phase of

his trial because his counsel had failed to call two additional

witnesses, Anesha Dennis and Roxie Johnson, to offer mitigating

evidence. The state trial court denied the MAR, and the North

4 Carolina Supreme Court refused to exercise discretionary review.

See State v. Moses,

(N.C. 2003).

Moses next filed a habeas petition in U.S. District

Court. The federal petition asserted in part that the state court

had unreasonably denied Moses’s ineffective assistance of counsel

claim. The case was assigned to a magistrate judge, who issued a

recommendation that Moses’s petition for habeas relief be denied

for two reasons: first, Moses had not “‘fairly presented’ the

great majority of his [sentencing phase] ineffective assistance

claim to the state courts” because the claim had “moved well beyond

a claim of failure to present evidence to one of a failure to

investigate;” J.A. 863-64; and second, Moses would be procedurally

barred under North Carolina law from raising the broader failure to

investigate claim in a new proceeding. Shortly after receiving the

magistrate judge’s recommendation, Moses sought to assert the

failure to investigate claim in state court, but the claim was

denied as procedurally barred under North Carolina law. The U.S.

district judge adopted the magistrate judge’s recommendation to

deny the habeas petition and also denied Moses’s request for a

certificate of appealability. We granted a certificate of

appealability, allowing Moses to present two issues with respect to

his ineffective assistance of counsel claim.

5 II.

Moses first argues that the district court erred in

determining that he did not exhaust his (sentencing phase)

ineffective assistance claim in the state MAR proceedings. Moses

next argues that even if the district court correctly held that the

claim was not exhausted, the ineffectiveness of his post-conviction

counsel constitutes cause to excuse the default.

A.

As a general rule, a federal court may grant a writ of

habeas corpus to a petitioner in state custody only if the

petitioner has exhausted available state court remedies.

(b)(1). The exhaustion requirement is satisfied when the

petitioner has “fairly present[ed] to the state court both the

operative facts and the controlling legal principles associated

with each claim.” Longworth v. Ozmint,

(4th Cir.

2004) (citation and internal quotation marks omitted). Some

variations in the factual allegations or legal theory in a federal

habeas claim are permitted so long as they do not “fundamentally

alter” the claim that was advanced in state court. See Vasquez v.

Hillary,

(1986); see also Whiting v. Burt,

(6th Cir. 2005) (“[T]here are instances in which

‘the ultimate question for disposition’ will be the same despite

variations in the legal theory or factual allegations urged in its

support.”) (quoting Picard v. Connor,

(1971)).

6 Thus, the question here is whether Moses’s state MAR fairly

presented the ineffective assistance claim advanced in his federal

petition.

The gist of Moses’s state MAR claim of ineffective

assistance at sentencing was as follows: his counsel should have

called two additional witnesses, Anesha Dennis and Roxie Johnson,

to offer mitigating evidence. In the state MAR proceeding Moses

contended that Dennis would have testified at sentencing that Moses

was a loving father to their child, and Johnson would have

testified that Moses was a “good grandson who provided financial

assistance to her” and also “assisted her when she was sick and

unable to care for herself.” J.A. 390. The state MAR court

rejected the ineffectiveness claim based on its determination that

Moses’s counsel had interviewed the two potential witnesses and

made a reasonable tactical decision that they would not be good

witnesses.

Moses’s federal habeas petition likewise raises a claim

that his counsel were ineffective in the sentencing phase. The

claim in the federal petition is not limited, however, to counsel’s

failure to call Dennis and Johnson as mitigating witnesses.

Instead, the federal petition asserts that counsel had “conducted

an inadequate investigation of Petitioner’s childhood background

and family circumstances” and “consistently ignored important

mitigation leads.” J.A. 657. The petition describes in detail the

7 type of mitigating evidence that could have been presented if

counsel had undertaken a full investigation of Moses’s background.

Attached to the petition are affidavits from seventeen persons who

would have offered mitigating testimony, including a caseworker and

two psychologists from the Massachusetts Department of Youth

Services, two teachers from Moses’s elementary school, and twelve

family members, including Johnson. The petition asserted that

testimony from these witnesses would have detailed the “daily

horror of [Moses’s] childhood home” while also portraying Moses as

someone with “a life worth preserving.” J.A. 661.

We agree with the district court that Moses’s federal

petition fundamentally alters the ineffective assistance of counsel

claim he presented to the state MAR court. A failure to

investigate claim necessarily depends on proof that an adequate

investigation would have uncovered mitigating facts that, if

presented at the sentencing hearing, would have created a

reasonable probability of a different outcome. See Strickland v.

Washington,

(1984). Moses’s state MAR presented

no facts regarding the likely results of an adequate investigation.

Instead, it relied solely on trial counsel’s failure to present

testimony from two witnesses whom counsel had located and

interviewed. This case, then, is not one in which the legal theory

advanced in the federal petition merely emphasizes a different

subset of the facts presented to the state MAR court. See

8 Satterlee v. Wolfenbarger,

(6th Cir. 2006)

(holding that ineffective assistance claim was fairly presented

when federal petition relied heavily on a fact presented, but not

emphasized, in state court). Rather, Moses’s new theory on

counsel’s failure to investigate mitigation evidence for sentencing

requires the presentation of a set of facts not introduced in the

state MAR proceeding. For this reason we conclude that the

ineffectiveness claim in Moses’s petition was fundamentally

different than the one presented to the state court.

Moses argues that various references in the state MAR to

his counsel’s failure to develop the mitigation record at

sentencing demonstrate that the failure to investigate claim was

fairly presented to the state court. We disagree. The failure to

develop references in the state MAR relate specifically to

counsel’s failure to develop the mitigating testimony that Dennis

and Johnson could have offered. These references cannot be read as

advancing any claim about counsel’s failure to conduct a broader

investigation for potential mitigating witnesses. Moreover, Moses

failed in the state MAR proceeding to present any evidence to

demonstrate what the probable results of an adequate investigation

would have been.

For these reasons we conclude that the district court did

not err in holding that Moses failed to exhaust in state court the

9 ineffective assistance of counsel claim now presented in his

federal habeas petition.

B.

A federal court may consider an unexhausted habeas claim

if the petitioner can establish cause and prejudice to excuse the

default. Longworth,

. Moses contends in the

alternative that the ineffectiveness of his post-conviction (MAR)

counsel constitutes cause for any default on his part. This

argument, however, is foreclosed by our decision in Mackall v.

Angelone,

(4th Cir. 1997), which holds that the

ineffectiveness of post-conviction counsel cannot constitute cause

to excuse a procedural default.

.

Moses’s counsel sought at oral argument to distinguish

Mackall by arguing that Moses’s case presented exceptional

circumstances that required the state to provide effective post-

conviction counsel. See United States v. Legree,

(4th Cir. 2000) (citing Gagnon v. Scarpelli,

(1973), a probation revocation case, for the proposition that in

“some exceptional cases due process does mandate the appointment of

counsel for certain postconviction proceedings”). Counsel asserted

several reasons why Moses’s case qualified as exceptional,

including that Moses was represented by the same counsel at trial

and on direct appeal, that counsel appointed to represent him in

the state MAR proceeding lacked substantial experience in such

10 proceedings, and that North Carolina law barred him from filing the

MAR without the assistance of counsel. Even if we assume that

Mackall gives way to exceptional circumstances, we conclude that

Moses did not face such circumstances in his state MAR proceeding.

Moses, like the petitioner in Mackall, was restricted by a state

law that in most cases bars a habeas petitioner from raising a

claim for ineffective assistance of trial counsel prior to the

post-conviction habeas proceeding.

. And, as noted

above, we held in Mackall that there was no constitutional right to

counsel in the state post-conviction proceeding.

Moreover,

Moses’s defaulted claim is a straightforward one: that his trial

counsel failed to adequately investigate mitigating circumstances

for sentencing. We therefore see no basis for holding that Moses’s

MAR case presented exceptional circumstances that would trump the

Mackall rule.

* * *

The judgment of the district court denying Errol Duke

Moses’s petition for a writ of habeas corpus is

AFFIRMED.

11