SCANLON v. HARKLEROAD

unsel's failure to use the Records prejudiced Scanlon. Strickland mandates that a petitioner show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694. To assess reasonable probability, the court considers the totality of the available exonerating evidence — both the evidence adduced at trial, and the evidence adduced in the habeas proceeding — and reweighs it against the evidence of guilt. See Porter v. McCollum, U.S., 130 S.ct. 447, 453-54 (2009) (citing Williams, 529 U.S. at 397-98, and deciding in context of sentencing phase). Under this approach, a court must weigh the evidence of guilt against the evidence of reasonable doubt. A verdict that was "only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696.

The Magistrate Judge found that while Trial Counsel's representation was deficient, there was not a reasonable probability that had Trial Counsel utilized the Records the jury would have returned a not-guilty verdict. (Doc. 22 at 22.) The Magistrate Judge based this conclusion on evidence suggesting that Scanlon had been to Harris' house within the timeframe of her death and had stolen her belongings, that Harris was scared of Scanlon, and that Scanlon had previously threatened to kill Harris. (Id. at 22-23.) Scanlon argues that had Trial Counsel fully utilized the Records, there is a reasonable probability that one or more jurors would have entertained a reasonable doubt as to the manner, method, or cause of Harris' death, thus resulting in a different outcome in the proceedings. (Doc. 26, Attach. at 6.)

The court first looks at the evidence of Scanlon's guilt. The evidence shows that Scanlon was in Harris' house and stole her belongings. Scanlon was arrested in New York in possession of Harris' credit cards after her death. (Trial Tr. at 2892-94.) He admitted to driving Harris' car from North Carolina to New Orleans where he abandoned it. (Id. at 3684-93.) Scanlon pawned a gold nugget ring similar to one that went missing from Harris' house on the day of her death. (Id. at 2327-29, 2370-71.) Police found his head hairs on Harris' pillow case (id. at 3550), her comforter (id. at 3549), her bed sheet (id. at 3548), and in her car (id. at 3545). Additionally, police found one of his pubic hairs on her bed (id. at 3551) and a cigarette butt with saliva matching Scanlon's in the house (id. at 3404-06). The belongings in Harris' bedroom were also ransacked, including the presence of boxes and mounds of covers over Harris' body on her bed. This evidence points to Scanlon's guilt for the

various theft-related charges and puts him at the scene close in time to Harris' death.

The prosecution presented evidence of ill will between Scanlon and Harris. Harris had threatened to bring criminal charges against Scanlon for stealing and misusing her credit cards and checks. (Id. at 2045-48.) There was testimony that Scanlon threatened to kill Harris (id. at 2218) and that Harris was afraid for her safety as a result of the threat (id. at 2045). Harris had even shot at Scanlon, had sought to change the locks on her house because she believed that Scanlon had a house key (id. at 2046, 2137), and had asked her nephew and his girlfriend to move in with her for protection (id. at 2045).

At trial, Dr. Thompson testified that the cause of death was asphyxia due to the plastic bag wrapped around Harris' head. (Id. at 2678.) He testified that a bruise found on Harris' face could have been caused by a fist. (Id. at 2690.) He concluded that the manner of death was homicide. (Id. at 2682.) Further, Scanlon's own expert, Dr. Harris, testified that another person likely tied the knot in the plastic bag (id. at 3749-50) and placed the bedding covers on top of Harris' body (id. at 3750).

There was evidence at trial that an overhand knot was tied in the plastic bag wrapped around Harris' head. However, the existence of the knot at the crime scene was a contested fact. Scanlon argues that there was no knot when Harris' body was found; rather, it was tied later. (Doc. 1, Attach. 2.) However, at trial, the first crime scene investigator at the scene testified that he saw a knot in the plastic bag. (Trial Tr. at 2466.) The inference created at trial was that Harris could not have tied the knot in the bag herself, thus someone else must have been in the room and placed the plastic bag over her head. There was sufficient evidence to support the State's contention, and thus the jury's conclusion, that the knot was present in the bag at the time Harris was found.

In short, the trial record contains substantial evidence that supports the conclusion that Scanlon expressed a motive to kill Harris, went to her house around the time of her death, had an altercation with Harris that bruised her, suffocated her by placing a plastic dry-cleaning bag over her head, stole some of her belongings, and left in her automobile.

In turn, this evidence must be weighed in light of the Records and all other exonerating evidence. Williams, 529 U.S. at 397-98. At trial, Trial Counsel disputed the prosecution's contention that Harris was murdered, arguing instead that she died as a result of an accident (the autoerotic asphyxiation defense) because of a pre-existing heart condition, or suicide. (MAR Tr. at 284-85). As noted below, the Records would have benefited both of these defenses. a. Heart Condition

At trial, aspects of Harris' heart condition were before the jury. The jury was told that Harris had gone to the hospital in December 1995 because she "became ill", but was told no further specifics of her condition at that time. (Trial Tr. at 2089-90.) There was evidence presented that Harris was on short-term disability because of her heart condition. (Id. at 2102-03.) Dr. Thompson testified that Harris had severe coronary artery disease, had likely suffered from a heart attack in the past, and had undergone coronary bypass surgery. (Id. at 2714-16.) He also testified that cocaine would have had a bad effect on anyone with a heart condition. (Id. at 2716.) He nevertheless stated that the existence of her coronary artery condition would not change his opinion as to the cause and manner of Harris' death. (Id. at 2723-24.) In addition, Dr. Thompson testified that after Harris' bypass surgery, "certainly she would have been able to likely function normally." (Id. at 2724.) However, Dr. Thompson never reviewed Harris' medical records prior to the trial and was unaware of her hospital visit in December 1995. (Thompson Aff. ¶ 5.)

At trial, Barbara Breeden testified that Harris was not on full-time disability, that Harris thought she was unhealthy enough to be considered disabled but that the Social Security Administration disagreed. (Trial Tr. at 2102-03.) However, at the MAR Hearing, Breeden testified that after Harris' death, she had received close to $30,000 from Social Security for disability benefits. (MAR Tr. at 1018.) Also, the Records revealed that Harris was on 100% disability since 1990 due to her coronary artery disease.

On the other hand, Dr. Harris testified at trial that Harris had likely died as a result of her heart condition that was complicated by new clots and the presence of cocaine. (Id. at 3742.) The prosecution seriously undermined Dr. Harris' testimony by eliciting his admission that he had neither received nor reviewed any of Harris' medical records. (Id. at 3753.) The State's closing argument ridiculed Dr. Harris' theory that Harris could have died from her heart condition, claiming she was "functioning fine, fine with her coronary problem" and had surgery "to correct her problem" (id. at 4066) and that the theory that she died of a heart attack "came from another planet" and was "[e]xtremely incredible" (id. at 4064).

At the MAR Hearing, Scanlon called multiple medical experts to testify as to the condition of Harris' heart. Dr. Tcheng reviewed the Records and testified in an affidavit that in addition to coronary artery disease, Harris had congestive heart failure/right-sided heart disease. (MAR Tr. at 305; State v. Scanlon, N.C. Ct. App. Docket No. 05-119, R. on Appeal at 545-47, Tcheng Affidavit at 2-3 ("Tcheng Aff.").) He testified that it would be a misrepresentation to say that Harris' "cardiac disease had been corrected by surgery, or was controlled by medication, or that her health was in any respect good[.]" (MAR Tr. at 308.) In his opinion, Harris' heart condition made her a perfect candidate for sudden death, and the presence of cocaine and oxygen deprivation created "the perfect environment for sudden death." (Id. at 311-12.)

He also testified that Harris' hospitalization on December 28, 1995, for chest pain suggested her "situation was more grave than being carefree or healthy," as patients who redevelop chest pain after bypass surgery have a "dramatically higher" chance of dying over the next six months than those patients who are otherwise stable. (Id. at 308-09.) Dr. Tcheng could not unequivocally state that Harris died as a result of a cocaine-induced heart attack, only that asphyxiation was not the only possibility of how she died because her heart was also a "smoking gun," which could have been secondary to asphyxiation. (Id. at 361-62.) He testified that the autopsy report and her medical records suggested several possibilities of how Harris died: that the fresh blood clot in the bypass graft going to the left anterior descending distribution killed her (id. at 331); given her degree of heart disease, she died suddenly from a primary dysrhythmia (id. at 331); or that the presence of cocaine in her system caused a blood clot that killed her (id. at 332).

In his affidavit, Dr. Tcheng stated that "Harris' medical records contradict any representation tending to minimize the severity of her medical condition in the months prior to her death, including any representation that her cardiac disease had been `correct[ed]' by surgery, that the disease was controlled by medication, that she was functioning `fine,' or that her health was in any respect `good'." (Tcheng Aff. ¶ 3.) He stated that her disease was "severe, degenerative, and had life-threatening potential at any time" (id. ¶ 4), and that she was a perfect candidate for sudden death (id. ¶ 5). He suggested that Harris' medical records "support the conclusion" that she suffered sudden death induced by cocaine "either directly[,] by causing a primary ventricular dysrhythmia[,] or indirectly[,] by causing acute thrombosis of the vein graft, acute myocardial infarction and a terminal ventricular dysrhythmia[]." (Id. ¶ 7.) In other words, as he testified at the MAR Hearing, the degree of Harris' heart condition could have caused her death, without any clot. (MAR Tr. at 331.)

Dr. Hudson testified that Harris' ingestion of cocaine would be very dangerous with her heart condition and that the combination of the heart condition, the cocaine, and the likely oxygen deprivation through the use of the plastic bag would significantly increase her risk of sudden death. (Id. at 217-18.) He testified that the Records showed Harris "was still in a very dangerous situation as far as life expectancy was concerned" after her bypass surgery (id. at 214) and that her hospitalization in December 1995 was an indicator that "the heart disease was at least still there, if not getting worse" (id. at 219). In his opinion, "cocaine . . . would be just about as dangerous as anything I can think of to her heart." (Id. at 217.) He stated in his affidavit that "the medical records contradict any representation tending to minimize the severity of [Harris'] medical condition in the months prior to her death, including any representations that her cardiac disease had been `correct[ed]' by surgery, that this disease was controlled by medication, that she was functioning `fine', or that her health was in any respects `good.'" (State v. Scanlon, N.C. Ct. App. Docket No. 05-119, R. on Appeal at 543 ¶ 3 ("Hudson Aff.").) He stated that "[g]iven [her] medical history . . . Harris had been a perfect candidate for sudden death in the absence of cocaine use or hypoxemia (oxygen deprivation). The introduction of either or both of the latter two factors would have increased her risk of sudden death." (Id. ¶ 5.) He viewed Harris' hospitalization on December 28, 1995, as an indicator "that her condition was worsening shortly before her death." (Id. ¶ 6.)

Dr. Thompson reviewed Harris' medical records and concluded that the existence of her bypass condition would not have changed his opinion that asphyxiation was the cause of death. (MAR Tr. at 1183.) However, Dr. Thompson based his opinion on the facts of the scene. (Id. at 1223.) In his affidavit, Dr. Thompson clarified that when he testified at trial that Harris "would have been able to likely function normally" after her bypass surgery, which is "generally the point of that [type of] surgery", he did not mean that the surgery had corrected her heart condition. (Thompson Aff. ¶ 3.) He further stated that "[b]ecause Ms. Harris' heart disease was severe and degenerative, she was a perfect candidate for sudden death at any time in the absence of cocaine or oxygen deprivation. The presence of either or both of those stressors would have increased the risk of sudden death." (Id.)

Dr. Louis A. Levy, a clinical and forensic pathologist, testified at the MAR Hearing that Harris had "severe coronary artery disease" that was "complicated by longstanding hypertension." (MAR Tr. at 145.) She was a "good candidate for sudden death by means of a heart attack." (Id.) He opined that her coronary bypass surgery "alleviated" but did not correct her condition. (Id.)

b. Suicide

Trial Counsel did not develop a robust suicide defense at trial, relying rather on the autoerotic asphyxiation defense. Trial Counsel did present the testimony of Patricia Barnes, the information systems coordinator of the Office of the North Carolina Chief Medical Examiner, who provided statistics as to deaths by asphyxia, broken down by suicide and homicide. (Trial Tr. at 3822-39.) She testified that in 1996 and 1997, forty-nine and fifty-four asphyxiation deaths were reported, respectively, of which five and two were by plastic bag, respectively. (Id. at 3824.) She testified that of the asphyxiation deaths, seven in 1996 and twelve in 1997 were homicides (there being no information as to how many were by plastic bag). (Id.) She reported that there were ten suicides by asphyxiation in 1996 and nine in 1997. (Id. at 3825.) In closing arguments, Trial Counsel raised suicide as a possible defense. (Id. at 3998-99.)

Dr. Hilkey (as noted earlier, a licensed and forensic psychologist) testified for Scanlon, but he testified only that in his opinion Scanlon did not fit the personality profile of "someone who is violent or has capacity to engage in the crimes of aggression toward other people." (Id. at 3849.) On cross examination, the prosecutor examined Dr. Hilkey as to a demand note used by Scanlon in a prior bank robbery that read, "Put money in the bag or you're dead." (Id. at 3865.)

Additional evidence to support the suicide defense was presented at the MAR Hearing.

Dr. Coleman reviewed the Records and pointed out Harris' significant suicide risk factors: chronic depression (MAR Tr. at 670); anxiety (id. at 672); passive suicide (id. at 673); chronic health problems (id. at 681); cocaine use (id. at 682); and significant conflict in her life (id. at 684). He noted that Harris had recently exhibited behavior consistent with suicide risk factors, including recently closing business bank accounts, indicating she was "taking care of things" (id. at 685), and recently stopping to care for her appearance (id. at 693-94). Further, Harris' sister recently confronted her about possible drug use (id. at 688), which the autopsy revealed was true. Dr. Coleman also testified that making plans post-suicide does not indicate that a person is not suicidal (id. at 710), and it is more common that a suicide note is not left (id. at 718). She further testified that death by asphyxiation through the use of a plastic bag is a well-known form of suicide. (Id. at 679.) However, at the end of the day she conceded that she could not say "with any degree of certainty" that Harris was suicidal. (Id. at 727.)

In the pre-trial investigation, Trial Counsel interviewed Kim Senter, a former tenant of Harris', who said that Harris tried to commit suicide in December 1995 by purposefully failing to take her medication. Barbara Breeden, Harris' sister, confirmed that Harris was rushed to the emergency room in December 1995, according to Harris, for not having taken her potassium pills. (Id. at 1051-53.) No further testimony was given that this failure was a suicide attempt, as Kim Senter never testified at either the trial or the MAR Hearing. Dr. Coleman testified that it is common for older people to attempt suicide by failing to take their medication and so she assumed, for purposes of her analysis, that this was a suicide attempt by Harris. (Id. at 673-74.)

Dr. Prange testified that Harris' depression, heart disease and cocaine presented a "toxic triangle" in Harris' life. (Id. at 1348.) He considered Harris to have a "very substantial risk of suicide" due to these risk factors. (Id. at 1350.) Dr. Prange viewed Harris' last conversation with Barbara Breeden as a "hint" towards suicide. (Id. at 1356.) In her last conversation with Harris, Breeden told Harris that she "was worried about her loss of interest in her appearance . . . [and] generally her behavior was not like it used to be" and "asked if she were using drugs." (Id. at 1022.) Harris responded that she was just worn out with people stealing her checks and credit cards and having to stop payments and report stolen credit cards, that "she didn't see how she could take much more," but that "things were going to get better, and not to worry." (Id.)

Dr. Prange also testified that the combination of cocaine and the plastic bag "strongly suggests to me that suicide was the manner of her death." (Id. at 1363.) He did not view the bedding found on top of Harris' body as inconsistent with suicide. (Id. at 1359-60.) He believed that Harris' refusal to go to the hospital and receive treatment in December 1995, despite traditionally being "scrupulous in keeping medical appointments [and] taking care of herself in the face of deteriorating health over a long period of time", was an "untoward sign" that Harris had a "temptation to give up." (Id. at 1358.)

Dr. Levy "concluded that [he] didn't see satisfactory anatomic evidence, or clinical evidence, or evidence from the scene of the materials to make a decision that . . . a homicide had occurred." (Id. at 133.) Dr. Levy stated that "it was very difficult to separate a natural [death] from an accident from a suicide, but I settled on a suicide as being most likely [the cause of death]." (Id. at 133.) He saw "no reason to call [Harris' death] a homicide." (Id. at 151.) His opinion was based on his review of the trial and MAR transcripts, the Records, and the combination of the plastic bag (which he believed Harris could have knotted herself), the presence of cocaine in Harris' blood, and lack of what he saw as any defensive injuries or evidence of attempted resistance on Harris' hands. (Id. at 133-41.) He conceded that there may be no evidence of struggle even if one had in fact occurred (id. at 155-56) and acknowledged that the bruise on Harris' face was made within six hours of her death but was superficial (id. at 135, 152). He noted the statement in the Records where in 1993 Harris told a doctor that she wished to be dead. (Id. at 188.) He conceded, however, that the pile of clothes over her body was "very unusual." (Id. at 177.)

Dr. Levy testified further that sexual asphyxiation is unusual, particularly in an elderly female, but that Harris could have put the plastic bag over her head herself. (Id. at 141.) He also noted that most people who commit suicide do not leave a note or tell anyone they are planning to kill themselves. (Id. at 178.) In the end, he acknowledged that this was "a very complex case" and when asked whether he was choosing "suicide" over "undetermined" answered: "I don't have any problem with undetermined. There are features of virtually every single manner of death in this case, and undetermined is, to use a term I've recently used, a path of least resistance, for sure, yes." (Id. at 194.)

In his affidavit, Dr. Hudson stated that "in light of the medical records, the circumstances of Ms. Harris' death are consistent with a successful suicide attempt." (Hudson Aff. ¶ 8.) He testified similarly at the MAR Hearing that Harris' death was "consistent with . . . a successful suicide attempt." (MAR Tr. at 227.) He could not rule out the possibility of homicide (id. at 259-61), testifying he "would put the manner [of death] down as undetermined" (id. at 251).

Dr. Harris testified at the MAR Hearing, without having reviewed the Records, that information that Harris had a psychiatric history "might have changed my opinion." (Id. at 375.) And if it turned out she was suicidal in the past or had any tendency towards suicide, he said, "it might have changed my opinion quite radically. But I do not leap into the diagnosis of suicide as a differential without some kind of history." (Id. at 375.)

Dr. Thompson testified at the MAR Hearing and in his affidavit that while he maintained his opinion from trial, he would have "considered either suicide or `undetermined' as the manner of her death" had he known of Harris' past mental problems. (Id. at 1222; Thompson Aff. ¶ 6.) However, he maintained that in his "opinion . . . the cause of death was asphyxiation, and that the manner of death was a homicide." (MAR Tr. at 1223). He testified that he would not change his opinion about manner of death without first talking to the police. (Id. at 1211.) He based his opinion, even after reviewing the Records, on the existence of the knot in the plastic bag, the facts of the scene, and the lack of a suicide note. (Id. at 1223-24.) He stated in his affidavit that he testified at trial that an examination of the body alone did not allow him to rule out suicide or accident. (Thompson Aff. ¶ 2.) In his opinion, the scene and the plastic bag did not in themselves indicate a suicide. (MAR Tr. at 1224.) However, he conceded that Harris could have tied the knot herself if she had wanted to do so. (Id. at 1244.) In his affidavit, he stated that in concluding Harris' death was a homicide, he "relied on circumstances extrinsic to the examination of the body, including the belief of the police that the death was a homicide." (Thompson Aff. ¶ 4.) In the end, he allowed that "the circumstances of her death are consistent with suicide." (Id. ¶ 6)

Law enforcement found a note Harris had apparently written to profess her feelings for Scanlon, which was ripped up on her bedside table.

3. Evidence of Guilt Weighed With All Exonerating Evidence

To be sure, none of the evidence adduced at the MAR Hearing calls into question the jury's conclusion that Scanlon was present in Harris' house around the time of her death and stole her car and other belongings, including her credit cards that he used during his flight. But concluding that someone engaged in a theft is quite different from concluding that he or she committed a murder in connection with it. There is always the possibility that Scanlon seized on an opportunity to steal Harris' belongings once he realized she was dead, however she died.

As to the cause of death, the Records would have permitted a more developed defense that Harris' heart condition was more serious than the prosecution demonstrated, with congestive heart failure — an uncorrectable condition — being a significant issue for Harris. Dr. Thompson, who acknowledged that Harris had a heart condition, minimized the severity of that condition and the potential lethal consequences resulting from it. His opinion was used to contradict Dr. Harris' opinion that Harris died as a result of her heart condition. The Records would have enabled Trial Counsel to impeach Dr. Thompson's view that Harris was healthy after her surgery or that her heart had been "correct[ed]." After reviewing the Records, Dr. Thompson conceded that her heart condition was not corrected by her bypass surgery and that she was a candidate for sudden death (Id. ¶ 3), a conclusion notably different from his trial testimony.

The potential importance of the Records was highlighted by the prosecutors themselves who, in closing argument, ridiculed the defense and Dr. Harris for not reviewing the medical records (Trial Tr. at 4066-67 ("maybe if he'd looked at the medical records")) and for claiming that Harris' heart was not corrected by her surgery and thus functioning adequately. The Records would have bolstered the opinion of Dr. Harris, Scanlon's sole medical witness, that Harris' heart condition was the cause of her death and prevented the State from making a credible claim that Harris was "functioning fine" because her coronary bypass surgery had "correct[ed] her problem." (Id. at 4066.) They would have enabled Trial Counsel to show that Harris' heart condition may have deteriorated in light of her December 1995 hospital visit. And while the jury was told that cocaine would have had a negative effect on someone with Harris' heart condition (Id. at 2716), the seriousness of the lethal consequences of someone with Harris' heart condition ingesting cocaine would have been underscored.

In short, the use of the Records would have supported Trial Counsel's theory that Harris died as a result of her bad heart. See, e.g., Williams v. Allen, 542 F.3d 1326, 1342-43 (11th Cir. 2008) (finding prejudice when counsel put on testimony that described defendant's childhood beatings as occasional "ordinary parental discipline," as opposed to testimony describing the beatings as "serious assaults" involving "deadly weapons" that occurred "on a near constant basis"); Bean, 163 F.3d at 1080-81 (finding counsel's combined failures at sentencing to provide experts with informational foundation for their conclusions, which severely undercut their utility to the defendant, and the failure to fully develop the seriousness of defendant's mental problems resulted in prejudice).

In its opinion, the court of appeals found that the trial court's finding that "[t]he severity of Ms. Harris' heart condition was substantially before the jury" was supported by the record. Scanlon, 176 N.C. App. at 440-42, 626 S.E.2d at 790-91. This is a conclusion based on fact, as opposed to an actual factual determination. The distinction is important, for under 28 U.S.C. § 2254(e)(1), factual determinations made by the state court are presumed to be correct and are only rebutted by a showing of clear and convincing evidence.

The more difficult issue, however, is whether prejudice as to the cause of death undermines the verdict if the presence of the plastic bag cannot be explained. In other words, even assuming that Harris may have died from some form of heart failure, how does one explain the presence of the plastic bag in a fashion that would absolve Scanlon of responsibility for her death? The jury already rejected the autoerotic-asphyxiation scenario, and the court finds that it is unlikely that the Records and testimony of the MAR experts would have altered that result. Thus, Scanlon must be able to demonstrate that the Records and expert testimony undermine confidence in the verdict as to the manner of death. This is a much closer question.

Though the records show that Harris suffered from forms of depression and anxiety for over twenty years with some rise and fall in her symptoms, they reflect that she generally appeared to cope for this extended period of time through the use of various medications. Significantly, the Records note what may have been an uptick in her symptoms in February 1993, two years before her death, when Harris presented to Dr. Gianturco with night sweats, anxiety, and crying spells and expressed that she "wishe[d] to be dead." (MAR Hearing, Def.'s Ex. 1.) There is no evidence anywhere in the Records that Harris ever threatened or wished to take her life. Rather, her subsequent Records reflect a desire for treatment and a general improvement in her condition. This is colored only by Dr. Gianturco's August 26, 1993 letter to her lawyers (presumably relating to a claim for benefits) in which he softens the improvement he noted in her medical records, concluding that she has "good days and bad days." (Id.) However, it appears from the Records that Harris neither sought nor obtained any further treatment for her depression and anxiety after February 1994, nearly two years before her death.

Even after reviewing the Records, Dr. Thompson, the State's expert, refused to change his opinion as to homicide because he based it on the extrinsic evidence that suggested to him that Harris was murdered. (MAR Tr. at 1223-24). He did admit that Harris could have tied the knot in the bag herself. (Id. at 1244.) However, at best he would have "considered" suicide but would not have adopted it as an opinion.

Dr. Hudson, the former chief medical examiner of North Carolina, opined only that the evidence "is consistent with Ms. Harris having made a successful suicide attempt." (Id. at 227 (emphasis added).) He did not, and apparently could not, opine that he believed that Harris had in fact committed suicide. Similarly, Dr. Coleman conceded that she could not say "with any degree of certainty" that Harris was suicidal. (Id. at 727.)

Scanlon's strongest witness is Dr. Levy, a forensic pathologist with similar training and credentials as Dr. Thompson, who at the MAR Hearing testified on direct that he saw suicide as the "most likely" manner of death. (Id. at 133.) This is contrasted with his report, where he stated only that the evidence "makes me lean towards a suicide" (MAR Hearing, Def.'s Ex. 3 at 5), and his MAR cross-examination, where when asked if he favored "suicide" over "undetermined" stated it was "a very complex case" and "I don't have any problem with undetermined. There are features of virtually every single manner of death in this case, and undetermined is, to use a term I've recently used, a path of least resistance, for sure, yes." (MAR Tr. at 194.) He based his opinion on his view that there was a lack of any definite defensive injury which may be found in cases of strangulation, apparently dismissing Harris' black eye. (Id. at 143.) Contrary to Dr. Harris' testimony, Dr. Levy also testified that Harris could have placed the bag over her head herself. (Id. at 141.)

Dr. Thompson testified that the bruise on Harris' face could have been caused by a fist and might have occurred around the time of her death. (Trial Tr. at 2690, 3905-09.) Slight bruising was also found on Harris' forearm, as well as two small lines on her neck likely caused by the plastic bag. (Id. at 2668.) Scanlon's experts at the MAR Hearing disagreed and did not see any evidence of defensive injuries. (MAR Tr. at 143.)

In this court's view, the Records and MAR experts, particularly Dr. Levy, would have provided meaningful support for a suicide defense and/or an "undetermined" defense. However, in light of the trial evidence, it is a particularly close question whether the Records and testimony, had they been presented, undermine confidence in the outcome. The court

concludes that in a criminal case where the prosecution bears the burden of proof beyond a reasonable doubt and a defendant need only raise reasonable doubt, had the jury considered an accurate portrayal of Harris' heart condition and the evidence of her mental health condition supporting a suicide defense, "there is a reasonable probability that at least one juror would have struck a different balance" by finding either "suicide" or "undetermined" as the manner of death. See Wiggins, 539 U.S. at 537.

4. Determination of Whether State Court Decision Constituted an Unreasonable Application of Clearly Established Federal Law.

This does not end the inquiry, however. In order to grant a habeas petition under section 2254(d)(1), the state court must have unreasonably applied clearly established federal law as set forth by the Supreme Court. Though this court has concluded that the North Carolina Court of Appeals incorrectly appliedStrickland, this incorrect application must be "objectively unreasonable" in order to grant Scanlon's habeas petition. Id. at 520-21. The term "objectively unreasonable" is difficult to define, and courts have struggled to apply it. The Supreme Court has offered some examples as to what constitutes "objective unreasonableness": the Court has found "objective unreasonableness" when a state court committed a clear factual error, id. at 528, uncritically deferred to an individual's assertion rather than rigorously scrutinizing the validity of that contention, e.g., id. at 526-28, and failed to give appropriate consideration and weight to pertinent facts,Rompilla, 545 U.S. at 389 (finding that state court's conclusion that trial counsel could reasonably decline to make an effort to review an easily assessable file he knows the prosecutor will cull for evidence was an objectively unreasonable application of federal law).

In its attempt to formulate a general definition of "objective unreasonableness," the Second Circuit noted:

As an abstract proposition, we can only echo Justice O'Connor's virtually tautological statement [in Williams v. Taylor] that to permit habeas relief under the "unreasonable application" phrase, a state court decision must be not only erroneous but also unreasonable. Some increment of incorrectness beyond error is required. We caution, however, that the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence. We do not believe AEDPA restricted federal habeas corpus to that extent.

Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (citation omitted) (internal quotation marks omitted).

The Supreme Court has declined to find "objective unreasonableness" in cases where the support for the state court's analysis and conclusions are so strong that, while the federal court may disagree, it must acknowledge "at the very least that the state court's contrary assessment was not `unreasonable'" and that "federal-court intervention" would be tantamount to "substitut[ing] [the federal court's] own judgment for that of the state court." Woodford v. Visciotti, 537 U.S. 19, 25-27 (2002) (per curiam). In assessing the reasonableness of a state court's application of federal law, a federal court is to review the state court result, not "whether [its decision] [was] well reasoned." Wilson, 352 F.3d at 855 (quoting Bell v. Jarvis, 236 F.3d 149, 159 (4th Cir. 2000) (en banc)).

However, most courts still review the reasoning employed by the state court. See Allen v. Lee, 366 F.3d 319, 343 n. 3 (4th Cir. 2004) (en banc) (Gregory, J., concurring) (representing views of majority of en banc circuit) ("Having found that the analysis employed by the state court was unreasonable, we could not properly deny relief under § 2254(d) on the basis that the result of the state court proceeding was not unreasonable. Such a conclusion would necessarily be premised on reasoning that was not relied on by the state court. Reasoning that the state court could have — but did not — employ must be evaluated de novo, without applying the deferential standard prescribed by § 2254(d)(1).").

In applying Strickland to Scanlon's ineffective assistance of counsel claim, the North Carolina Court of Appeals concluded that competent evidence supported the trial court's conclusion that Trial Counsel's failure to utilize the Records did not fall below an objective standard of reasonableness. Scanlon, 176 N.C. App. at 441, 626 S.E.2d at 790. The court of appeals reasoned that Trial Counsel had obtained and reviewed Harris' medical records (including putting post-it notes on them) and consulted Dr. Thompson and Dr. Hilkey about the possibility of a suicide or heart-related defense, which showed a reasonably sufficient investigation into this particular line of defense. Id. at 440, 626 S.E.2d at 790. As to prejudice, it concluded that the severity of Harris' heart condition was "substantially before the jury" and thus the Records would not have bolstered the defense that she died as a result of her heart condition. Id. The court of appeals reasoned that even if Trial Counsel's actions were objectively unreasonable, Scanlon was not prejudiced because Trial Counsel's decision to pursue a theory of autoerotic asphyxiation or accident instead of suicide was a defensive strategy that could not be second-guessed on appeal. Id. at 442, 626 S.E.2d at 791.

As to the first prong of Strickland, whether Trial Counsel's performance fell below the proper standard, the court finds that the North Carolina Court of Appeals' application of Strickland to the facts of the case is an objectively unreasonable application of federal law as determined by the Supreme Court. The court of appeals failed to show the reasonableness of Trial Counsel's failure to conduct a more thorough investigation into the cause and manner of death, including a possible suicide defense. InWiggins, the Supreme Court noted that the failure by the state court to conduct an assessment of whether counsel's decision not to further investigate available mitigating evidence actually demonstrated reasonable judgment reflected an unreasonable application of Strickland. 539 U.S. at 527-28 (noting that "the [state] court's subsequent deference to counsel's strategic decision not to present every conceivable mitigation defense, despite the fact that counsel based this alleged choice on what we have made clear was an unreasonable investigation, was also objectively unreasonable") (citation omitted) (internal quotation marks omitted).

Here, the court of appeals reasoned that the investigation was adequate based on Trial Counsel's discussion with Drs. Thompson Rudner (the State's witnesses), Dr. Hilkey (a psychologist), and counsel's review of the medical records. Without discussing the medical case and possible suicide defense with any independent medical expert, however, by failing to provide the Records to the State's medical experts when discussing the possibility of suicide, and by failing to pursue production of Harris' psychiatric records when the medical records clearly indicated she was receiving psychiatric treatment in 1993, Trial Counsel's investigation fell below what reasonable professional judgment would support. Had Trial Counsel obtained the psychiatric records, for example, they would have noted Harris' 1993 crying spells, night sweats, and comment that she "wishe[d] to be dead."

And though the court need not rely on the state court's analysis, it is apparent that it was faulty: the court of appeals approved the trial court's conclusion that the Records were unnecessary insofar as Trial Counsel had decided not to pursue a suicide defense. The problem, of course, is that Trial Counsel did offer (only weakly) the possibility of suicide to the jury and their decision not to use the Records was based on a failure to properly investigate them.

The court of appeals also held in the alternative that even if Trial Counsel's performance was objectively unreasonable, Scanlon was not prejudiced by such a failure. Scanlon, 176 N.C. App. at 442, 626 S.E.2d at 791. It noted that the trial court's finding of no prejudice was "clearly supported by competent evidence of record" which "adequately support[s] the trial court's conclusion of law." Id.

While this court may have reached a different decision, it cannot say on this record that the North Carolina Court of Appeals' conclusion that Trial Counsel's failures did not prejudice Scanlon was unreasonable under Strickland. As noted earlier, there was significant evidence of Scanlon's guilt that would not have been controverted by the use of the Records at trial, including the fact that Scanlon had a key to Harris' residence, his presence in her house at the time of her murder, his theft of her belongings, his pawning of a ring in Durham at 4:12 p.m. on February 26, 1996, which matched that of Harris' nephew who lived with her, his pubic hair found on Harris' bed and DNA found on a cigarette butt, and his flight with her belongings. Important on the issue of manner of death, Harris had filed incident reports with the Durham Police Department against Scanlon for his check and credit-card fraud, Harris had fired a shot at Scanlon previously, Scanlon had threatened to kill Harris, out of fear for Scanlon Harris was arranging to have her locks changed and had her nephew move in with her three weeks before her death, and Harris had signs of a potential altercation — a black eye and bruise — at the time of her death. This evidence carries significant weight considering that Scanlon denied that he was present at Harris' house at the time of her death and presented a defense of alibi. While the court of appeals' decision as to prejudice is short on analysis, when "assessing the reasonableness of the state court's application of federal law, the federal courts are to review the result that the state court reached, not whether [its decision] [was] well reasoned." Wilson, 352 F.3d at 855. Given the trial evidence, this court cannot say that the court of appeals' decision that Scanlon failed to demonstrate that, absent Trial Counsel's errors, "the outcome of the proceeding would have been different" was unreasonable. Lawrence v. Branker, 517 F.3d 700, 709 (4th Cir. 2008), cert. denied, 129 S.ct. 162 (2008).

The court finds, therefore, that considering the evidence presented at trial to support Scanlon's guilt as to the murder conviction, when weighed in light of the MAR evidence, the court of appeals' decision that Scanlon was not prejudiced was not objectively unreasonable. See, e.g., Powell v. Kelly, 562 F.3d 656, 669 (4th Cir. 2009) (holding that the state court's analysis was not objectively unreasonable when it found that Strickland's prejudice prong was not satisfied because the court listed all the evidence presented to the jury that supported its finding).

III. CONCLUSION

The court has carefully reviewed those portions of the Report and Recommendation of the United States Magistrate Judge to which objections were made and has made a de novo determination. The court's determination is in accord with the Recommendation, except as explained herein, and the Recommendation is adopted as modified by the reasons set forth herein.

IT IS THEREFORE ORDERED that the State's motion for summary judgment (Doc. 10) be GRANTED, Scanlon's motion for summary judgment (Doc. 17) be DENIED, and the petition (Doc. 1) be DENIED.

As reflected by the court's analysis, the court finds that Scanlon has made a sufficiently substantial showing of the denial of a constitutional right with respect to the issue of prejudice under Strickland relating to Trial Counsel's failure to use the Records to warrant granting a certificate of appealability. See 28 U.S.C. § 2253(c)(2).

IT IS FURTHER ORDERED that a certificate of appealability is issued on the question whether, as to his claim for ineffective assistance of counsel, Scanlon was prejudiced by Trial Counsel's failure to use the Records and the expert testimony therefrom in attempting to establish reasonable doubt as to whether he was guilty of the murder of Harris. See 28 U.S.C. § 2253(c)(3).

A Judgment will be entered contemporaneously with this Order.