UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-3

PERRIE DYON SIMPSON,

Petitioner - Appellant,
versus
MARVIN POLK, 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, District
Judge. (CA-99-741-1)

Argued:

February 4, 2005

Decided:

April 21, 2005

Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished opinion. Judge Traxler wrote the opinion,

in which Judge Motz and Judge Gregory joined.

ARGUED: Robert Mauldin Elliot, ELLIOTT, PLISHKO & MORGAN, P.A.,

Winston-Salem, North Carolina; Polly D. Sizemore, HILL, EVANS,
DUNCAN, JORDAN & DAVIS, P.L.L.C., Greensboro, North Carolina, for
Appellant. Barry Steven McNeill, Assistant Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Joseph P. Gram, HILL, EVANS, DUNCAN, JORDAN &
DAVIS, P.L.L.C., Greensboro, 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Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

TRAXLER, Circuit Judge:

Perrie Dyon Simpson was convicted of capital murder and
sentenced

to

death

in

North

Carolina

state

court.

After

unsuccessfully challenging his murder conviction in state court on

direct review and in state habeas proceedings, Simpson filed a
petition for writ of habeas corpus in federal district court.
28 U.S.C.A. 2254 (West 1994 & Supp. 2004).
denied

his

certificate

application
of

for

relief,

appealability.

We

and

See

The district court

declined

granted

to

issue

certificate

a
of

appealability to review three claims. See 28 U.S.C.A. 2253(c)(1)

(West Supp. 2004).

For the reasons set forth below, we affirm.

I.
On

August

27,

1984,

Simpson

and

his

sixteen-year-old

girlfriend, Stephanie Yvette Eury, forced their way into the home
of Reverend Jean Ernest Darter, a 92-year-old retired minister,
burglarized the home, and murdered Reverend Darter.
Doris Faircloth, the victims daughter, became concerned when
she could not reach her father by telephone, and she and her
husband drove to the victims home that evening.

As they entered

the home, they observed that all of the lights were off except for
a bathroom light.

Reverend Darter was found lying across his bed

with a strap tying his neck to the bedpost.

According to Ms.

Faircloth, what she saw was so horrible that [she] seemed not to

be able to see it all collectively, but rather in bits and

pieces.

State v. Simpson, 462 S.E.2d 191, 197 (N.C. 1995).

Officers responding to the murder scene found no signs of

forced entry.
cut.

The telephone cords in the hall and bedroom had been

In one bedroom, the sheets and covers on the bed were wadded

up, the dresser drawers had been pulled out, and the contents from
the drawers had been dumped onto the floor.
were

found

lying

in

the

kitchen

refrigerator doors were cracked open.

sink

and

A number of knives
the

freezer

and

In a storage area adjacent

to the kitchen, the officers found a carton of glass Tab bottles

with one bottle missing.
bathroom sink.

A pack of razor blades was in the

The officers also found a writing pad with the

names Lisa Marie Johnson and Curtis Anthony Parker written on

it.

Reverend Darter was found lying on his bed, with his feet on

the floor.

The scene was further described by the North Carolina

Supreme Court as follows:

Two belts were wrapped around Reverend Darters neck.
The outer belt was the largest and thickest, and it was
tied to the bedpost.
The inner belt was broken.
Reverend Darters face was bloated and bloody. He had
glass in his left eye, and a design composed of many
small circles and dots was imprinted on the Reverends
left cheek. Both of the Reverends arms were cut open
from his elbows to his wrists. Blood was on the bed and
had run down the side of the bed and formed a puddle on
the floor; there was blood on the walls and window
blinds. Also on the bed were the contents of two dresser
drawers, shattered glass, the Reverends broken glasses,
his false teeth, a razor blade, and the neck of a glass
Tab bottle.
Id.
4

Eight latent fingerprints and Reverend Darters telephone bill

led police investigators to Simpson.

According to the telephone

bill, a long-distance telephone call had been placed on the day

before the murder from Reverend Darters house to a telephone
number belonging to a woman named Ruby Locklear in Greensboro,
North Carolina.

When questioned, Ms. Locklear told the officers

that Simpson would occasionally call her from Reidsville when he

wanted to reach his father.

The fingerprints matched those of

Simpson.
An autopsy performed by pathologist Michael James Shkrum
revealed further details of the gruesome crime:
[T]he Reverend sustained blunt-trauma injuries to his
face causing swelling and bruising. The bone between the
eye socket and the brain was fractured, the cheek and the
jaw bone were broken, and the Reverends tongue was torn.
Strangulation bruises appeared on the neck. It was Dr.
Shkrums opinion that Reverend Darter died from ligature
strangulation, and that it would have taken several
minutes for his heart to stop beating.
It was Dr.
Shkrums further opinion that Reverend Darter experienced
pain. Dr. Shkrum also testified that because Reverend
Darter sustained bruising around his face, his heart was
still beating when those injuries were inflicted.
Id. at 199.
During the investigation, officers discovered that there was
an

outstanding

assault.

warrant

for

Simpson

in

Greensboro

for

simple

Simpson was arrested on September 21, 1984, and advised

of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

He

initially claimed to know nothing about the murder, denied ever

having met or seen Reverend Darter, and denied ever having been
5

inside

Reverend

Greensboro

for

Darters
a

bond

home.

After

hearing

on

the

he

was

simple

transported
assault

to

charge,

however, Simpson agreed to talk with the officers about the Darter
murder and ultimately executed a sixteen-page, detailed written
statement confessing to the crime.

The North Carolina Supreme

Court summarized the confession as follows:

Defendant confessed that on 26 August 1984, he and his
pregnant, sixteen-year-old girlfriend, Stephanie Eury,
went for a walk to look for some money.
Stephanie went
to the front door of Reverend Darters house and rang the
doorbell. She told Reverend Darter she was hungry, so he
brought her a diet soft drink and gave the defendant a
glass of milk.
Stephanie asked if they could come
inside, so the three went into the front living room.
Stephanie told the Reverend that she and defendant were
traveling to Florida and had gotten stuck in Reidsville.
The Reverend suggested they contact the Salvation Army or
the police. Stephanie asked Darter if he could give them
some money, and Reverend Darter gave her four dollars,
explaining that was all the money he had in cash.
Defendant told police that he and Stephanie noticed the
preacher had a nice home. After getting permission to
use the telephone, defendant called Ruby Locklear in
Greensboro to see if she had seen defendant's father.
When defendant got off of the telephone, he heard
Stephanie tell the Reverend her name was Lisa and
defendant's name was Curtis Anthony. Defendant watched
the Reverend write these names down on a pad of paper.
Defendant told the police that before he and Stephanie
left the house, the Reverend gave them some sponge cake
and peaches to take with them. Defendant admitted that
Reverend Darter was real friendly to us and was very
helpful.
The next day, 27 August 1984, defendant said that he and
Stephanie both talked about going back to preacher
Darters house to get some money. Stephanie and I decided
we would go back to Darters house and we would not come
back empty-handed no matter what. Defendant told police
that he and Stephanie walked around outside waiting for
it to get dark. Once it was dark enough, the two walked
to Reverend Darters house, looking around to make sure
6

no one saw them.

They rang the doorbell, and when
Reverend Darter answered the door, they forced their way
inside.
Reverend Darter ran to the telephone, but
defendant
pulled the
preachers
hands
off
the
telephone.
Defendant told Stephanie to cut the
telephone cords, and in the meantime, he was struggling
with Preacher Darter holding onto the preacher's arms to
control him and force him back in his bedroom so he would
tell me where some money was.
Defendant held the
Reverend down on the bed, with his hands around his neck,
telling him he wanted money or else, but the Reverend
told defendant he did not have any money.
The Reverend told defendant that if he was killed, he
knew he was going to heaven. Defendant told the police,
this frustrated me and I grabbed him tighter around the
throat. Defendant reached across the bed and got a belt
and looped it around his neck and tightened the belt.
While he held the belt tight, defendant rummaged through
two dresser drawers Stephanie had dumped onto the bed.
Not finding anything he wanted, defendant drew the belt
more tight around his neck and I told the preacher he had
better tell us where some more money was but the preacher
could not talk because he was choking. When the first
belt broke, defendant got another, thicker belt and
looped this leather belt around the preachers neck and
tightened up on this leather belt.
Then I called
Stephanie to bring me something in the bedroom to kill
this preacher with.
When defendant did not receive any weapon to his liking,
he called for Stephanie to come and hold the belt while
he went in the kitchen and looked for some device to
beat the old preacher and finish him off. He picked up
a full pop bottle and then decided to put it back and get
an empty bottle.
He returned to the bedroom, pulled
tight on the belt, and hit the old preacher hard three
times with this bottle and on the third blow the soft
drink bottle broke. Defendant then decided to tie the
end of the belt to the bedpost, and he went into the
bathroom and got a double-edged razor blade. I held
this double-edged razor blade between my right index
finger and right thumb and then I sliced the preachers
arms from the biceps all of the way down the under side
of the forearms to the wrist.
I cut both of the
preachers arms. Stephanie gathered a bag of food, a
porcelain lamp, a radio, and boxes of Kleenex and packed
them in a plastic laundry basket. The last thing we did
7

before leaving the preachers house was to turn off all

the lights except the bathroom light.
Simpson, 462 S.E.2d at 198-99.

According to one officer, when

Simpson read the statement out loud to check for mistakes he

laughed when he came to a portion of the statement where he had
used profanity.
On March 4, 1985, Simpson entered a plea of guilty to firstdegree murder, conspiracy to commit murder, and armed robbery.
Under a plea agreement, Simpson reserved his right to appeal from
the state trial courts denial of his motion to suppress his
confession and the state dismissed the charge of first-degree
burglary.

A sentencing hearing was held, at the conclusion of

which the jury returned a verdict recommending a sentence of death.

On July 7, 1987, the Supreme Court of North Carolina rejected
Simpsons appeal of the order refusing to suppress his confession
and affirmed the convictions, but vacated the sentence of death and
remanded for a new sentencing hearing due to an error that had
occurred during closing argument. See State v. Simpson, 357 S.E.2d
332 (N.C. 1987), cert. denied, Simpson v. North Carolina, 485 U.S.
963 (1988).

A second sentencing hearing was held in May 1989, and

Simpson again received a sentence of death. This time, the Supreme

Court of North Carolina vacated the sentence and remanded for a new
sentencing hearing due to an error under McKoy v. North Carolina,
494 U.S. 433 (1990).

See State v. Simpson, 415 S.E.2d 351, 353

(N.C. 1992).
8

In January 1993, Simpsons third sentencing proceeding took

place.

In mitigation, Simpson presented testimony of various

persons who knew him during his childhood and his case manager at
the prison where he had been incarcerated pending trial. The heart
of the case in mitigation, however, centered on the testimony of
Ms. Joan Landreth, a social worker, and Dr. Claudia Coleman, a
clinical psychologist.

In summary, Ms. Landreth related to the

jury that Simpson had been removed from his mother at birth and
placed

into

the

North

Carolina

foster

languished for the rest of his childhood.

care

system,

where

he

Dr. Coleman opined that

this background, along with a personality disorder, exacerbated

Simpsons severe and untreated attention deficit hyperactivity
disorder (ADHD) causing him to suffer from severe mental and
emotional disturbances and an impaired ability to conform his
conduct to the requirements of the law.
At the conclusion of the sentencing hearing, the jury found
as aggravating factors that the murder of Reverend Darter was
committed by Simpson while he was engaged in the commission of
robbery and that the murder was especially heinous, atrocious, or
cruel. The jury found thirteen mitigating circumstances: (1) that
the

murder

influence

was
of

committed

mental

or

while

the

emotional

defendant

disturbance;

was
(2)

under

the

that

the

defendant aided in the apprehension of another capital felon; (3)

that the mental or emotional age of the defendant at the time of

the murder was a mitigating circumstance; (4) that the defendants

development was adversely affected by the lack of permanence in his
life resulting from frequent changes in foster home and school
placements; (5) that the defendant was taken into and removed from
the home and care of his grandmother during which time his brother,
Daryl, continued to remain in the home and care of his grandmother;
(6) that the defendant experienced mental or emotional disturbance
beginning at an early age; (7) that the defendants mental or
emotional disturbance adversely affected his ability to perform in
school; (8) that the defendants mental or emotional disturbance
adversely affected his ability to sustain employment; (9) that the
defendants behavior has improved during times when he was in a
structured environment; (10) that prior to his arrest for murder,
the defendant freely and voluntarily confessed, both orally and in
writing, to his involvement in the murder; (11) that the defendant
did not minimize his personal culpability for the murder in the
course of his confession; (12) that the defendant voluntarily
consented to a search of his portion of the Eury residence for
evidence of the robbery and murder; and (13) that the defendant
voluntarily entered a plea of guilty to the offenses of murder,
armed robbery, and conspiracy to commit murder.

However, the jury

unanimously decided that the aggravating circumstances outweighed

these mitigating circumstances and recommended that Simpson be
sentenced to death for the murder of Reverend Darter.

10

On direct appeal to the North Carolina Supreme Court, Simpson

asserted,
allowing

among
the

other

claims,

prosecution

to

that

the

trial

cross-examine

Dr.

court

erred

Coleman

in

about

diagnoses and opinions of other physicians and psychologists which

were contained within the reports she had reviewed and erred in
refusing

to

allow

Ms.

Landreth

to

testify

regarding

several

additional matters that he contends would have had mitigating

value.

The North Carolina Supreme Court affirmed Simpsons death

sentence, see Simpson, 462 S.E.2d at 200, and the United States
Supreme Court denied Simpsons petition for writ of certiorari, see
Simpson v. North Carolina, 516 U.S. 1161 (1996).
In 1997, Simpson was appointed new legal counsel and initiated
state

post-conviction

proceedings

by

filing

motion

for

appropriate relief (MAR) in the North Carolina Superior Court.

The motion alleged, among other things, that Simpsons plea of
guilty entered in 1985 was not the result of a knowing and informed
decision because he did not fully understand the consequences of
pleading

guilty.

The

state

MAR

court

denied

Simpson

post-

conviction relief and the North Carolina Supreme Court denied

review.

See State v. Simpson, 539 S.E.2d 648 (N.C. 1999).

Pursuant to 28 U.S.C.A. 2254, Simpson filed this petition

for a writ of habeas corpus in the district court on August 27,
1999.

The district court denied the petition, and declined to

issue a certificate of appealability under 28 U.S.C.A. 2253.

11

We

then granted a certificate of appealability to address Simpsons

constitutional claims that (1) his death sentence violated the
Confrontation Clause of the Sixth Amendment because the state trial
court

allowed

the

prosecution

to

cross-examine

Dr.

Coleman

concerning the diagnoses and opinions of other providers; (2) his

Eighth Amendment right to introduce evidence in mitigation was
violated by the trial courts exclusion of certain testimony by Ms.
Landreth;

and

voluntary.

(3)

that

his

guilty

plea

was

not

knowing

and

We now affirm.

II.
Pursuant to the limits on federal habeas review of a state
conviction, when a habeas petitioners claim has been adjudicated
on the merits in State Court proceedings, we may not grant relief
unless that adjudication resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States

or

resulted

in

decision

that

was

based

on

an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding. 28 U.S.C.A. 2254(d);
see also Williams v. Taylor, 529 U.S. 362 (2000).

A state courts

decision is contrary to clearly established federal law under

2254(d) where it applies a rule that contradicts the governing
law set forth by the United States Supreme Court or confronts a

12

set of facts that are materially indistinguishable from a decision

of

[the

Supreme

Court]

and

nevertheless

different from [that] precedent.

decision

involves

an

arrives

Id. at 405-06.

unreasonable

at

result

A state courts

application

of

clearly

established federal law if the state court identifies the correct

governing

legal

rule

from

[the

Supreme]

Courts

cases

but

unreasonably applies it to the facts of the particular state

prisoners case.

Id. at 407.

Factual determinations made by the

state court shall be presumed to be correct, and [t]he applicant

shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.
Supp. 2004).

28 U.S.C.A. 2254(e)(1) (West

In cases where 2254(d) provides no barrier to

habeas relief and it is determined that a constitutional error

occurred in the state court proceedings, the petitioner must also
show that the error had a substantial and injurious effect or
influence in determining the jurys verdict.
Lee,

290

F.3d

663,

679

(4th

Cir.

2002)

See Fullwood v.

(quoting

Brecht

v.

Abrahamson, 507 U.S. 619, 637 (1993)).

III.
A.
We begin with Simpsons claim that his Sixth Amendment right
to confrontation was violated because the trial court permitted the
prosecution to cross-examine his expert, Dr. Claudia Coleman, about

13

diagnoses and opinions of mental health professionals who had

examined Simpson prior to the murder.
Dr. Coleman is an expert in clinical psychology, neurological
psychology, and forensic psychology.

She was retained in 1989,

five years after the murder of Reverend Darter, to interview and

evaluate Simpson for purposes of mitigation.

Dr. Coleman reviewed

Simpsons history, medical records, and social services records,

and conducted a psychological examination.

On direct examination,

Dr. Coleman testified that, based upon her evaluation, it was her
opinion that Simpson suffered from severe ADHD, and that this
condition, left untreated, had resulted in destructive, aggressive,
and disruptive behavior which was further exacerbated by Simpsons
unstable social environment and a mixed personality disorder.

As

a result, Dr. Coleman opined that Simpson suffered from severe

mental and emotional disturbances at the time of the murder and
that his capacity to conform his conduct to the requirements of the
law was impaired.
On cross-examination, the prosecutor questioned Dr. Coleman
about the medical records and social services records that she had
compiled, reviewed, and relied upon during the course of her
evaluation and, in particular, questioned her about the diagnoses
and opinions recorded by the physicians and psychologists in those
records.

Dr.

Coleman

acknowledged

that

she

had

relied

upon

information contained within the reports in formulating her expert

14

opinions, but testified that she disagreed with the information

contained within them that contradicted her diagnosis of ADHD. The
prosecution utilized this cross-examination to point out that none
of the prior professionals had arrived at a diagnosis of ADHD and
to suggest that the jury reject Dr. Colemans opinions offered in
mitigation.
The

Sixth

Amendment

provides

that

[i]n

all

criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him. U.S. Const. amend. VI.
At the time of Simpsons third sentencing hearing, an unavailable
hearsay declarants statement was admissible only if it [bore]
adequate indicia of reliability.
66 (1980).

Ohio v. Roberts, 448 U.S. 56,

Reliability could be established if the evidence fell

within a firmly rooted hearsay exception or if there was a

showing of particularized guarantees of trustworthiness.

Id.1

On direct appeal, the North Carolina Supreme Court rejected

Simpsons claim that the prosecutions cross-examination of Dr.
Coleman resulted in a violation of his constitutional right to
confrontation, and held that [p]ursuant to [North Carolina Rule

In Crawford v. Washington, 124 S. Ct. 1354 (2004), the

Supreme Court overruled Ohio v. Roberts, 448 U.S. 56 (1980). When
the death sentence was imposed upon Simpson, however, Roberts was
the controlling precedent. See Yarborough v. Alvardo, 124 S. Ct.
2140, 2147 (2004) (For purposes of 28 U.S.C. 2254(d)(1), clearly
established law as determined by th[e] Court refers to the
holdings, as opposed to the dicta, of th[e] Courts decisions as of
the time of the relevant state-court decision.) (internal
quotation marks omitted).
15

of Evidence] 705, Dr. Coleman was properly cross-examined about

other diagnoses contained within psychiatric reports upon which she
relied, although she ultimately formed a differing diagnosis.
Simpson, 462 S.E.2d at 213.

In doing so, the state court noted

that the case was indistinguishable from State v. Allen, 367 S.E.2d
626, 630-31 (N.C. 1988), which had held that such contrary opinions
contained within the records and reports relied upon by an expert
may be highlighted for the purpose of impeaching the expert.
On federal habeas, Simpson argues that the state court applied
an improper evidentiary standard of review as evidenced by its
reference to Allen and the absence of any explicit analysis as to
whether the contrary opinions and diagnoses introduced via the
cross-examination of Dr. Coleman fell within a firmly rooted
hearsay

exception

guarantees

of

or

otherwise

trustworthiness

as

contained
required

particularized
under

Roberts.

Consequently, he argues, the North Carolina courts adjudication of

his claim was contrary to clearly established Supreme Court
precedent, and that we should grant habeas relief because the
opinions and diagnoses of the other mental health providers met
neither of the exceptions set forth in Roberts.
We disagree.

Although the North Carolina Supreme Court did

not explicitly reference the Roberts inquiry, we cannot conclude

from this omission that it rested its determination solely upon a
conclusion that the cross-examination was appropriate under state

16

evidentiary rules.

See Bell v. Cone, 125 S. Ct. 847, 853 (2005)

(per curiam) (noting that [f]ederal courts are not free to presume
that a state court did not comply with constitutional dictates on
the basis of nothing more than a lack of citation).

Nor can we

otherwise conclude that the state courts adjudication of the

constitutional claim resulted in a decision that was contrary to or
an unreasonable application of the principles of Roberts.
Under the North Carolina Rules of Evidence, [t]he facts or
data in the particular case upon which an expert bases an opinion
or inference may be those perceived by or made known to him at or
before the hearing and, [i]f of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible in
evidence. N.C. Gen. Stat. 8C-1, Rule 703.

The expert is

required to disclose such underlying facts or data on direct

examination or voir dire before stating the opinion, if the
adverse party requests, and may in any event be required to
disclose the underlying facts or data on cross-examination.

N.C.

Gen. Stat. 8C-1, Rule 705.

Here, the North Carolina Supreme Court clearly identified the
issue

before

it

as

Confrontation

Clause

challenge

to

the

admissibility of the underlying statements on cross-examination.

Only then did it turn to a discussion of North Carolinas Rules of
Evidence and its Allen decision.

17

In Allen, the North Carolina

court

had

noted

little

distinction

between

the

reasonable

reliance standard articulated in North Carolinas rule of evidence

governing expert testimony and the inherently reliable standard
it had applied to such testimony prior to the adoption of the rule.
And in State v. Huffstetler, 322 S.E.2d 110 (N.C. 1984), cited in
Allen,

the

contention

court
that

had

his

specifically

Sixth

rejected

Amendment

right

the
to

defendants
confront

his

accusers was violated because he could not cross examine the

person who actually performed some of the tests upon which the
expert witness had relied.

Id. at 119.

Under a fair reading of the North Carolina Supreme Courts

decision in this case, and the Allen and Huffstetler cases cited
therein, it is apparent that the North Carolina court was well
aware of the Confrontation Clause claim before it, and followed its
prior holdings that reports which are of the type reasonably
relied upon by experts in the particular field in forming opinions
or inferences are inherently reliable.

As such, they may be

brought out by the proponent on direct examination, or by the

adverse party on cross-examination, pursuant to Rule 703 or 705,
without running afoul of the Confrontation Clause.

We cannot say

that this adjudication of Simpsons confrontation claim is contrary

to Roberts simply because it referenced state evidentiary rules in
the analysis, nor do we view its adjudication of the claim as

18

having resulted in a decision that was unreasonable in light of the

governing Supreme Court precedents.2

B.
Simpson next argues that he is entitled to habeas relief
because

the

state

trial

court

excluded

allegedly

relevant

mitigating evidence during the penalty phase of his trial, in

violation of the Eighth and Fourteenth Amendments to the United
States Constitution.
Under the Eighth Amendment, juries may not be precluded from
considering any relevant, mitigating facets of the character and
record

of

the

proceedings.

individual

offender

during

capital

sentencing

Skipper v. South Carolina, 476 U.S. 1, 8 (1986); see

The State argued that Simpsons application for federal

habeas relief should also be denied under 2254(d) because it was
not clearly established that the Confrontation Clause even
applied to state capital sentencing proceedings when Simpsons
death sentence became final in 1995. Compare Maynard v. Dixon, 943
F.2d 407, 414 n.5 (4th Cir. 1991); Bassette v. Thompson, 915 F.2d
932, 939 (4th Cir. 1990); with Proffitt v. Wainwright, 685 F.2d
1227, 1254 (11th Cir. 1982). The Supreme Court of North Carolina,
however, has held that the Confrontation Clause applies to capital
sentencing hearings, see State v. McLaughlin, 462 S.E.2d 1, 19
(N.C. 1995), and did not address or reject Simpsons Confrontation
Clause claim based upon a holding that the right was inapplicable
to capital sentencing proceedings. Because we conclude that the
North Carolina courts denial of habeas relief on the merits of the
Confrontation Clause issue was not contrary to or an unreasonable
application of Supreme Court precedent pertaining to that Clause,
we need not reach the question of whether it would also be
appropriate to deny relief under 2254(d) on the basis that it was
not clearly established that the protections of the Confrontation
Clause applied to the state sentencing proceedings at the time.
19

also Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982) (Just as the
State may not by statute preclude the sentencer from considering
any

mitigating

factor,

neither

may

the

sentencer

refuse

to

consider, as a matter of law, any relevant mitigating evidence.);

Lockett v. Ohio, 438 U.S. 586, 604 (1978) (holding that juries may
not be precluded from considering, as a mitigating factor, any
aspect

of

defendants

character

or

record

and

any

of

the

circumstances of the offense that the defendant proffers as a basis

for a sentence less than death) (footnote omitted).
During the penalty phase of Simpsons trial, the prosecution
presented overwhelming evidence of the brutal nature of this crime,
not

the

least

of

which

confession of the events.

was

Simpsons

sixteen-page

detailed

Simpsons Eighth Amendment claim arises

from limitations placed by the trial court upon the scope of the
testimony offered by Simpsons social worker, Ms. Landreth.
Ms. Landreths testimony regarding Simpson was derived from
his foster care records and her personal interactions with him from
the time that he was ten years old until he was seventeen years
old.

Specifically, she testified that Simpson was placed into the

foster care system when he was ten days old, and that he remained
there until he reached the age of majority.

She offered extensive

and detailed testimony regarding the difficulties that her office

had in establishing a permanent plan for Simpson and the frequent
relocations of Simpson within the foster care system, including

20

brief stays with his grandmother that did not work out for him and
that were particularly disappointing to him.

She also testified

regarding the effect these moves had upon his education and, in
particular, testified that he developed academic and behavioral
problems during this time period.
Ms.

Landreth

family history.

also

provided

testimony

regarding

Simpsons

She testified that Simpsons older brother Joe,

Jr., had been institutionalized, that Simpsons grandmother kept

and raised his older brother Daryl, that his younger brother
Anthony had been released to be adopted, and that his younger
sister Charita was allowed to live with and be raised by their
mother.

However, Ms. Landreth testified that neither of Simpsons

parents wanted to release him for adoption.

She testified that

Simpson was aware of the location of his siblings as he grew up,

and that she and Simpson often talked about his brothers and
sisters and his family.

J.A. 144.

According to Ms. Landreth,

Simpson had a great deal of frustration and a great deal of lack

of understanding about why his siblings could be raised by family
members and he could not be.

J.A. 144.

Simpsons specific complaint stems from the trial courts

refusal to allow Ms. Landreth also to testify that Simpson had been
placed in foster care immediately upon his birth because his
parents had severely abused his older brother Joe, Jr., and to
allow Ms. Landreth to elaborate upon a conversation she had with

21

Simpson about the adoption decision made by his parents.

On voir

dire, Ms. Landreth testified that Simpson had a number of questions

as to why he could not stay in one place, which led to discussions
about adoption and his parents unwillingness to give him up for
adoption. However, Ms. Landreth testified that [h]is reaction was
not to not being adopted, but rather to not having a permanent
place to stay, and his reactions ranged from being really sad and
tearful to being very angry.

J.A. 98.

Simpson also takes issue

with the trial courts refusal to allow Ms. Landreth, who had been
qualified as an expert in child placement and permanency planning,
to testify that Simpson was under the influence of mental and
emotional disturbances as he grew up and that his ability to
conform his conduct to the requirements of the law was impaired.
The state trial court ruled that Ms. Landreth could testify
that Simpson was placed into foster care at birth and to testify
without restriction about any discussion she had about his being
moved so many times and his reaction to that.

J.A. 100.

However,

the court ruled that the abuse of Joe, Jr., prior to Simpsons
birth was not relevant, mitigating evidence, and that Simpsons
parents refusal to release him for adoption was not admissible
because

this

was

something

Ms.

Landreth

had

told

Simpson

in

response to questions he had asked about the lack of a permanent

place to stay.

22

On direct appeal, the North Carolina Supreme Court rejected

Simpsons

claim

with

evidence,

holding

regard

that

Ms.

to

the

first

Landreths

two

categories

additional

of

testimony

regarding Joe, Jr., and Simpsons parents was not relevant to the
mitigation of Simpsons crime.

With regard to the balance of the

excluded testimony by Ms. Landreth, the North Carolina Supreme

Court assumed, without deciding, that it was error for the trial
court to exclude the evidence, but concluded that any error was
harmless because the testimony would have been merely cumulative of
Dr. Colemans expert testimony.
On federal habeas review, we must deny relief if the North
Carolina Supreme Courts adjudication of Simpsons Eighth Amendment
claim resulted in a decision that was neither contrary to nor an
unreasonable application of Supreme Court precedent. However, even
if we assume that the excluded testimony of Ms. Landreth would have
supported one or more of the mitigating circumstances Simpson
offered to the jury, we must still deny habeas relief unless the
error had a substantial and injurious effect or influence in
determining

the

jurys

verdict,

Fullwood,

290

F.3d

at

679

(quoting Brecht, 507 U.S. at 637), or we are in grave doubt as

to

the

harmlessness

of

[the]

error,

id.

(quoting

ONeal

McAninch, 513 U.S. 432, 436 (1995)).

In order for an error to have a substantial and injurious
effect or influence, it must have affected the verdict.
Because juries have a limited number of responses to give
in a criminal trial--guilty, innocent, or cannot
23

v.

decide--an error is harmless when the error did not

substantially sway or substantially influence the
response.
Thus, if the evidence is not merely sufficient, but
so powerful, overwhelming, or cumulative that the error
simply could not reasonably be said to have substantially
swayed the jurys judgment, then the error is not
harmful. On the other hand, if the federal court is in
grave doubt about whether the trial error had a
substantial and injurious effect or influence on the
verdict and therefore finds itself in virtual equipoise
about the issue, the error is not harmless.
Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir. 1996) (en banc)
(citations and internal quotation marks omitted).
In

this

case,

the

aggravating

evidence

supporting

imposition of the death sentence was quite compelling.

the

According

to Simpsons confession, which was consistent with the physical

evidence, he and Eury approached Reverend Darters home, accepted
his hospitality and assistance, and then plotted and planned to
return the next day to rob him.

When they returned, Simpson forced

his way into the home, attacked Reverend Darter, who was 92 years
old at the time, strangled him with his bare hands while demanding
money, and then strangled him with a belt that had been tied around
his neck until it broke.

He then tied a second, stronger belt

around Reverend Darters neck to strangle him, and used this belt
to tie the Reverends neck to the bedpost.

To finish him off,

Simpson then beat Reverend Darter with a glass bottle until it

broke

and

bloodied

him

and

used

24

razor

blade

to

slit

the

Reverends arms from his biceps to his wrists. Simpson, 462 S.E.2d
at 199.
Weighed against this aggravating evidence, Simpson advanced
mitigating evidence that he had been raised since birth in a foster
care setting, that he was never placed permanently with a foster
family, and that as a result of this lack of permanency, he was
mentally and emotionally impaired and had difficulty controlling
his behavior. Indeed, at the conclusion of the sentencing hearing,
one or more jurors found, as mitigating circumstances, that Simpson
committed the murder while under the influence of a mental or
emotional disturbance, that his mental or emotional age was a
mitigating

circumstance,

that

his

development

was

adversely

affected by the lack of permanence in his life due to the frequent

foster home and school placement changes, that he was taken into
and then removed from the home and care of his grandmother during
which time his brother, Daryl, continued to remain in the home and
care of his grandmother, that he experienced mental or emotional
disturbance beginning at an early age, that his mental or emotional
disturbance adversely affected his ability to perform in school,
and that his mental or emotional disturbance adversely affected his
ability to sustain employment.
Having throughly reviewed the record in this case, it is clear
that Simpsons jury was provided with substantial evidence of
Simpsons unfortunate childhood and the problems he developed as a

25

result of his lack of a permanent home, yet unanimously found this

background to be insufficient (even combined with six additional
mitigating circumstances not related to his background) to outweigh
the heinous nature of the murder of Reverend Darter.

We are

satisfied that the additional testimony of Ms. Landreth, excluded

by the state trial court, would have added little to the factual
description of Simpsons background, and that the North Carolina
Supreme Courts holding that Ms. Landreths opinion testimony, also
excluded by the trial court, was largely cumulative of the opinions
expressed by Dr. Coleman, a forensic psychologist that had been
retained and qualified to evaluate and offer expert opinions
regarding Simpsons mental and emotional status in the context of
his background.

In sum, given the strength of the aggravating

evidence compared to the relative weakness of the admitted and

excluded evidence offered in mitigation, we are confident that the
exclusion of the additional testimony by Ms. Landreth did not have
a substantial and injurious effect or influence on the outcome of
the sentencing proceeding.

Therefore, even if we assume that the

state trial courts exclusion of the testimony violated Simpsons

Eighth Amendment right to introduce relevant, mitigating evidence,
he is not entitled to federal habeas relief as a result of the
error.

26

C.
Simpsons final claim is that his plea of guilty was not given
knowingly and voluntarily, as required by Godinez v. Moran, 509
U.S. 389 (1993).
It is well settled that [a] criminal defendant may not be
tried unless he is competent, and he may not waive his right to
counsel

or

plead

intelligently.

guilty

competent

he

does

so

competently

and

Godinez, 509 U.S. at 396 (internal citation and

quotation marks omitted).

is

unless

to

necessary. . . .

stand

However, [a] finding that a defendant

trial

is

not

all

that

is

In addition to determining that a defendant who

seeks to plead guilty . . . is competent, a trial court must

satisfy itself that the waiver of his constitutional rights is
knowing and voluntary. Id. at 400; see also Brady v. United
States, 397 U.S. 742, 748 (1970) (Waivers of constitutional rights
not only must be voluntary but must be knowing, intelligent acts
done with sufficient awareness of the relevant circumstances and
likely consequences.).

The competency inquiry focuses on the

defendants mental capacity; the question is whether he has the

ability to understand the proceedings.
n.12.

Godinez, 508 U.S. at 401

The knowing and voluntary inquiry, by contrast, is to

determine

whether

the

defendant

actually

does

understand

the

significance and consequences of a particular decision and whether

the decision is uncoerced.

Id.

27

The standard for determining

whether a guilty plea is constitutionally valid is whether the

guilty plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.

In applying

this standard, courts look to the totality of the circumstances

surrounding

the

guilty

plea,

granting

the

defendants

declaration of guilt a presumption of truthfulness.

solemn

Walton v.

Angelone, 321 F.3d 442, 462 (4th Cir. 2003) (internal citation
omitted).
As

recounted

above,

Simpson

confessed

to

the

murder

of

Reverend Darter shortly after his arrest, describing in detail how

he and Eury planned the crime, forced their way into the residence,
and

carried

out

the

gruesome

murder.

After

unsuccessfully

attempting to suppress the confession on the grounds that it was

coerced, Simpson withdrew his plea of not guilty and entered a plea
of guilty to first degree murder, conspiracy to commit murder, and
armed robbery.

Under the plea agreement, Simpson reserved his

right to appeal the state trial courts denial of his motion to

suppress the confession and the prosecution agreed to dismiss the
charge of first degree burglary.
On March 4, 1985, the state trial judge accepted Simpsons
plea

of

guilty

after

questioning

him

twice

concerning

the

voluntariness of the plea.3

After engaging Simpson in the first series of questions, the

trial court realized that he had forgotten to swear Simpson to tell
the truth and repeated the colloquy a second time.
28

Q:
Now Mr. Simpson, I will ask you again the various
questions. Are you able to hear me and understand me?
A:

Yes, sir.

. . . .
Q:
Have you had time to talk to your lawyers about your
cases?
A:

Yes, sir.

Q:

Are you satisfied with the services of your lawyer?

A:

Yes, sir.

. . . .
Q:
Have either of your lawyers done anything in
representing you that you did not authorize them to do or
did not approve of their doing?
A:

No, sir.

Q:
You understand that you are pleading guilty to
murder in the first degree and conspiracy to commit
murder and armed robbery?
A:

Yes, sir.

Q:

Do you understand these three charges?

A:

Yes, sir.

Q:
And that upon your plea of guilty that you could be
sentenced to death or life imprisonment on the murder
case?
A:

Yes, sir.

Q:
Either under the felony murder or the premeditated
and deliberated murder, you understand that?
A:

Yes, sir.

. . . .

29

Q:
Do you understand that you have the right to plead
not guilty and be tried by a jury?
A:

Yes, sir.

Q:
And by pleading guilty that you waive certain rights
that you have if you plead not guilty?
A:

Yes, sir.

Q:
How do you plead to this charge, guilty or not
guilty?
A:

Guilty.

Q:

Are you in fact guilty?

A:

I am guilty.

Q:
You have heard what your lawyers said a minute ago
about the plea arrangement, do you understand that?
A:

Yes, sir.

Q:
Except for what you lawyer said has anyone made any
promises to you or threatened you in any way to influence
you to plead guilty?
A:

No, sir.

Q:
Have you entered a plea of guilty to each of the
charges of your own free will, knowing and understanding
what you are doing --A:

Yes, sir, I am guilty.

Q:

---And the consequences thereof?

A:

Yes, sir.

. . . .
Q:
Do you have any questions or statement to make about
what I have just said to you?
A:

No.

J.A. 36-39.
30

In 1997, Simpson filed his MAR in state court asserting that,

notwithstanding this colloquy, his plea had not been entered
knowingly and voluntarily. Specifically, Simpson claimed that his
mental and developmental condition caused by his chaotic upbringing
prevented him from fully understanding what he was doing.
1207.

J.A.

Simpson also claimed that he pled guilty based on a

misunderstanding about the penalty and that he was pressured to

plead guilty by his attorneys.

J.A. 1207.

The state MAR court held an evidentiary hearing on the claim,

during which Simpson again presented the testimony of Ms. Landreth
and Dr. Coleman, as well as testimony by Dr. Minta Saunders.

Ms.

Landreth testified that, in her opinion, Simpsons frequently

changing foster care placements adversely affected his decisionmaking skills and caused him to be dependent upon authority figures
for decision-making.

Dr. Coleman testified that, based upon her

evaluation in 1989, Simpsons ADHD had a moderate effect upon his

ability to process, remember, and reflect upon information, and to
consider, generate, and weigh alternatives.

This effect, in turn,

had some negative influence on [his] decisionmaking capabilities

in 1985.

J.A. 1131.

She acknowledged, however, that she had not

reviewed the plea colloquy from March of 1985 in formulating her

opinion,

and

testified

that

she

was

only

asked

the

general

question of whether or not [Simpsons] ADHD would affect his

decision-making capabilities, not any specific question about

31

his

plea

hearing.

J.A.

1134-35.

Dr.

Saunders,

clinical

psychologist who evaluated Simpson and testified at his first

sentencing hearing, opined that Simpson suffered from auditory
problems, ADHD, and a borderline personality disorder that rendered
him unable to make a knowing and voluntary plea.
Simpsons trial attorney also testified at the MAR hearing.
In her view, Simpson appeared at times to have difficulty focusing,
but she believed he understood her when she discussed the case.
Although she testified that there were times when . . . I dont
think he heard a word that we said, she also pointed out that
there were other times when he would sit there and he was much
calmer and we tried to talk to him and tell him what was going on
and why we felt he should plead guilty, and I felt like he knew
what we were saying.
at the time.

If I didnt, I wouldnt have pled him guilty

J.A. 1103.

Although counsel acknowledged having

serious reservations at the time about recommending that Simpson

plead guilty to the murder charge, they ultimately decided that it
was the best option in view of the detailed confession.
Simpson also testified at the MAR hearing, asserting generally
that he did not understand the implications of the guilty plea and
that he only pled guilty because he thought he would avoid a death
sentence by doing so.

Simpsons specific testimony, however,

reveals a great deal of understanding of the significance and

consequences of his decision.

For example, Simpson testified that

32

trial counsel advised him to plead guilty after their motion to

suppress the confession had been denied. He testified that counsel
discussed with him the fact that he could still appeal the denial
of

the

motion

to

suppress.

Simpson

testified

that

counsel

explained that:
once I entered the guilty plea [the] only thing that
probably could happen was the jury might would feel kind
of sympathetic toward me. . . . [T]hey said I go in the
courtroom and plead not guilty and the statement come up
saying Im guilty as sin, theres no way a jury believe
nothing I got to say. Thats what they said, Your best
bet go ahead and plead guilty and maybe things will work
out that they might feel sympathetic for you and give you
life.
J.A. 1015.

In sum, Simpson admitted that he understood what the

defense strategy at the time was going to be by entering the

guilty plea[] maybe the jury would have some mercy and sentence
[him] to life in prison.

J.A. 1015.

Simpson testified that he

understood that, after the guilty plea was entered, a jury would be
chosen to hear the evidence and determine whether or not to impose
a sentence of life or death and admitted that he was never told or
informed by his attorneys that his plea of guilty would result in
a life sentence rather than death.
In response, the state presented the testimony of Dr. Robert
Rollins,

forensic

psychiatrist

competence to stand trial in 1984.

that

Simpson

was

competent

to

who

evaluated

Simpson

for

It was Dr. Rollins opinion

stand

trial,

that

he

had

an

understanding of his legal situation, and that he was able to

33

cooperate with his attorneys at the time.

with

mixed

personality

disorder

emotionally unstable features.

He diagnosed Simpson

marked

by

antisocial

and

He testified that he did not make

a diagnosis of ADHD at the time, but felt that it was a reasonable

one.

Dr. Rollins also testified that, in preparation for the MAR

hearing, he was asked to review the case and render an opinion as

to whether Simpson was also competent to enter a guilty plea in
March of 1985. Dr. Rollins testified that Simpsons ADHD would have
had some impairment of his overall function, but that based upon
his assessment it wouldnt be such to make him not competent.
J.A.

1164.

independent

He

further

recollection

testified
as

to

that,

whether

although
Simpson

he

had

no

appeared

to

understand the questions that [he] asked of him back at that time
period, he had noted in his report at the time an opinion that
Simpson was capable of understanding.

J.A. 1165.

At the conclusion of the evidentiary hearing, and after

examining the state court and MAR record, including the transcript
of the plea and plea hearing, the state MAR court found that
Simpson was competent to enter the plea of guilty, that he was not
misled

by

his

counsel,

and

that

his

plea

was

voluntarily,

intelligently, and understandingly made in compliance with Godinez.

The MAR court found unpersuasive Dr. Saunders testimony that
Simpson was not able to make a knowing decision, pointing out that
Dr. Saunders was not present when Simpson was questioned or when he

34

entered the guilty plea.

Furthermore, Dr. Saunders did not review

the transcript of the plea proceeding. She also had not questioned
Simpson about his understanding of the plea and, although her
opinion regarding his decision-making abilities was based upon the
information that was available to her and reviewed in March of
1985, she did not alert Simpsons attorneys of any such problem or
talk to counsel at the time about Simpsons decision.
The state MAR court also found that Simpsons testimony at the
evidentiary hearing demonstrated that he understood the strategy
behind pleading guilty at the time, and that he understood the
possibility that the jury might sentence him to death even if he
pled guilty.

According to the findings of the state MAR court,

Simpson

that

knew

presented

no

it

was

credible

his

decision

evidence

that

to

plead

[his

guilty,

attorneys]

and
ever

affirmatively told him he would receive a life sentence if he

entered the plea of guilty to first-degree murder of Reverend
Darter.

J.A. 1212.

The state court also found that:

Simpsons sworn representations to Judge Rousseau in open

court contradict his present allegations that he really
did not understand the consequences of his guilty pleas,
and that because of his severe mental and emotional
disorders, he was unable to make an informed, knowing,
and intelligent decision to enter the pleas.
Judge
Rousseau carefully questioned Simpson twice about the
guilty pleas, Simpsons condition at the time, the plea
arrangement, Simpsons understanding of the charges and
the consequences, Simpsons understanding that he still
faced the possibility of the jury recommending a death
sentence, Simpsons satisfaction with his attorneys, the
constitutional right to a jury trial on guilt, and

35

whether Simpson entered the pleas of his own free will,

understanding what he was doing.
J.A.

1212.

Finally,

the

court

observed

that,

despite

the

neurological, mental, and emotional disorders which affected his

decisionmaking skills, it appeared that Simpson could handle most
of the practical aspects of daily living, and was able to
communicate with people and respond appropriately to questions.
J.A. 1209.

Hence, the court concluded that Simpson had failed to

show that, despite his in-court representations, he was not able to

and did not knowingly and voluntarily enter the pleas of guilty.
The evidence on which Simpson relies is primarily Dr.
Saunders opinions and the testimony from Dr. Coleman and
Ms. Landreth concerning Simpsons limited decision-making
skills. . . . Dr. Saunders did not take into account
what was actually said or explained to Simpson before his
plea or the actual Court proceedings when he pled guilty.
Even accepting Dr. Colemans and Ms. Landreths testimony
concerning
Simpsons
limitations,
that
does
not
necessarily mean that on March 4, 1985, Simpson did not
know what he was doing. The persuasive evidence from the
people who were there is that Simpson understood what he
was doing.
J.A. 1213.
We hold that the state MAR court reasonably concluded that the
evidence failed to support an assertion that Simpson did not enter
his plea knowingly and voluntarily.

Simpsons own testimony

revealed that, although hindsight and three death sentences now

tell him that he had nothing to lose by going to trial on the
murder charge, he was aware of what he was doing when he pled
guilty to the murder of Reverend Darter, understood why he was

36

doing it and what he hoped to gain by doing it, and understood the
risks and possible outcomes of that decision.

Simpson has failed

to demonstrate, by clear and convincing evidence, that the factual

determinations made by the state MAR court on this issue are not
entitled

to

presumption

of

correctness,

2254(e)(1), that the state courts

unreasonable

in

light

of

the

see

28

U.S.C.A.

factual determinations were

evidence

presented

in

those

proceedings, or that the state courts adjudication of this claim

was

contrary

to

or

an

unreasonable

application

of

clearly

established federal law, see 28 U.S.C.A. 2254(d).

IV.
For the foregoing reasons, we affirm the district courts
denial of Simpsons petition for writ of habeas corpus.

AFFIRMED

37