John Davis McNEILL, Petitioner-Appellant, v. Marvin POLK, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee, 476 F.3d 206

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge KING and Judge GREGORY concurred in part. Judge KING wrote an opinion concurring in part and concurring in the judgment. Judge GREGORY wrote an opinion dissenting in part and concurring in part. OPINION SHEDD, Circuit Judge: John Davis McNeill appeals the district court’s dismissal of his petition for writ of habeas corpus. McNeill contends that he is entitled to habeas relief or, at a minimum, an evidentiary hearing on his claims. For the reasons set forth below, we affirm the judgment of the district court.

I On November 8, 1995, a North Carolina state jury convicted McNeill of first-degree burglary and of the first-degree murder of Donna Lipscomb. The evidence presented at trial tended to show that McNeill had been dating Lipscomb periodically prior to her death. On November 17, 1992, after McNeill and Lipscomb’s relationship encountered difficulty, McNeill went to Lipscomb’s apartment armed with a knife. After cutting the apartment’s telephone lines, McNeill forced his way into the apartment, where he began arguing with Lips-comb.

The two then began shoving each other, and McNeill stabbed Lipscomb repeatedly in the upper torso, fatally wounding her. After the subsequent sentencing phase, the jury found as an aggravating circumstance that McNeill committed the murder while engaged in the commission of burglary. The jury further found two statutory mitigating factors: (1) that McNeill committed the murder while under the influence of mental or emotional disturbance and (2) other circumstances arising from the evidence which are deemed to have mitigating value. In addition, the jury found seven non-statutory mitigating factors.

Weighing these factors, the jury unanimously recommended a sentence of death for the murder conviction, and the trial court imposed that sentence. On the first-degree burglary conviction, the trial court sentenced McNeill to life imprisonment. On direct appeal, the Supreme Court of North Carolina affirmed McNeill’s conviction, State v. McNeill, 346 N.C. 233, 485 S.E.2d 284 (1997), and the Supreme Court denied his petition for writ of certiorari, 522 U.S. 1053, 118 S.Ct. 704, 139 L.Ed.2d 647 (1998). McNeill then filed a Motion for Appropriate Relief (“MAR”) in the Cumberland County Superior Court.

After various pleadings were filed, the superior court denied McNeill’s MAR and his later motion for an evidentiary hearing. The state supreme court declined to review the MAR court’s denial of relief. State v. McNeill, 352 N.C. 154, 544 S.E.2d 237 (2000). McNeill thereafter filed a petition for writ of habeas corpus in federal court in which he presented 18 claims for review. Eventually, the district court granted Warden Marvin Polk’s (“the State”) motion for

summary judgment and dismissed the petition.

The district court, however, granted a certificate of appealability (“COA”) on the following issues: (1) whether McNeill was denied effective assistance of counsel when trial counsel admitted without McNeill’s consent that he was guilty of non-felonious breaking and entering, (2) whether McNeill was denied effective assistance of counsel when trial counsel admitted without McNeill’s consent that he was guilty of second-degree murder, and (3) whether McNeill’s due process rights were violated when the trial court permitted the jury to find him eligible for a death sentence if it concluded that the aggravating and mitigating circumstances were in equipoise.

On appeal, we expanded the COA to include three additional issues: (1) whether McNeill’s due process rights were violated when a juror consulted a dictionary to determine the meaning of the term “mitigate”; (2) whether McNeill was denied effective assistance of counsel when trial counsel failed to investigate and present certain evidence concerning McNeill’s behavior, character, and mental capacity; and (3) whether McNeill’s due process rights were violated when a juror failed to disclose that his half-sister had been murdered by an ex-boyfriend.

II We review de novo the district court’s application of the standards of 28 U.S.C. § 2254(

d) to the findings and conclusions of the MAR court. Robinson v. Polk, 438 F.3d 350, 354-55 (4th Cir.2006). Pursuant to this review, our inquiry is limited to an analysis of whether the MAR court’s adjudication of McNeill’s federal claims “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 a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(l)-(2).

The “contrary to” and “unreasonable application of’ clauses of § 2254(d)(1) have meanings which may be satisfied independently of each other. Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is contrary to clearly established federal law “if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

A state court decision is an unreasonable application of clearly established federal law “if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.” Id. Having said this, we note that a state court’s decision will not be disturbed where it is premised on an erroneous or incorrect — but not unreasonable — application of federal law. Williams, 529 U.S. at 410, 120 S.Ct. 1495. Ill A.

I begin my analysis with the State’s contention that the rules of procedural default bar our review of the merits of McNeill’s claims that Juror Sermarini improperly consulted a dictionary and that Juror Lee failed to disclose that his half-sister had been murdered. 1. The doctrine of procedural default provides that “a federal habeas court may not review constitutional claims when a state court has declined to consider their merits on the basis of an adequate and independent state procedural rule.” Burket v. Angelone, 208 F.3d 172, 183 (4th Cir.2000).

A state procedural rule is adequate if it is regularly or consistently applied by the state courts, Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), and it is independent if it does not depend on a federal constitutional ruling, Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

Where a state procedural rule is both adequate and independent, it will bar consideration of the merits of claims on habeas review unless the petitioner demonstrates cause for the default and prejudice resulting therefrom or that a failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The MAR court rejected several of McNeill’s claims, including his improper influence and biased juror claims, based on N.C.

Gen.Stat. § 15A-1420(b)(l), which provides: A motion for appropriate relief made after the entry of judgment must be supported by affidavit or other documentary evidence if based upon the existence or occurrence of facts which are not ascertainable from the records and any transcript of the ease or which are not within the knowledge of the judge who hears the motion. Specifically, the MAR court found that these claims were supported only by inadmissible evidence in the form of two affidavits which contained hearsay and one un-sworn, signed statement of a juror.

After excluding this inadmissible evidence, the MAR court determined that McNeill’s claims were not supported by the requisite evidence under the statute, and it denied relief. The question now before us is whether the MAR court’s rejection of an MAR supported by inadmissible evidence constitutes an adequate and independent state procedural rule. I conclude that it does. In Richmond v. Polk, 375 F.3d 309 (4th Cir.2004), we held that § 15A-1420(b)(

l) qualifies as an adequate and independent state procedural rule when it is employed by the state courts to deny, at the pleading stage, MAR claims which are supported by insufficient documentary evidence. There, the MAR court, relying on § 15A-1420(b)(1), summarily denied two ineffective assistance of counsel claims because they were presented with no affidavit or supporting evidence and one ineffective assistance claim because the proffered affidavit “did not actually support Richmond’s claim.” 375 F.3d at 322. On habeas review, we held that procedural default barred review of these claims. Id.

In so holding, we found that § 15A-1420(b)(l) “is an adequate state procedural rule because an unambiguous court rule such as N.C. GemStat. § 15A — 1420(b)(1) is necessarily firmly established ... and because North Carolina courts [have] regularly and consistently applied it....” 375 F.3d at 323 (internal punctuation and citations omitted). We further held that § 15A-1420(b)(1) “is an independent state procedural rule given that it does not depend on any federal constitutional ruling.” 375 F.3d at 324.

I believe that our decision in Richmond, which was based on facts nearly identical to those before us now, applies here. I see no distinction between a state court’s denial of an MAR which is supported by affidavits deemed to be unhelpful (as in Richmond) and a denial of an MAR which is supported by affidavits found to be inadmissible (as in the instant case). In both situations, the state court has, at the pleading stage, found an MAR to be insufficiently supported by affidavit or documentary evidence under § 15A-1420(b)(l). Richmond, then, would appear to foreclose our review of the merits of McNeill’s claims.

However, McNeill contends that § 15A-1420(b)(

l) is not an adequate state rule of procedure as applied in this case. As discussed earlier, a rule is adequate if the state courts have applied it in a consistent and regular manner. Johnson, 486 U.S. at 587,108 S.Ct. 1981. Therefore, for his argument to succeed, McNeill must point to “a non-negligible number of cases” in which the North Carolina courts have allowed an MAR to proceed where it was supported by inadmissible evidence. McCarver v. Lee, 221 F.3d 583, 589 (4th Cir.2000).

Nevertheless, “consistent or regular application of a state rule of procedural default does not require that the state court show an undeviating adherence to such rule admitting of no exception so long as the rule has as a general rule been applied in the vast majority of cases.” Brown v. Lee, 319 F.3d 162, 170 (4th Cir.2003). In an attempt to make this showing, McNeill cites Fullwood v. Lee, 290 F.3d 663 (4th Cir.2002); Conner v. Polk, 407 F.3d 198 (4th Cir.2005); Jones v. Cooper, 311 F.3d 306 (4th Cir.2002); Hinton v. Hinton, 196 N.C. 341, 145 S.E. 615 (1928); and State v.

Buckom, 126 N.C.App. 368, 485 S.E.2d 319 (1997). McNeill maintains that in each of these cases the courts neglected to apply the procedural bar of § 15A-1420(b)(l). However, upon close examination, these cases simply do not support McNeill’s argument. In Conner, the MAR court had stricken affidavits which contained inadmissible hearsay. Despite this ruling, on subsequent habeas review we examined the substance of these affidavits. In doing this, we expressly refused to comment on the propriety of the MAR court’s exclusion of the affidavits. 407 F.3d at 205 n. 3.

Yet Conner actually cuts against McNeill’s position because the fact that the state court struck portions of an affidavit as containing inadmissible hearsay shows a consistent rather than inconsistent application of the evidentiary rule now at issue. Likewise, in Jones, the MAR court, “relying on an unspecified state rule of evidence, quashed the affidavit and dismissed the MAR.” 311 F.3d at 309. Again, on habeas review, we implicitly accepted the affidavit and rejected the petitioner’s claims on the merits.

Nonetheless, as with Conner, we did not question whether the state court’s ruling was proper, and our review of the merits of Jones’ claims has no bearing on the consistency of the state courts’ application of § 15A-1420(b)(1). Hinton and Buckom, which McNeill cites as instances in which the North Carolina courts relied on affidavits or other evidence to establish juror misconduct, similarly fail to aid him. Neither gives any indication as to whether the affidavits contained hearsay or other inadmissable evidence.

In addition, Hinton does not involve the application of § 15A-1420(b)(l), limiting its relevance here. Further, I cannot discern whether the State ever raised the procedural bar of § 15A-1420(b)(1) in Buckom. See Meadows v. Legursky, 904 F.2d 903, 907 (4th Cir.1990) (en banc) (discounting, for purposes of adequacy inquiry, relevance of cases where it was not evident that State had advanced procedural bar). Finally, Fullwood cannot bear the import which McNeill would assign to it.

Although in Fullwood both the MAR court and this court considered the affidavit of a juror attesting to the misconduct of another juror, this affidavit was, at least in part, not based on hearsay. 290 F.3d at 676. Furthermore, it is unclear whether the State invoked the procedural bar of § 15A-1420(b)(l), see Meadows, 904 F.2d at 907, and our opinion gives the impression that it did not. Instead, it appears that the evidentiary question in Fullwood was the extent to which a juror’s affidavit could be used to impeach a verdict. 290 F.3d at 679-80.

In any event, even if the state court did decide not to apply § 15A-1420(b)(1) in Fullwood, this one instance does not suffice to satisfy McNeill’s burden of showing a non-negligible number of cases in which the procedural rule was not enforced. Brown, 319 F.3d at 170. In Richmond, we found § 15A-1420(b)(1) to be an adequate and independent state rule of procedure, and McNeill fails to show that the state courts have applied this rule inconsistently with regard to inadmissible evidence.

Therefore, I conclude that § 15A-1420(b)(l), when used to deny an MAR which is unsupported by admissible affidavits or other evidence, is an adequate and independent state procedural rule which bars consideration of the merits of a petitioner’s claims on federal habeas review. Having reached this conclusion, I turn to the question of whether McNeill has made a showing of cause and prejudice sufficient to overcome his procedural default. 2. To establish cause, McNeill must “show that some objective factor external to the defense impeded counsel’s efforts to comply with” § 15A-1420(b)(l). Richmond, 375 F.3d at 324.

Examples of these external factors are situations where the factual or legal basis for a claim is not reasonably available to counsel or where some interference by officials makes compliance with the procedural rule impracticable. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). In an apparent attempt to argue cause, McNeill asserts that he had no way of presenting a claim of juror misconduct without a means of compelling a juror to testify by way of deposition or subpoena at an evidentiary hearing and that neither of these means was available in state court.

In addition, McNeill maintains that it is unreasonable to expect him to obtain an affidavit from the very juror accused of misconduct in order to receive an evidentiary hearing or a ruling on the merits of his claim. I find these arguments to be unpersuasive for two reasons. First, as the State notes, McNeill had the ability to seek a deposition or other discovery at the time he filed his MAR, thus providing him with a way of presenting evidence in support of his MAR. See State v. Buckner, 351 N.C. 401, 527 S.E.2d 307 (2000) (holding that a party has the right to seek discovery upon filing of an MAR).

Second, McNeill’s contention that it is unreasonable to require him to obtain admissible evidence from the particular juror accused of misconduct is unconvincing. Based on North Carolina’s rule permitting the introduction of juror testimony regarding the existence of an outside influence upon the jury, McNeill could have supported his MAR with an affidavit from any member of the jury. Moreover, McNeill obtained an unsworn statement from Juror Sermarini, the very juror accused of engaging in misconduct by consulting a dictionary.

It is not unreasonable to require that McNeill go one step further and obtain admissible evidence from Sermarini. Given this and given the availability of discovery, it is also not unreasonable to expect McNeill to obtain admissible evidence from Juror Lee, who is accused of bias for failing to reveal that his half-sister was murdered by an ex-boyfriend. For these reasons, McNeill has failed to show cause sufficient to overcome his procedural default. Due to McNeill’s procedural default, I do not reach the merits of his claims of an improper influence upon the jury and of a biased juror.

Accordingly, I would affirm the district court’s dismissal of these claims on the basis of procedural default. B. We now address McNeill’s claims that he was denied his right to effective assistance of counsel. As noted earlier, McNeill contends that his trial counsel failed to gather and present evidence of his good character and of his impaired mental capacity and conceded, without permission, that he was guilty of second-degree murder and of non-felonious breaking and entering. 1. To succeed on an ineffective assistance of counsel claim, a petitioner must satisfy the familiar standard of Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, two prongs must be met: (1) the petitioner must show that his counsel’s performance “fell below an objective standard of reasonableness,” and (2) the petitioner must show that there “is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 688, 694, 104 S.Ct. 2052.

In this case, the MAR court considered and denied McNeill’s ineffective assistance of counsel claims on the merits, finding that trial counsel’s representation was not objectively unreasonable. Accordingly, the deferential standard mandated by § 2254(

d) applies. 2. McNeill first contends that his trial counsel was ineffective in that he failed to conduct a sufficient investigation and to present evidence of McNeill’s good character and of impaired mental capacity.

In support of this claim, McNeill alleges three specific instances in which trial counsel was ineffective: (1) counsel failed to investigate, develop, and present sufficient mitigation evidence by ineptly investigating and examining witnesses concerning McNeill’s background and mental capacity; (2) counsel presented materially false and inaccurate information suggesting McNeill adapted poorly to incarceration; and (3) counsel failed to present expert testimony concerning McNeill’s impaired mental capacity. On each claim, we find the decision of the MAR court to be correct. a.

McNeill contends that trial counsel failed to investigate, develop, and present sufficient mitigation evidence by ignoring or neglecting to find five character witnesses who knew McNeill during junior high school. However, the trial transcript indicates that trial counsel did present evidence from character witnesses who knew McNeill as an adult and who could testify to his character at the time of the murder and at the time of trial and sentencing.

Specifically, Garris Faison, McNeill’s supervisor, testified as to McNeill’s work ethic and as to his responsibility as an electrician, and William Harvey Thornton, Jr., McNeill’s neighbor, testified that he observed McNeill’s loving relationship with the victim and her children. Further, Mark Hutchens, McNeill’s probation officer for a prior drug offense, testified that McNeill had successfully completed his probation, paid all fines due, and completed community service. Hutchens also told the jury that he would rate McNeill very highly in terms of his performance as a probationer.

Finally, Anne Campbell, McNeill’s former jailor, testified that McNeill was an exemplary inmate, “every detention officer’s dream,” and a “blessing.” J.A. 772, 783. She further stated that McNeill would lead other inmates in Bible studies and prayers. This evidence was certainly more probative of McNeill’s character than evidence which would have been elicited from witnesses who knew him in the more distant past.

In addition, the record indicates that trial counsel, when confronted with overwhelming evidence tending to establish that McNeill was guilty of a particularly heinous murder, chose to pursue a strategy of arguing that McNeill lacked the mens rea requisite for premeditation. Pursuant to this strategy, counsel retained a psychologist, John Warren, and presented exhaustive mental health testimony designed both to rebut mens rea at the guilt phase and to establish a basis for mitigation at the sentencing phase.

This strategic choice was borne out in the presentation of evidence which indicated that McNeill did not view a knife as a lethal weapon and that he did not understand Lips-comb’s communication that she did not want to talk to him. Further testimony of Warren — who testified at both the guilt and sentencing phases — demonstrated that McNeill had a history of alcohol abuse in his family, had been a witness to frequent fights with weapons, and had seen seven or eight people shot or stabbed. This evidence brought out the details of McNeill’s background and childhood which he now claims were lacking.

Warren also testified as to the effects on McNeill of the history of substance abuse, criminal behavior, and violence in his family and indicated that these effects would include aggression, impulsivity, low self-esteem, dependency, depression, and substance abuse. Finally, Warren stated that McNeill was in an intoxicated, emotionally aroused state when he entered the victim’s apartment, and that this augured against any premeditation to kill.

In the face of the investigation conducted by trial counsel and the evidence presented at trial, the MAR court’s finding that counsel’s investigation and presentation of mitigation evidence and character witnesses did not fall below an objective standard of reasonableness was not contrary to or an unreasonable application of clearly established federal law. b. McNeill next claims that counsel was ineffective in presenting evidence of an infraction he committed while in prison, evidence which McNeill contends was materially false and misleading.

The evidence of the prison infraction was presented in the context of Warren’s testimony regarding McNeill’s adaptation to prison life and exemplary behavior in prison. In testifying as to the infraction, Warren was reading from prison records, and he noted that McNeill had no infractions except that he “failed to report to work” and, as a result, was given “forty-eight hours of administrative segregation.” J.A. 795. Warren further noted that the infraction was “very, very minor” in the context of McNeill’s overall positive adjustment to prison life. J.A. 797.

McNeill contends that he told trial counsel that the infraction report was an error and that he did not commit the infraction, yet counsel allowed the infraction to be presented to the jury anyway. The MAR court’s denial of this claim of ineffective assistance of counsel was not unreasonable. First, McNeill presented no admissible evidence in support of his position that he did not commit the infraction. Second, the infraction was presented in the context of overwhelmingly positive testimony regarding McNeill’s time in prison.

Third, the trial judge gave a peremptory instruction that “all of the evidence tends to show that the defendant made a good adjustment to prison while awaiting trial.” J.A. 920. In these circumstances, trial counsel’s presentation of evidence of the infraction was not objectively unreasonable. c. Next, McNeill asserts that counsel was deficient in failing to present expert testimony regarding his diminished capacity. However, the record indicates that McNeill presented abundant evidence of his diminished mental capacity in his casein-chief during the guilt phase of his trial.

We find without merit McNeill’s contention that counsel was ineffective by not presenting this evidence again at the sentencing phase, especially as the trial court instructed the jury that it could consider, during the sentencing phase, all evidence presented during the guilt phase. See N.C. Gen.Stat. § 15A-2000(a)(3). Accordingly, the MAR court’s rejection of this claim on the merits was not contrary to or an unreasonable application of clearly established federal law. 3.

We next consider McNeill’s argument that counsel was ineffective by admitting, without McNeill’s consent, that he was guilty of second-degree murder and non-felonious breaking and entering. Under Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), trial counsel’s performance cannot be constitutionally deficient based solely on his failure to seek McNeill’s consent before admitting guilt to the jury. Instead, McNeill must show that counsel’s decision to admit guilt was objectively unreasonable under the Strickland standard. Id. at 192, 125 S.Ct. 551.

The MAR court rejected these claims on the merits. McNeill’s contention that counsel was deficient in admitting that he committed second-degree murder is meritless. The record indicates that McNeill, after a hearing, stipulated to the commission of second-degree murder. At this hearing, McNeill indicated that he understood that the stipulation gave trial counsel the right to argue to the jury that he was guilty of second-degree murder. This argument was consistent with counsel’s strategy of contending that McNeill lacked the mens rea to commit premeditated murder.

Further, McNeill’s testimony during trial that he “did not intend to hurt” Lipscomb cannot stand for the proposition that he did not intend to admit he committed second-degree murder, as he now maintains. In light of the evidence showing that McNeill, armed with a knife, cut Lipscomb’s telephone line, forced his way into her apartment, and stabbed her to death, McNeill’s statement goes to his premeditation to murder rather than a refusal to admit guilt to second-degree murder.

The statement also supports trial counsel’s guilt phase strategy of arguing that McNeill had a diminished mental capacity due to his emotional state and, therefore, was incapable of committing premeditated murder. It was in this context that McNeill’s statement was offered, and in this context McNeill’s statement was not contrary to counsel’s defense strategy of showing diminished capacity and lack of intent. Given the factual evidence presented at McNeill’s trial, counsel’s strategic choice to admit guilt to second-degree murder while arguing that pre-meditation was lacking was not objectively unreasonable.

Finally, McNeill’s assertion that counsel erred in admitting he was guilty of non-felonious breaking and entering likewise fails. McNeill’s stipulation and his testimony at trial admitted the facts constituting the elements of non-felonious breaking and entering, and an admission to this offense links to an admission to second-degree murder in that both show an absence of prior intent. Again, trial counsel’s strategy of arguing that McNeill lacked the capacity to commit pre-meditat-ed murder dictated an admission of non-felonious breaking and entering as well as an admission of second-degree murder.

McNeill has failed to rebut the state court’s factual determination that admission to non-felonious breaking and entering was part of counsel’s trial strategy. He has similarly failed to show that this strategy was objectively unreasonable. Accordingly, his claim for relief must be rejected. IV Based on the foregoing, we affirm the district court’s dismissal of McNeill’s petition for writ of habeas corpus. AFFIRMED. .

At oral argument, McNeill abandoned his claim that the jury instructions were constitutionally flawed because they permitted the imposition of a death sentence where the aggravating and mitigating circumstances are in equipoise. See Kansas v. Marsh, - U.S. -, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006) (holding that state statute which permits imposition of a death sentence when jury determines that aggravating and mitigating circumstances are in equipoise does not violate Eighth Amendment). Accordingly, we do not consider this claim further. .

Because Judge King and Judge Gregory do not agree with my conclusion that McNeill’s juror misconduct claims are procedurally defaulted, I write only for myself in

part III A of this opinion. . To the extent that McNeill maintains that the state court erred when it interpreted § 15A — 1420(b)(1) as requiring that an MAR be accompanied by admissible affidavits, I decline to question the MAR court's view of the statute’s meaning. See Barnes v. Thompson, 58 F.3d 971, 974 n. 2 (4th Cir.1995) (noting that a federal habeas court "does not have license to question a state court's finding of procedural default,” nor to question "whether the state court properly applied its own law”). .

The MAR court's alternative ruling that McNeill's claims fail on the merits does not preclude consideration of procedural default here. Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). .Our holding in Richmond also proves fatal for McNeill's assertion that the MAR court acted improperly in ruling on the admissibility of evidence at the pleading stage.

In Richmond, the state court denied Richmond's MAR on the pleadings based on its conclusion that one of the affidavits proffered by Richmond did not support his position, and we subsequently held the claim to be procedurally defaulted. 375 F.3d at 320, 328-29. In so holding, we found no fault in the MAR court’s resolution of evidentiary issues at the pleading stage. . McNeill is incorrect in his contention that this case is controlled by Robinson and Conaway v. Polk, 453 F.3d 567 (4th Cir.2006).

Robinson did not address procedural default, and in Conaway the MAR court had not relied on a state procedural rule as a basis for denying relief. . As noted earlier, a habeas petitioner can also escape procedural default by demonstrating a fundamental miscarriage of justice. To do so in the context of a death sentence, he must prove by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found him eligible for the death penalty under the applicable state law. Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

McNeill does not argue that he meets this standard. . As McNeill has failed to show cause, I do not engage in an analysis of prejudice. . The record indicates that the MAR court denied McNeill’s ineffective assistance of counsel claims both on procedural grounds and on the merits. While it appears that the State argued before the district court that consideration of these claims was barred by procedural default, the State makes no such argument here. Thus, we reach the merits of these claims. Wilson v. Ozmint, 352 F.3d 847, 868 (4th Cir.2003) (stating that procedural default can be waived).