PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
ERNEST WEST BASDEN,
Petitioner-Appellant,
v.
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee.

No. 01-24

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(CA-97-462-5-F-HC)
Argued: January 22, 2002
Decided: May 3, 2002
Before WILKINSON, Chief Judge, and MOTZ and
GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in

which Chief Judge Wilkinson and Judge Gregory joined.

COUNSEL
ARGUED: J. Matthew Martin, MARTIN & MARTIN, P.A., Hillsborough, North Carolina; John Dalton Loftin, LOFTIN & LOFTIN,
P.A., Hillsborough, North Carolina, for Appellant. Edwin William
Welch, Special Deputy Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-

BASDEN v. LEE

lee. ON BRIEF: Roy Cooper, North Carolina Attorney General,

Barry S. McNeill, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.

OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A jury convicted Ernest Basden of the first-degree murder of, and
conspiracy to murder, Billy White, and recommended that he be sentenced to death. Basden challenged his convictions and resulting
death sentence in state court, unsuccessfully pursuing direct and postconviction relief. Basden then filed this petition in the district court
for a writ of habeas corpus, see 28 U.S.C.A. 2244 (West Supp.
2001), maintaining that at his trial the State withheld exculpatory evidence and knowingly presented perjured testimony, that his counsel
provided ineffective assistance, and that the indictment under which
he was convicted was constitutionally defective. He now appeals the
district courts summary judgment denial of all habeas relief. We
affirm.
I.
The Supreme Court of North Carolina on direct appeal described
the facts surrounding Whites murder as follows:
The States evidence tended to show Sylvia White wanted
to kill her husband, Billy White, for at least a year. She
unsuccessfully tried to poison him with wild berries and poisonous plants. She also enlisted the help of Linwood Taylor,
defendants nephew. Taylor then approached defendant and
told him he needed a hit man and asked defendant if he
wanted the job. Defendant initially thought the idea was
crazy and refused. Later, when defendant got into financial
difficulty he asked Taylor if the offer still stood and agreed
to kill White.

BASDEN v. LEE

Taylor developed a scheme to lure White, who was an insurance salesman, to a location where he could be killed. Taylor pretended to be a wealthy businessman from out of town
who had bought property in Jones County and wanted to
buy insurance. Taylor arranged for White to meet him in a
wooded rural area at 8:30 p.m. Sunday, 20 January 1992. On
the day of the murder, Taylor and defendant drove to the
designated spot and waited for White.
When White arrived, Taylor got out of his car and introduced himself to White as Tim Conners. Then Taylor said
he needed to use the bathroom and stepped to the other side
of the road. Defendant got out of the car and picked up a
twelve-gauge shotgun he had placed on the ground beside
the drivers side of the car. Defendant pointed the gun at
White and pulled the trigger. The shotgun did not fire
because defendant had not cocked the hammer back. Defendant then cocked the hammer and fired. White was knocked
to the ground. Defendant removed the spent shell casing and
loaded another shell into the shotgun. Defendant then
approached White, who was lying faceup on the ground, and
while standing over White, shot him again. At trial the
pathologist testified that White bled to death from massive
shotgun wounds to the right upper chest and left lower abdomen. Although his aorta was nearly severed from his heart,
White did not die instantly but would have remained conscious for some period of time and would have felt pain.
Defendant and Taylor drove back to Taylors house after the
shooting. Taylor said he thought he left a map at the crime
scene so they returned and went through Whites pockets
taking a blank check, wallet, and gold ring. They then
returned to Taylors house and burned all their clothing in
the backyard. They also sawed the shotgun into three or four
pieces with a hacksaw, put the pieces into a bucket of
cement, and threw it over a bridge into the Neuse River.
Taylor gave defendant three hundred dollars.
Prior to defendants arrest, police officers retrieved two
metal base portions of spent shotgun shells which were

BASDEN v. LEE

found in ashes from the fire in Taylors backyard. Forensic

examination indicated they were consistent with twelvegauge shotgun shells and could have been fired from the
same weapon. Officers also went to defendants repair shop
in Kinston and retrieved a mans gold-tone ring with three
diamond settings from defendant, who had it in his pocket.
Taylor and Sylvia White were arrested for murder on 12
February 1992. Defendant went to the Jones County Sheriffs Department where Taylor told defendant that he had
confessed. Taylor advised defendant to turn himself in and
talk to SBI Agent Eric Smith. Defendant was interviewed by
Agent Smith and Detective Simms of the Lenoir County
Sheriffs Department. After giving some preliminary background information, defendant told the officers that he shot
White. The officers immediately read defendant his
Miranda rights and defendant signed a written waiver of his
rights. Defendant then gave a detailed confession and stated
that he killed White because he needed the money.
Defendant presented evidence that he suffered from depression, arthritis, kidney problems, pancreatitis, and drug and
alcohol abuse. He is the youngest of ten children [and thus
actually a few months younger than Taylor, his much older
sisters son]. He was extremely close to his mother, who
was killed in a car accident when he was fourteen years old,
and he never really recovered from her death. Defendant had
been married once for about five years and was a good
father to his stepchildren. Defendant was considered by
friends and family to be a loner.
Dr. J. Don Everhart, a clinical psychologist, testified that
defendant has a dependent personality disorder; he is lacking in self-confidence and clings to stronger people, performing unpleasant tasks for them to retain their support.
Dr. Everhart further testified that defendant has an avoidance personality disorder; he is shy and uncomfortable in
social settings and is easily isolated. Finally, defendant has
a schizotypal personality disorder, with feelings of being
disembodied and disassociated from life events.

BASDEN v. LEE

State v. Basden, 451 S.E.2d 238, 241-42 (N.C. 1994).

The State tried Basden for capital murder, and the jury convicted
him, less than fourteen months after he shot and killed Billy White.
At Basdens trial, the State established the details of the crime that are
outlined above, through the testimony of police officers and cross
examination of Basden himself. Two officers testified to the contents
of several detailed confessions, from both Basden and his coconspirator, Taylor. Moreover, Basden himself took the stand and
admitted in cross examination that he was "the one who actually shot
Mr. White," that he agreed to do it the Friday before the Monday murder, and that he "did it for the money."
The jury deliberated for an hour and fifteen minutes before convicting Basden, and for nearly nine hours before issuing its sentencing
recommendation. The jury found one statutory aggravating factor
the crime was committed for pecuniary gain and two statutory mitigating factors Basden was dominated by Taylor and under the
influence of a mental or emotional disturbance. The jury also found
five nonstatutory mitigating factors repentance and remorse, willing assumption of responsibility, religious belief and practice while
incarcerated, stress at the time of the crime, confession and cooperation with law enforcement at an early stage of the investigation, and
character and prior conduct inconsistent with the crime. In accord
with the jurys recommendation, the judge sentenced Basden to death.
Basden appealed his convictions and sentence to the Supreme
Court of North Carolina and after that court affirmed the verdict and
sentence, the Supreme Court of the United States denied certiorari.
See State v. Basden, 451 S.E.2d 238, cert. denied, 515 U.S. 1152
(1995). Then Basden filed a motion for appropriate relief, which the
state postconviction court denied in January 1996. After involved
state court proceedings, Basden finally won postconviction discovery
in 1999. See State v. Basden, 515 S.E.2d 220 (N.C. 1999); State v.
Basden, 501 S.E.2d 920 (N.C. 1998). This discovery provided Basden
with a number of documents, including police reports of additional
statements from Taylor and a statement of one Tim Jones, describing
facts concerning Billy Whites death and the plan to kill him. On the
basis of these documents, Basden filed an amended motion for appropriate relief; the state postconviction court again rejected it, and the

BASDEN v. LEE

Supreme Court of North Carolina and Supreme Court of the United

States denied review. See Basden v. North Carolina, 531 U.S. 982
(2000); State v. Basden, 544 S.E.2d 549 (N.C. 2000); State v. Basden,
544 S.E.2d 228 (N.C. 2000).
Basden then filed this petition for a writ of habeas corpus in federal
court. The district court rejected a number of Basdens claims as procedurally defaulted, found the remaining claims meritless, and refused
to grant Basden an evidentiary hearing. Basden appeals.
We conduct de novo review of a "district courts decision on a petition for writ of habeas corpus based on a state court record." See
Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 555 (4th Cir. 1999).
Applying the same standard as the district court, we can order issuance of the writ only if the state courts adjudication of a claim "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
evidence presented in the State court proceeding." 28 U.S.C.A.
2254(d) (West 2001).
II.
Basden raises two arguments grounded in Brady v. Maryland, 373
U.S. 83 (1963), which holds that a State violates a defendants due
process rights when it fails to disclose to the defendant prior to trial
"evidence favorable to an accused . . . where the evidence is material." Id. at 87; see also United States v. Agurs, 427 U.S. 97 (1976).
Under Brady, "evidence favorable to the accused" includes impeachment as well as exculpatory evidence; the suppression of such evidence is material and so violates due process "if there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different." Strickler v.
Greene, 527 U.S. 263, 280 (1999) (internal quotation marks and citation omitted).
Basden bases his Brady claims on documents he received through
postconviction discovery in 1999, years after his conviction, sentence,
and direct appeal. Ten documents fall into this category: (1) drawings

BASDEN v. LEE

of the crime scene; (2) a report of Jimmy Britt dated February 6,

1992; (3) a report of Deputy Jernigan dated February 6, 1992; (4) a
statement by Timothy Jones; (5) a report of surveillance activities
involving Jones; (6) a "snitch" file containing a long list of extensive
informant contacts between the police and Basdens co-conspirator
Taylor, from September 19, 1991, through December 29, 1991; (7) a
polygraph document and statement from Taylor dated February 12,
1992; and statements Taylor gave to police officers dated (8) June 10,
1992, (9) June 26, 1992, and (10) June 30, 1992. Basden makes no
argument with respect to the first three documents; rather, he bases
his Brady claims on the Taylor and Jones documents.
The undisclosed Taylor statements repeat much of the information
contained in two other Taylor confessions that the prosecution did
provide to Basdens counsel on the first morning of Basdens trial. In
the suppressed statements, however, Taylor recounts additional
details of his plot with Sylvia White and, in one of the nondisclosed
statements, acknowledges that he lied to police about some facts in
another of the nondisclosed statements. The Taylor "snitch" file
reflects Taylors extensive work for the police as a confidential informant in the months immediately prior to the murder of Billy White.
The Jones documents reveal that Jones was a police informant,
who on February 10, 1992 (three weeks after the murder, but prior to
the Taylor or Basden confessions), told police that six months earlier
Taylor had solicited him to kill Billy White and shown him a photo
of the intended victim; and that shortly after White was murdered
Taylor confessed to Jones, without mentioning Basden, that he had
killed White for $20,000 and a van, and detailed the entire story of
luring White to his murder. (Once defense counsel received these
documents, they located Jones, who further attested that Taylor had
dominated Basden and that Basden was not himself at the time of
Whites murder in January 1992.)
The state postconviction court implicitly assumed that all of these
documents were favorable to Basden either as exculpatory evidence or for impeachment purposes and explicitly assumed that the
State had suppressed the documents. Nevertheless, the postconviction
court rejected Basdens Brady claims, reasoning that the suppression
of these documents was not "material" because Basden "has not

BASDEN v. LEE

shown that there is a reasonable probability that either his conviction

or sentence would have been different had the suppressed material
been disclosed." The court relied on Basdens full pretrial confession,
his full confession at trial, the testimony of police officers at his trial
as to the voluntariness of Basdens pretrial confession, and the contents of the two Taylor confessions that Basden received the first day
of trial. Basden argues that the state postconviction courts decision
is an unreasonable application of Brady and its progeny, which constitute "clearly established Federal law, as determined by the Supreme
Court," under 28 U.S.C.A. 2254(d). Specifically, Basden maintains
that, if the State had timely disclosed the Taylor and Jones documents, he would not have been convicted of first-degree murder, or,
if convicted, would have been sentenced differently.
A.
Basdens Brady challenge to his conviction cannot succeed because
the State presented overwhelming evidence of his guilt. Basden contends that if he had timely received the nondisclosed Taylor and Jones
documents, he would never have taken the stand at his trial and confessed to the murder. Even assuming that this is so, given the States
other evidence, the documents on which Basden relies do not render
clearly unreasonable the state postconviction courts confidence in his
conviction.
We must reach this conclusion because none of the nondisclosed
documents in any way affect the admissibility of Basdens detailed
pretrial confession. It is undisputed that prior to his arrest Basden voluntarily sought out the police officers in order to confess to them.
Although Basden states in a postconviction affidavit that he "had
smoked marijuana in the morning," both police officers testified that
Basden did not appear to be under the influence when he confessed,
and even Basden does not say that the marijuana affected his judgment that day. Accordingly, the state postconviction court was not
unreasonable in concluding that a motion to suppress the pretrial confession would have failed. See Boggs v. Bair, 892 F.2d 1193, 1198-99
(4th Cir. 1989) (discussing the level of intoxication necessary to render a confession involuntary).
We recognize that Basden need not show that the State offered
insufficient evidence to convict him without the suppressed evidence.

BASDEN v. LEE

See Kyles v. Whitley, 514 U.S. 419, 437 (1995). But even putting
aside Basdens confession at trial, when we consider his full pretrial
confession, its consistency with the two Taylor confessions that the
State disclosed to Basden, and the physical evidence confirming it,
such as Basdens possession of Billy Whites ring, we cannot conclude that the state postconviction courts ruling was unreasonable.
B.
Basdens Brady challenge to his sentence raises more difficult
questions. Before turning to the merits of this challenge, however, we
must address a Teague v. Lane, 489 U.S. 288 (1989), argument
advanced by the State.1
1.
The State contends that application of Brady to Basdens sentencing would constitute a "new rule" under Teague, and for this reason,
in the context of sentencing, Brady is not "clearly established Federal
law" for purposes of 28 U.S.C. 2254(d). See Williams v. Taylor, 529
U.S. 362, 412 (2000). The clear language of Brady and its progeny
renders this argument meritless.
In Brady itself, the Supreme Court expressly stated that its holding
applied not only to suppression of materials at the guilt phase of a
1

The State also preliminarily contends that Basden "waived" or did not
preserve his appellate argument that Brady violations entitle him to a
new sentence, because he failed to "focus[ ]" on this argument "[i]n the
lower courts." The contention is meritless. Before the state postconviction court and in the district court Basden did indeed focus on his Brady
challenge to his conviction, but in both courts he also clearly preserved
his Brady challenge to his sentence. He moved for appropriate relief in
state postconviction court seeking a "new sentencing hearing" and arguing that the suppressed documents "taken together . . . undermine confidence in the outcome of the case" and create a "reasonable probability
that a different result would have been reached," and argued in his federal habeas petition that the state postconviction court "completely
missed the impact of this evidence [the suppressed Brady documents] at
the sentencing phase," requesting, inter alia, "a new sentencing hearing."

10

BASDEN v. LEE

trial, but also at the punishment phase: "We now hold that the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to
guilt or to punishment. . . ." 373 U.S. at 87 (emphasis added); see also
United States v. Bagley, 473 U.S. 667, 674-75 (1985) (describing
Brady); Spicer, 194 F.3d at 553 n.1 (stating that in Brady "the
Supreme Court held that a state denies a defendant due process by
failing to disclose to the defendant before trial evidence favorable to
the defendant that is material either to guilt or to punishment")
(emphasis added).
Moreover, in Strickler v. Greene, the Supreme Court considered
the effect of Brady materials on punishment on a sentence. Strickler, 527 U.S. at 263, 291, 294, 295; see also id. at 307 (Souter, J., dissenting); id. at 280, citing Strickler v. Pruett, No. 97-29, 1998 WL
340420 at *10 (4th Cir. June 17, 1998) (unpublished disposition)
(considering a Brady claim directed to a sentence). Of course, because
the Supreme Court issued its opinion in Strickler after Basdens conviction had become final, see Teague, 489 U.S. at 295 (noting that the
date of finality is the date of exhaustion of direct appeal), if Stricklers application of Brady to a sentence had announced a new rule for
Teague purposes, that rule would not constitute "clearly established
Federal law" under 2254(d). See Williams, 529 U.S. at 412. But in
Strickler, the Supreme Court expressly stated that in applying Brady
to sentencing, it was not announcing a new rule. Rather, the Court
explained, "[b]ecause our opinion [in Strickler] does not modify
Brady," it does not "announce a new rule." Strickler, 527 U.S. at
289 n.35. Consistent with this express statement, the Strickler Court
in 1999 applied the Brady rule to Stricklers sentencing claim, which
would have been contrary to Teague if Strickler had announced a new
rule.
In sum, the Supreme Court, in first enunciating the Brady rule in
1963, declared that the rule applied to "favorable evidence," which is
"material to guilt or to punishment." Brady, 373 U.S. at 87. Moreover,
when in Strickler the Supreme Court itself applied the Brady rule to
determine if nondisclosed documents were material to punishment
if they affected a sentence the Court expressly stated that this
application of Brady did not constitute a "new rule." Strickler, 527
U.S. at 289 n.35; see also Mincey v. Head, 206 F.3d 1106, 1139-40

BASDEN v. LEE

11

(11th Cir. 2000) (considering an asserted Brady violation with respect

to sentencing in a case final for Teague purposes before Strickler was
announced); Jackson v. Johnson, 194 F.3d 641, 648-50 (5th Cir.
1999) (same).
We, therefore, consider Basdens Brady claim with respect to his
sentence, examining the cumulative effect of the withheld documents,
"collectively, not item by item." See Kyles, 514 U.S. at 436.
2.
Basden argues that with the suppressed documents,2 he could have
presented the jury at sentencing with "a powerful argument regarding
the lesser culpability of Ernest Basden, with Sylvia White as the most
culpable, Lynwood as her Lieutenant, and [Basden] as the mentally
ill, clinically depressed, intoxicated, manipulated, rube." The state
postconviction court rejected this claim, like Basdens Brady attack
on his conviction, on the ground that Basden had not "shown that
there [was] a reasonable probability" that the result "would have been
different had the suppressed materials been disclosed." Basdens
Brady sentencing contention presents a much closer question than his
conviction claim, but ultimately we cannot hold, given clearly established federal law, that the state postconviction court was unreasonable in rejecting it.
At least one of the jurors, by finding that Basden was dominated
by Taylor and affected by alcohol and drugs at the time of the killing,
accepted a portion of the defense Basden describes accepted, in
sum, that he was an "intoxicated, manipulated, rube." Basden argues
that the suppressed documents would have permitted him to fill in the
other side of the picture: the leading roles and greater culpability of
Sylvia White and Taylor.
2

We note that Brady evidence need not tend to impeach a person who
testified at trial or sentencing. See, e.g., Kyles, 514 U.S. 419 (reversing
two lower courts refusal to grant the writ on the basis of exculpatory
evidence including police reports that tended to impeach and incriminate
a witness who never testified).

12

BASDEN v. LEE

The suppressed documents do paint a picture that a jury could find

supports such a theory.3 With respect to Sylvia White, these documents show that she was obsessed with the desire to kill her husband
for more than a year. Her plotting involved much more than the specific details her requests that Taylor look for poison and find a hit
man of which the jury heard. White used various strategies to
encourage Taylor to take on the murder, once threatening to commit
suicide, and another time explaining "[i]t aint that hard," and boasting that she had already smothered a child without much difficulty.
White supplied Taylor with a map to the murder site, strongly suggesting that she had a significant role in selecting it. She provided him
with pictures of her husband to assist in the identification. She even
gave Taylor a diamond necklace, to be pawned so that he could buy
a gun. See also White, 457 S.E.2d at 846.
The suppressed documents also show that Taylor whose role the
State sought to minimize at Basdens sentencing entered into the
murder plot with similar energy. He thought up ideas for Sylvia, suggesting that she "make it look like suicide" (which she rejected
because she had already had one husband who committed suicide and
another "would be too suspicious"). Taylor continually met and plotted with Sylvia White despite his purported reluctance to kill her husband. Most importantly, the suppressed documents would have shown
that Taylors determination to kill Billy White led him not only to
attempt to enlist Basden several times but also to try to hire at least
one other hit man. The documents reveal that after Basden initially
3

Moreover, notwithstanding (or indeed perhaps because of) the greater

cunning of Taylor and Sylvia White, they have been treated much more
leniently than Basden. The State did not bring Taylor to trial until four
years after Billy Whites murder, and then permitted Taylor to plead
guilty to first-degree murder; he received a sentence of life imprisonment. Similarly, the State did not seek to try Sylvia White for almost four
years after the murder of her husband and then allowed her to plead
guilty to conspiracy to commit murder and second-degree murder; she
too received a sentence of life imprisonment. Prior to that conviction, the
State tried and convicted Sylvia White for the 1973 unrelated murder of
her stepson (Billy Whites son and namesake) whom she suffocated with
a plastic bag when he was four years old; the State did not seek the death
penalty for that murder and White received a life sentence for that crime
too. See State v. White, 457 S.E.2d 841 (N.C. 1995).

BASDEN v. LEE

13

rejected Taylors murder for hire scheme, Taylor actually tried to hire
Tim Jones instead to murder White, going so far as to give Jones a
photograph of Billy White.
To grant a writ of habeas corpus, however, we would have to conclude that the state postconviction courts conclusion that Basden
has not shown a reasonable probability that these materials would
have yielded a different sentence was an unreasonable application
of the test for materiality under Brady. The problem with such a conclusion is that Basden had access to almost all of the information contained in the suppressed documents.4
We acknowledge that this is not uniformly the case. Rather, some
information in the suppressed documents was not otherwise available
to Basdens counsel. Although the two disclosed Taylor confessions
reveal that Taylor "told Tim Jones everything," they say nothing more
about Tim Jones. Thus, it is hard to see how defense counsel could
have learned of Joness status as an informant, or that Taylor had
attempted to hire Jones to kill Billy White. Similarly, although a
police officer testified before the jury that Taylor was a police informant, none of the disclosed documents reveal Taylors near daily contacts with the police in the months immediately preceding the murder,
so Basden had little opportunity to use the materials to highlight Taylors relatively greater sophistication.
But the two disclosed Taylor confessions otherwise provide a relatively full picture of the involvement of Taylor and Sylvia White in
the plot to kill Billy White. Basden, therefore, had available for his
use in his defense to make the case that he was the far less culpable "dupe" of the plotting masterminds, Taylor and Sylvia White
4

It is troubling that the State did not provide Basden with any of the
Taylor confessions until the first morning of the Basdens trial, since the
timing of a disclosure ordinarily affects the defenses ability to use it
effectively. See Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) (noting that "the closer to trial the disclosure is made, the less opportunity
there is for use"). In reviewing Basdens arguments on prejudice, we
have considered the timing of the provision of Taylors two statements.
Even so, we cannot conclude that in this case the state postconviction
courts holding constitutes an unreasonable application of Brady.

14

BASDEN v. LEE

everything in these two confessions. The jury heard that Sylvia White
originated the murder plot and, generally, that she persisted in urging
Taylor to assist her for over a year. The jury heard of the many contacts between Taylor and Sylvia White and his regard for her. The
jury heard that Sylvia White, with Taylors help, attempted to kill her
husband with two kinds of poison, before turning to the shooting plot.
The jury heard that both Taylor and Sylvia White at various times
claimed credit for developing the murder plan Taylor posing as an
insurance agent to lure Billy White to the murder site. The disclosed
Taylor confessions further revealed that Sylvia White "worried [Taylor] for over a year about killing her husband," told Taylor that her
first husband committed suicide, provided Taylor with a photograph
of White, scouted the site of the murder with Taylor, and egged him
on to do the killing by telling him that it was "easy," explaining that
she had killed her stepchild. Even the prosecutor, who naturally
enough minimized the roles of Sylvia White and Taylor, had to
acknowledge that "the fact that his wife wanted him dead" was part
of the reason why Billy White died.
In sum, Basdens counsel knew almost all of the details that were
available in the asserted Brady materials, and were able to get most
of those details before the jury. Moreover, an even more powerful
argument as to the greater culpability of the other conspirators, which
the Brady materials might have provided, would not have eliminated
the core prosecution argument that Billy White died only because
"somebody," i.e., Ernest Basden, "[wa]s willing to take the money."
Accordingly, we cannot hold that Basden has shown that the state
postconviction court was unreasonable in concluding that he failed to
show a reasonable probability of a different sentence.5
5

Basden seeks an evidentiary hearing on the prejudice at sentencing of

the Brady materials and on his claim based on the destruction of documents, see infra Part V. The district court refused to grant a hearing reasoning that Basden had produced no disputes of fact at the state
postconviction court or in district court requiring resolution at a hearing.
Although Basden asserts that "genuine issues of material fact" necessitate
a hearing on both issues, he does not discuss what such a hearing would
explore. We conclude that the district court did not err in refusing to hold
a hearing. See McCarver v. Lee, 221 F.3d 583, 597-98 (4th Cir. 2000).

BASDEN v. LEE

15

III.
Basden also contends that the State violated Napue v. Illinois, 360
U.S. 264 (1959), which holds that a State denies a defendant due process by knowingly offering or failing to correct false testimony. A
Napue claim requires a showing of the falsity and materiality of testimony and the prosecutors knowledge of its falsity. Perjury offered
under these circumstances is material if "there is any reasonable likelihood that the false testimony could have affected the judgment of
the jury." Agurs, 427 U.S. at 103.
Basden bases his Napue claim on the testimony of Special Agent
Smith, who stated at trial, under oath, that he "didnt know" Tim
Jones. In fact, postconviction discovery revealed not only that Agent
Smith knew Jones, and knew him to be a confidential informant for
the police, but also that Agent Smith had met with Jones more than
once in investigating Billy Whites murder.
No court has ever made a factual finding as to whether Agent
Smiths testimony was false or whether the prosecutors knew it was
false. (Agent Smith and the states two prosecutors have filed affidavits stating that the court reporter transcribed the wrong name, that
actually Agent Smith was asked if he knew Tim Conners the
phony name Taylor gave himself in luring Billy White to the murder
scene and that the testimony was truthful, i.e., Agent Smith did not
know a Tim Conners; defense counsel, however, attest that the transcript of the trial is correct.) The state postconviction court instead
assumed that Agent Smiths testimony was false and known to be
false but nonetheless rejected Basdens Napue claim, ruling that even
so the testimony was not material. The court stated three reasons for
its materiality ruling: the jury did not hear the testimony, Agent
Smiths credibility was not an issue at trial, and Basden confessed to
the crime before trial and in court.
Basden himself recognizes that his Napue challenge is intertwined
with his Brady claims; he maintains that the state postconviction court
overlooked the Brady implications of the assertedly false testimony
in assessing its materiality. Given that the jury did not hear the relevant part of Agent Smiths testimony, that testimony could only have
affected the jury through its Brady implications i.e., the falsehood

16

BASDEN v. LEE

kept Basden from acquiring the asserted Brady materials and using
them in certain ways. We have, however, concluded that the state
postconviction court was not unreasonable in ruling that the State did
not violate Brady when it failed to disclose the materials in question.
Given that decision, we cannot conclude that the state postconviction
courts rejection of a Napue claim based on nondisclosure of the same
materials was unreasonable.
IV.
Basden argues that the State denied him due process by destroying
evidence that might have assisted his defense. Under Arizona v.
Youngblood, 488 U.S. 51 (1988), if a criminal defendant can show
that the police failed to "preserve potentially useful evidence" with
bad faith, he or she has been denied due process. Id. at 58. However,
"unless a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id.
Basden bases his Youngblood claim on the alleged destruction of
evidence that might have been useful to him, including handwritten
notes of police interviews (later reduced to typing), tapes of conversations, and a map drawn by Basden himself. He argues that this
destruction violated two state court orders to preserve this evidence,
and that both the violation of these orders and the false testimony he
alleges in his Napue claim show bad faith on the part of the State.
The district court ruled that Basden raised this claim on direct
appeal only as a matter of state law, thus procedurally defaulting his
federal constitutional claim. The state postconviction court rejected
the Youngblood claim on the merits alone, however, supporting Basdens argument that he properly preserved it. Accordingly, we consider Basdens Youngblood claim on the merits under the deferential
standard set forth in 28 U.S.C.A. 2254(d).
Basdens first asserted evidence of bad faith violation of state
court orders cannot suffice. He argues that the destruction of evidence to which he points violated state law and specific court orders.
But the state postconviction court ruled to the contrary, and we have
no authority to review this state-law ruling.

BASDEN v. LEE

17

Nor do we find the bad faith necessary for this Youngblood claim
in the alleged perjury at trial that was the basis of Basdens Napue
claim. Again assuming that Agent Smith lied about his knowledge of
Tim Jones, that falsity does not establish bad faith in the destruction
of the largely unrelated evidence on which Basden relies. Only one
of the items that Basden cites the tape of a conversation between
Jones and Taylor on February 10, 1992 was even tangentially
related to the subject of Agent Smiths assertedly false testimony.
Most of the destroyed evidence was memorialized in written summaries before its destruction, and a written description of the creation of
the Jones tape, in particular, survives. Finally, the state postconviction
court ruled that almost all of the alleged destruction, including the
destruction of the tape involving Jones, was in keeping with state law
and police procedures, and Basden challenges neither these rulings
nor the constitutionality of the underlying state laws and procedures.
We do not see bad faith here, and we therefore have no basis on
which to conclude that the state postconviction courts rejection of
Basdens Youngblood claim was clearly erroneous.
V.
Basden argues that his trial counsels assistance was ineffective in
eleven ways, depriving him of his constitutional right to counsel. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v.
Cronic, 466 U.S. 648, 658-61 (1984). Basden pursued only one of
these claims on direct appeal. Basden, 451 S.E.2d at 244. The state
postconviction court addressed and rejected one other claim on the
merits, and found that the other ten were procedurally barred as well
as rejecting them, too, on the merits. The district court addressed and
rejected two of the claims on the merits, and ruled that the other nine
were procedurally defaulted because of the state postconviction
courts ruling that they were procedurally barred under North Carolina law. We begin with the claims addressed on the merits, and proceed to those deemed to have been defaulted.
A.
Basden asserts that he was denied effective assistance of counsel
because of an unauthorized admission of guilt by trial counsel in his
opening statement. Confronting affidavits to the contrary, the state

18

BASDEN v. LEE

postconviction court ruled that "the record reflects that the defendant
concurred in the decision to admit guilt to the lesser offense in the
opening statement." This asserted "factual finding" does not dispose
of Basdens claim, because it constitutes a pure credibility determination made without benefit of an evidentiary hearing. For a different
reason, however, we cannot find that the state postconviction courts
conclusion was unreasonable. We have already discussed the impact
of Basdens full, voluntary, and detailed pretrial confession on the
likelihood of his conviction. For the same reason, Basden cannot
show prejudice under Strickland with respect to this claim. Cf.
Haynes v. Cain, 272 F.3d 757 (5th Cir. 2001) (ruling that an unauthorized admission of guilt in an opening statement constituted constitutionally ineffective assistance in a case in which the defendant had
never confessed).
Basden also contends that he was denied effective assistance of
counsel because his trial counsel neither understood nor protected his
rights under Brady. He bases this claim on an in-court colloquy
between the court, his counsel, and the prosecutor. Basdens trial
counsel had moved, in writing, for disclosure of "all . . . records
and/or information which argueably [sic] could be helpful or useful
to the defense." Orally, in response to this motion, the prosecutor said
he did not "know of any evidence that we have that we intend to
introduce that would be arguably subject to suppression." Basdens
counsel did not press further.
Basden did not raise this claim on direct appeal, see Basden, 451
S.E.2d 238, but after postconviction discovery, the state postconviction court addressed and rejected it on the merits alone, as did the district court. Both courts rejected this claim solely by reliance on their
prior rulings that no Brady materials were withheld.
In light of our Brady analysis, we agree with the state postconviction court and the district court. We further note that Basdens written
Brady motion did ask for all Brady evidence. We think it clear that
everyone at the hearing understood the contours of Brady, and that
nothing turns on the prosecutors apparently inadvertent use of the
word "suppression" in responding to a later oral request. We would
not permit the State to hide behind the technicalities of its response
to a Brady request in defending a failure to disclose Brady materials.

BASDEN v. LEE

19

See Agurs, 427 U.S. at 110 ("[T]here are situations in which evidence
is obviously of such substantial value to the defense that elementary
fairness requires it to be disclosed even without a specific request.").
Nor will we permit Basden to argue that his counsels performance
was constitutionally ineffective on the basis of this sort of hypertechnical argument. Basdens counsel sought Brady materials, and
accepted the States assurance in open court that all had been disclosed. Even if Brady materials existed, we see no evidence that this
performance was constitutionally deficient for failure to understand or
protect Basdens rights under Brady.
B.
Basden brings nine additional claims of ineffective assistance
for failure to move to continue the sentencing hearing, denial of the
defense motion to continue the trial, failure to move to suppress the
statement by Basden, waiver of venue, inadequate investigation of
juror bias in voir dire, introduction of Taylors statements, failure to
explore residual doubts concerning Basdens guilt, failure to find and
present mitigating evidence at sentencing, and cumulative error.
The first claim is particularly troubling. Basdens counsel apparently knew that Basden was to testify for the State at Sylvia Whites
trial for the murder of her stepson only a few days after his scheduled
sentencing. If defense counsel had successfully moved to continue
Basdens sentencing until after that testimony, Basden could have
submitted an additional statutory mitigating factor to the jury. See
N.C. Gen. Stat. 15A-2000(f)(8) (1999). But Basdens counsel never
made the necessary motion.
The state postconviction court found that on direct appeal Basdens
appellate attorney "was in a position to raise" all nine of these claims
(including the failure to move for continuance of the sentencing hearing), and that failure to do so meant that the claims were procedurally
barred. See N.C. Gen. Stat. 15A-1419(a)(3) (1999). Later, after Basden had received postconviction discovery, the state postconviction
court affirmed its earlier ruling, observing that the postconviction discovery material "does not related [sic]" to these ineffective-assistance
claims. Since 15A-1419(a)(3) is an adequate and independent statelaw ground, the state courts ruling on that ground means that Basden

20

BASDEN v. LEE

has procedurally defaulted these remaining ineffective-assistance

claims. McCarver, 221 F.3d at 588-89.6
Because Basden does not argue that his procedural default should
be excused on the grounds of factual innocence or a fundamental miscarriage of justice, see McCleskey v. Zant, 499 U.S. 467, 494-95
(1991); 28 U.S.C.A. 2254(e)(2)(B), to overcome the ruling of procedural default, he must demonstrate cause for his failure to raise a
claim on direct review and actual prejudice resulting from the default.
McCarver, 221 F.3d at 588. To establish cause, Basden must make a
showing of "some objective factor external to the defense [that]
impeded counsels efforts to comply with the States procedural rule,"
such as "a showing that the factual or legal basis for a claim was not
reasonably available to counsel." Murray v. Carrier, 477 U.S. 478,
488 (1986) (citations and internal quotation marks omitted). A petitioner may not show cause by pointing to evidence that the petitioner
"knew about or could have discovered" through a "reasonable investigation." McCleskey, 499 U.S. at 497-98.
The district court ruled that Basden had "made no attempt" to show
cause for the default and prejudice. Basden points to 22 documents
all of which were assertedly unavailable on direct appeal that,
he contends, provide a factual basis for these ineffective-assistance
claims.
Many of the documents on which Basden relies were, in fact,
plainly available to his counsel on direct appeal. His certificate of
honorable discharge and his medical history were the subject of testimony at trial and fully available to his counsel. Affidavits about
events before and during trial by Basden himself, his sister Rose
Clark, and his counsel on direct appeal were all available to the latter.
Nor has Basden offered any reason to doubt that documents that were
in his trial counsels file or filed with the court before trial were avail6

Basden cites a recent decision of the Supreme Court of North Carolina, State v. Fair, 557 S.E.2d 500, 524-25 (N.C. 2001), to argue that he
did not have to raise his ineffective-assistance claims on direct appeal.
When the state postconviction court ruled in Basdens case, however,
Fair had not yet been decided, and Fair does not purport to describe
North Carolina practice before it was issued.

BASDEN v. LEE

21

able to his counsel on direct appeal. He offers expert testimony concerning events before and during trial, with no suggestion that his
counsel on direct appeal could not have obtained the same opinions.
The availability of these documents means that Basden cannot
show cause for his procedural default with respect to five claims:
denial of his motion to continue the trial, waiver of venue, the introduction of Taylors statements, failure to explore residual doubts concerning Basdens guilt, and failure to move to suppress Basdens
confession. None of the remaining documents on which he relies to
show cause, discussed below, have any relationship to these five
claims, and so Basden has failed to show cause with respect to each
of them.
Basden next points to affidavits by both prosecution and defense
counsel in Sylvia Whites trial for the murder of her stepson, describing Basdens assistance to the prosecution and the significant impact
of his testimony in that case. That assistance followed his own conviction by only six days. Moreover, Basden himself certainly knew
that he had assisted Whites prosecutors and offers no reason why that
knowledge would not have been available to his counsel on direct
appeal. Because the knowledge that Basden had helped to convict
Sylvia White was available to his counsel on direct appeal, Basdens
claim based on his lawyers failure to move to continue his sentencing
is procedurally defaulted. Because he has pointed to no other mitigation evidence that was not available to his counsel on direct appeal,
his claim based on failure to find and present mitigating circumstances is also procedurally defaulted.
Finally, Basden contends that his trial lawyers questioning of a
juror at voir dire was so inadequate that it constituted ineffective
assistance. He relies on an affidavit by the juror, dated well after his
direct appeal, in which the juror expresses a belief that capital punishment is appropriate for almost all killings, and on voir dire colloquies
between counsel and the juror in question. The first colloquy was
between the juror and the prosecutor:
Q: . . . [C]an you tell me how you feel about the death
penalty?

22

BASDEN v. LEE

A: I think I could, if I thought a person is guilty, I would

want the death penalty. If I thought they had deliberately
killed someone and planned it and, I would recommend the
death penalty.
Q: Okay, so you think there are some cases that are bad
enough that the death penalty ought to be used, is that right?
A: Thats right and there is some that is not.
Q: And then others that it ought not to be.
A: I believe thats right.
****
Q: . . . [I]n a proper case, could you yourself vote to give
somebody the death penalty?
A: Yes, sir, I think I could.
****
Q: . . . Lets suppose you sit on this jury and . . . find him
guilty of first degree murder . . . . At that point then are you
going to automatically say well, weve convict of him [sic]
of premeditated murder, therefore Im going to give him the
death penalty?
A: I dont think so.
Q: No, you would wait until you heard the rest of the evidence, is that right?
A: The death penalty is forever and its permanent.
Basdens own counsel then had this exchange with the juror:
Q: And when you get to the second trial, do you understand that youre not required to impose a death sentence

BASDEN v. LEE

23

unless you yourself decide that is what you wanted to do

based on weighing the evidence which is aggravating and
the evidence which is mitigating and after weighing those
two situations there, decide what you think is proper and the
particular case that youre voting on?
A: Right.
The state postconviction court ruled that "defense counsels [sic]
questioning of [the juror] was adequate." Even if we accept that Basden has shown cause for not presenting the jurors affidavit on direct
appeal, he has failed to demonstrate why this ruling by the state court
was unreasonable. Accordingly, Basdens last specific claim for constitutionally ineffective assistance of counsel fails, and we therefore
also reject his claim based on cumulative error.
VI.
Finally, Basden argues that North Carolinas "short-form" indictment for murder is unconstitutional under Jones v. United States, 526
U.S. 227 (1999) and Apprendi v. New Jersey, 530 U.S. 466 (2000),
because it omits essential elements of the offense and aggravating factors relied upon to impose the death penalty. Previously, we have
ruled that Apprendi and Jones do not apply to cases on collateral
review. See United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir.
2001); see also Hartman v. Lee, ___ F.3d ___, 2002 WL 340642 (4th
Cir. March 5, 2002). Of course, Sanders binds us here, and indeed,
Basden notes that he raises this claim before us only "for the purposes
of preserving it."
VII.
In sum, we cannot conclude that, given clearly established federal
law, the state postconviction court was unreasonable or that the district court erred in rejecting Basdens claims. We, therefore, affirm
the district courts denial of all habeas relief.
AFFIRMED