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No. 10-7417
CLINTON SMITH,
Petitioner - Appellant,
v.
GERALD J. BRANKER, Administrator,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
District Judge. (5:09-hc-02082-D)
Submitted:
Decided:
Malcolm Ray Hunter, Jr., David Weiss, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant. Clarence Joe
DelForge, III, Assistant Attorney General, Raleigh, North
Carolina, for Appellee.
PER CURIAM:
Clinton
Cebert
Smith
appeals
the
district
courts
Smiths
ex-girlfriend,
Sylvia
Cotton,
and
their
In
three
in
January
1996.
One
of
the
children,
Britteny,
died; Cotton and the other two children were hospitalized but
eventually
Carolina
counts
recovered.
jury
of
of
Smith
one
attempted
count
was
of
later
convicted
first-degree
first-degree
murder
by
murder.
North
and
three
Although
Smith
relief
(MAR)
in
state
court,
alleging,
in
of
toxicologist
letter
written
whom
the
prosecution
by
Dr.
had
Darrell
consulted
Sumner,
during
a
its
Carolina
denied
certiorari.
Smith
then
filed
his
2254
and
Giglio
v.
United
States,
405
U.S.
150
(1972),
in
We now
affirm.
This court reviews de novo a district courts denial
of habeas corpus relief on the basis of a state court record.
See
Tucker
v.
Nevertheless,
petitioners
Ozmint,
where
claim
350
the
on
F.3d
state
the
433,
438
court
merits,
(4th
has
the
Cir.
2003).
adjudicated
Antiterrorism
a
and
adjudication
(1)
resulted
in
decision
that
was
evidence
presented
in
the
State
court
proceeding.
28
Ct.
Strickler
v.
June
19,
Greene,
2002)
527
(the
U.S.
263,
MAR
281
Decision)
(1999)).
(quoting
That
is,
accused,
but
also
prosecutions witnesses.
when
it
can
be
used
to
impeach
the
667, 676 (1985); United States v. Trevino, 89 F.3d 187, 189 (4th
Cir. 1996).
disclosed
to
the
defense,
the
result
of
the
proceeding
A reasonable
Id. at 435.
The letter that is the genesis of Smiths Brady claim
death.
omitted
And
fourth,
certain
data
he
wondered
pertaining
why
to
the
autopsy
report
acetylcholinesterase
determinations.
In this appeal, Smith declines to pursue any argument
with respect to the third and fourth concerns outlined in Dr.
Sumners letter.
the
time
lapse
and
solubility
issues
identified
in
his
In
uncertainty
introduced
to
the
about
victims
reasonable
precisely
probability
to
how
support
the
a
pesticide
theory
that
was
the
had
Dr.
Sumners
letter
been
however,
we
cannot
say
that
the
state
MAR
courts
only
to
prove
that
Smith
Britteny,
purposes
only
acted
with
malice
and
with
Dr.
if
Sumners
further
letter
is
specificity
material
about
the
for
Brady
particular
contending
definitively
the
that,
precise
if
the
medium
State
by
which
to
prove
Di-Syston
was
pesticide
Nevertheless,
may
Smith
have
never
been
identifies
MAR
court
that
the
introduced
evidence
6
precisely
accidentally.
what
type
of
Smith
introduced
the
pesticide
into
Cottons
home
for
the
express
purpose
of
of
any
residual
lack
of
clarity
regarding
the
reason
for
the
state
MAR
court
to
conclude
that
the
Accordingly,
we
affirm
the
district
argument
adequately
because
presented
in
the
the
facts
and
materials
court.
We
deny
We dispense with
legal
before
contentions
the
court
are
and