MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

Now before the Court is Petitioner's counselled Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. §2254 seeking relief from her state court convictions. A Response to the Petition for Writ of Habeas Corpus, along with exhibits and Petitioner's Reply, were filed. The matter is now ready for dispositive review. The Court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2014); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (Petitioner not entitled to a hearing under 28 U.S.C. §2254(e)(2)). For the reasons to follow, the Petition will be denied and dismissed with prejudice.

Factual and Procedural History

Petitioner and her husband Benjamin (BJ) Sifrit were charged in the Circuit Court for Worcester County with the murders of Martha Crutchley and Joshua Ford. ECF No. 9, Exs. 1, 16 & 17. Petitioner and her husband were tried separately in alternate locations. Benjamin Sifrit was tried first in the Circuit Court for Montgomery County, the Honorable Paul H. Weinstein presiding. Id., Ex. 17. Thereafter, Petitioner was tried by a jury in the Circuit Court for Frederick County, the Honorable G. Edward Dwyer presiding, in June of 2003. Id., Ex. 7-11. The facts developed at both trials, as recounted by the Court of Appeals of Maryland, follow:

What happened in the early morning hours following the night at Seacrets is unknown. We do know, however, that at 3:00 a.m. on Sunday, May 26, 2002, Erika called 911 claiming that people she did not know were in her condominium unit and she could not find her purse. She was "afraid I'm going to have a robbery here." The call abruptly ended and no one was dispatched to the condominium.

After the MOU was executed, Erika told Detective Bernal that most of Joshua Ford's and Martha Crutchley's body parts were in black garbage bags that Benjamin had packed into Navy kit bags before throwing in a dumpster. Erika told the detective that she helped Benjamin throw the bags containing the body parts in a dumpster behind a Food Lion grocery store. The Food Lion dumpster was located across the street from the dumpster that Erika had previously directed the detective to search. After searching the landfill where the contents of the Food Lion dumpster had been emptied, police recovered body parts of Mr. Ford and Ms. Crutchley. Police recovered only the left leg of Ms. Crutchley. Thus, her cause of death was never determined. Police recovered the torso and both arms of Mr. Ford. Additionally, two bullets fired from the .357 magnum recovered from Erika at Hooters on the night of May 31 were found in Mr. Ford's torso.

In an interview with Detective Bernal on June 24, 2002, Erika admitted to being present in the condominium that she shared with Benjamin when three of the shots were fired. Erika was scheduled to have a polygraph examination on July 23, 2002, but Deputy State's Attorney Scott Collins terminated the polygraph because of incriminating statements that Erika made in her prepolygraph interview with United States Secret Service agents.2 Erika filed a Motion to Enforce the Memorandum, which she claimed required that the State give her the polygraph examination. The Circuit Court for Worcester County denied the Motion to Enforce the Memorandum on the grounds that the incriminating statements that Erika had made violated a condition of the MOU.

At Erika's jury trial, much testimony was received concerning Erika's behavior in the days after Martha Crutchley and Joshua Ford were killed. On Tuesday, May 28, 2002, Erika and Benjamin went outlet shopping in Rehoboth Beach. Erika got a new tattoo, and the couple went to a Home Depot store to buy supplies to replace the bathroom door and to purchase paint for the condominium. At the Home Depot, Erika met and spoke to Anne Wright, who testified at the trial as follows:

The State's theory in both cases was that after leaving Seacrets that night, the two couples had returned to the Sifrits' condominium. Once in the condominium the Sifrits engaged in a "missing purse game" in which they claimed Erika's purse was missing. They demanded the other couple find the purse and when it couldn't be found, somehow got them into the upstairs bathroom where both Sifrits shot Mr. Ford and in some other manner killed Ms. Crutchley.

The State's theory is based in part on the testimony of Melissa Seling ("Melissa") who met the Sifrits the night of May 29 through her friend Justin Todd Wright ("Todd"). Melissa testified that when she met Todd, he and the Sifrits were intoxicated and she was the only one that was sober. Melissa joined the Sifrits and Todd at a couple of bars but she did not drink. At the end of the evening, Melissa was worried about Benjamin's ability to drive so she agreed to follow the Sifrits back to their condominium. When the four arrived at the condominium, Melissa, at Benjamin's urging, helped Erika up to the condominium because she seemed so intoxicated that she might fall over without help. Then, once at the door, Erika located her keys in her purse and opened the door with no problem. Erika began showing Melissa around the condominium. Within 5-10 minutes of having the purse at the door, Erika and Benjamin claimed that someone had taken Erika's purse and that Melissa had to look for it.

At some point during the search for the purse, Benjamin brandished a gun and became more adamant about finding the purse. Benjamin made a number of statements during the search regarding people that had been there before who had tried to rip them off and that he was "doing the world a justice by ridding the earth of bad people." Melissa testified that he also told her "if we ripped them off . . . he would kill us the same way he killed those other people." Melissa was not clear in her recollection whether Benjamin had said "just like I killed the other people" or "just like we killed the other people" (emphasis added). Melissa testified that she felt threatened by the gun and asked that it be put away. She also testified that during the search she saw a door upstairs off of its hinges with a bullet hole in it. Eventually, Benjamin discovered the purse in a location that had previously been searched. He then sat down with Melissa to show her his gun and what he called Erika's gun, the .357 magnum used to kill Joshua Ford.

Erika stated that Benjamin then asked her what he should do, and she told Benjamin that he should "do it," meaning he should shoot Crutchley and Ford. Id. Benjamin fired four shots from the handgun he was holding, one of which was a "head shot" to Ford. Id. at 23. Erika admitted during the interview that she thereafter used a knife to cut Crutchley's body. Id. This evidence was not introduced at Erika's trial.

Id., Ex. 16, p, 3-11.

Benjamin Sifrit was convicted of second degree murder and first degree assault of Crutchley and accessory after the fact for the murders of both Crutchley and Ford. Id., Ex. 17. He also pleaded guilty to second degree burglary and carrying a dangerous weapon. He was sentenced on July 7, 2003, to a 30 year term of imprisonment for second degree murder, a concurrent term of 15 years for first degree assault, a consecutive five year term of imprisonment for accessory after the fact, a consecutive three year term for second degree burglary and a concurrent three year term for carrying a dangerous weapon. Id.

Petitioner was convicted on June 10, 2003, of the first-degree murder of Ford, second degree murder of Crutchley and theft charges in regard to the burglary at Hooters. Id., Ex. 16. She was sentenced to life imprisonment for the first degree murder of Ford, a consecutive 20 year term for the second degree murder of Crutchley, and a concurrent term of 18 months for the theft charges. Id.

She noted a timely appeal. The Court of Appeals, on its own initiative, took Petitioner's case before it was considered by the Court of Special Appeals. Thereafter, Benjamin Sifrit's request that the Court of Appeals also take his appeal was granted. In her appeal, Petitioner raised the following claims:

Id. Ex. 13, p. 2.

Petitioner's convictions were affirmed. Id., Ex. 16 & 17. Petitioner filed a petition for writ of certiorari in the United States Supreme Court, which was denied on January 10, 2005. See Sifrit v. Maryland, 543 U.S. 1056 (2005).

Petitioner instituted state post-conviction proceedings on September 7, 2005. Id., Ex. 2. Subsequently, Petitioner filed a counseled consolidated post-conviction petition claiming trial counsel was ineffective for:

Id., Ex. 18, pp. 4-14.

Hearings on Petitioner's claims were held on January 5, 2009, January 7, 2009, and February 9, 2009, id., Ex. 19-21, and post-hearing memoranda were submitted by the parties. Id., Ex. 22-25. In a statement of reasons entered on March 12, 2009, post-conviction relief was denied. ECF No. 1, Ex. 1.

Petitioner filed an application for leave to appeal the adverse findings of the postconviction court. ECF No. 9, Ex. 26. Initially, the application raised one question:

Id. Petitioner also argued that trial counsel's deficient investigation deprived her of the opportunity to raise a not criminally responsible (NCR) defense. Id., 2-3, 8, 10, 12-13, 16, 19. Petitioner further claimed that trial counsel was ineffective for calling Melissa Seling as a defense witness and allowing Petitioner to waive her right to remain silent and submit to an interview with law enforcement. Petitioner reiterated her claim of cumulative error. Id., p. 30. The application for leave to appeal was summarily denied by the Court of Special Appeals in an unreported opinion on December 19, 2011.1 ECF No. 1, Ex. 2.

In the instant Petition, as renumbered by Respondents, Petitioner maintains that:

ECF No. 1, p. 11-12.

Threshold Considerations

Timeliness & Exhaustion of State Remedies

Respondents do not contend, and the Court does not find, that the Petition was filed outside the one-year limitations period set forth in 28 U.S.C. § 2244(d)(1). Further, Petitioner no longer has any state direct review or collateral review remedies available to her with respect to the claims raised in this court; thus, her claims are exhausted for the purpose of federal habeas corpus review.

Procedural Default

Before Petitioner may seek habeas relief in federal court, she must exhaust each claim presented to the federal court by pursuing remedies available in state court. See Rose v. Lundy, 455 U.S. 509, 521 (1982). This exhaustion requirement is satisfied by seeking review of the claim in the highest state court with jurisdiction to consider the claim. See O=Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728 (1999); 28 U.S.C. § 2254(b) and (c). In Maryland, this may be accomplished by raising certain claims on direct appeal and with other claims by way of post-conviction proceedings. Exhaustion is not required if at the time a federal habeas corpus petition is filed. Petitioner has no available state remedy. See Teague v. Lane, 489 U.S. 288, 297-98 (1989).

Where a petitioner has failed to present a claim to the highest state court with jurisdiction to hear it, whether it be by failing to raise the claim in post-conviction proceedings or on direct appeal or by failing to timely note an appeal, the procedural default doctrine applies. See Coleman v. Thompson, 501 U.S. 722, 749-50 (1991) (failure to note timely appeal); Murray v. Carrier, 477 U.S. 478 (1986) (failure to raise claim on direct appeal); Murch v. Mottram, 409 U.S. 41, 46 (1972) (failure to raise claim during post-conviction); Bradley v. Davis, 551 F.Supp. 479, 481 (D. Md. 1982) (failure to seek leave to appeal denial of post-conviction relief). The Court does not find that any of Petitioner's claims have been procedurally defaulted.

Standard of Review

An application for writ of habeas corpus may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). The federal habeas statute at 28 U.S.C. § 2254 sets forth a "highly deferential standard for evaluating state-court rulings" Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Bell v. Cone, 543 U.S. 447 (2005). This standard is "highly deferential" and "difficult to meet." Cullen v. Pinholster, 563 U.S. ___, ___, 131 S.Ct. 1388, 1398 (2011); ); see also White v Woodall, 2014 WL 1612424, *4 (April 23, 2014, U.S. ___, 134 S.Ct. 1697, quoting Harrington v. Richter, 562 U.S. ___, ___, 131 S.Ct. 770, 786-87 (2011) (state prisoner must show state court ruling on claim presented in federal court was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").

A federal court may not grant a writ of habeas corpus unless the state's adjudication on the merits: 1) "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 2) "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). A state adjudication is contrary to clearly established federal law under § 2254(d)(1) where the state court 1) "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or 2) "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000).

Under the "unreasonable application" analysis under 2254(d)(1), a "state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). "Rather, that application must be objectively unreasonable." Id. Thus, "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 785 (internal quotation marks omitted).

Further under § 2254(d)(2), "a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S.290, 301 (2010). "[E]ven if reasonable minds reviewing the record might disagree about the finding in question," a federal habeas court may not conclude that the state court decision was based on an unreasonable determination of the facts. Id. "[A] a federal habeas court may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied established federal law erroneously or incorrectly." Renico v. Lett, 599 U.S. 766, 773 (2010) (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)).

The habeas statute provides that "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). "Where the state court conducted an evidentiary hearing and explained its reasoning with some care, it should be particularly difficult to establish clear and convincing evidence of error on the state court's part." Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010). This is especially true where state courts have "resolved issues like witness credibility, which are `factual determinations' for purposes of Section 2254(e)(1)." Id. at 379.

The Antiterrorism and Effective Death Penalty Act (AEDPA) erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA requires "a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 786-787 (2011). "If this standard is difficult to meet"—and it is—"that is because it was meant to be." Id., 786. A federal court reviewing a habeas petition will not lightly conclude that a State's criminal justice system has experienced the "extreme malfunctio[n]" for which federal habeas relief is the remedy. Id., 786 (internal quotation marks omitted).

Analysis

I. INEFFECTIVE ASSISTANCE OF COUNSEL

When a petitioner alleges a claim of ineffective assistance of counsel, she must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The second prong requires the Court to consider whether there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A strong presumption of adequacy attaches to counsel's conduct, so strong in fact that a petitioner alleging ineffective assistance of counsel must show that the proceeding was rendered fundamentally unfair by counsel's affirmative omissions or errors. Id. at 696. Although Astrategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,@ it is equally true that Astrategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.@ Id. at 690-91. Where circumstances are such that counsel should conduct further investigation to determine Awhether the best strategy instead would be to jettison [a chosen] argument so as to focus on other, more promising issues,@ failure to conduct further investigation can amount to constitutionally deficient assistance. See Rompilla v. Beard, 545 U.S. 374, 395 (2005) (O=Connor, J., concurring).

Whether retained or appointed, defense attorneys do not have infinite amounts of money and time with which to investigate and pursue substantially all plausible lines of defense, nor is such conduct realistic or constitutionally mandated. See Washington v. Watkins, 655 F.2d 1346, 1356 (5th Cir. 1981) ("`counsel for a criminal defendant is not required to pursue every path until it bears fruit or until all conceivable hope withers.'") (citation omitted). The fact that counsel could have conducted a more thorough investigation that might have borne fruit does not establish that the attorney's performance was outside the wide range of reasonably effective assistance. See Burger v. Kemp, 483 U.S. 776, 794-95 (1987). Counsel should be strongly presumed to have rendered adequate assistance and made all significant decision in the exercise of reasonable professional judgment and the burden to show that counsel's performance was deficient rests squarely on the defendant. See Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 17 (2013).

Absent clear and convincing evidence to the contrary, a claim that counsel=s decision was premised on trial strategy cannot be disturbed. See Evans v. Thompson, 881 F.2d 117, 125 (4th Cir. 1989). A defendant must overcome the "`strong presumption' that counsel's strategy and tactics fall `within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). "There is a strong presumption that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect." Harrington, 131 S.Ct. at 790 (internal quotation marks and citation omitted). "The standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Harrington, 131 S.Ct. at 788 (internal citations omitted). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

A showing of prejudice requires that 1) counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable, and 2) there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. See Strickland, 466 U.S. at 687, 694. "The benchmark [of an ineffective assistance claim] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687; Harrington, 131 S.Ct. at 787-88 (citing Strickland, 466 U.S. at 687). A determination need not be made concerning the attorney's performance if it is clear that no prejudice would have resulted had the attorney been deficient. Strickland, 466 U.S. at 697.

Using this framework, Petitioner's claims of ineffective assistance of counsel will be considered in turn.

A. FAILURE TO OBTAIN MENTAL HEALTH EVIDENCE INCLUDING NCR AND INTOXICATION DEFENSES:2

The gravamen of Petitioner=s claims is that the state courts unreasonably applied Strickland and Wiggins v. Smith, 539 U.S. 510 ( 2003) (addressing capital trial attorney's duty to investigate) in light of the record. Petitioner argues that the post-conviction court applied Strickland and Wiggins in an objectively unreasonable manner by failing to conclude that trial counsel's investigation and presentation of defenses based on Petitioner's mental illnesses fell below acceptable professional norms.

Rather than focusing on Petitioner' mental health problems, counsel pursued a defense that Petitioner was not involved in the crime. Trial counsel only mentioned Petitioner's mental health problems and the medications she was using during closing argument, whereupon the State objected to those arguments based on trial counsel's failure to have elicited facts regarding these issues during the trial. Petitioner further maintains that after the jury rejected trial counsel's trial theory, he failed to investigate or pursue any basis for mitigation during the sentencing proceedings. ECF No. 1. Petitioner maintains that these alleged deficiencies severely compromised Petitioner's defense at trial and her case in mitigation at sentencing. Id. Petitioner argues that the state court=s adjudication of her ineffective assistance claims was unreasonable Ain the same way@ as counsel in Wiggins, 539 U.S. at 527-28 and like cases dealing with counsel's duty to investigate a defendant's mental health.

Petitioner alleges she was prejudiced by counsel's failure to use her history of mental health problems to pursue a not criminally responsible ("NCR") plea or a defense of intoxication. She asserts that she suffered from borderline personality disorder, dependent personality disorder, obsessive compulsive disorder, major depressive disorder and alcohol and drug abuse. She claims that trial counsel, who consulted with an expert on spousal abuse syndrome prior to trial and who had Petitioner evaluated by three mental health professionals (at the trial court's request) prior to sentencing, failed to adequately investigate her mental health history leading up to the murders in that he failed to secure and provide to the mental health experts records concerning mental health treatment which occurred subsequent to her marriage to BJ and prior to the murders. The state post-conviction court rejected this claim finding:

ECF No. 1, Ex. 1, p. 12-18.

The state court's determination survives review. Petitioner is unable to demonstrate either deficient performance on behalf of her trial counsel or prejudice arising from her counsel's alleged inadequate investigation into her mental health status. Petitioner presents no evidence that she would have considered an NCR plea or a defense of voluntary intoxication. Trial counsel testified that Petitioner, who was competent to participate in her own defense, would not have pursued any defense which indicated her direct participation in the murders. Further, counsel's opinion was that both NCR and voluntary intoxication were not viable defenses in Petitioner's case. Tuminelli testified that the defense team wished to avoid any defense which directly implicated Petitioner in the murders and which might have resulted in the admission of Petitioner's inculpatory pretrial statements which trial counsel was successful in having suppressed. Id. It is clear that pursuit of such a line of evidence was at odds with the Petitioner's own version of events and her defense that she did not participate in the homicides. Id., Ex. 19, p. 163-249.

Additionally, psychiatric assessments obtained prior to trial and again prior to sentencing did not provide any basis for pursuing an NCR defense. Dr. Katz reviewed Petitioner's personal and mental health history and interviewed her in order to determine whether the criminal conduct was occasioned by "Mental Disability, Emotional Disturbance, or Substance Abuse." He concluded that "the psychological factors cited above, need for perfection and depressive symptoms do not account for the actions related to the current offense. Ms. Sifrit was realistically aware of the events taking place around her, and by her own report did make decisions that were deliberate. Further, by her own report, her use of alcohol and Xanax at the time of the current offense, did not impair her ability to realistically perceive her environment, or make decisions that were deliberate." Id., Ex. 27. In the same vein, Dr. Stephen Curran concluded that while Petitioner suffered from "personality deficits and significant patterns of substance abuse," she did not present with "major psychiatric conditions." Id., Ex. 28. Dr. Diane Gutterman also concluded that there was "no evidence of a major psychiatric illness." Id. Ex. 29. In consulting with these experts, Petitioner was unable to provide identifying information of the mental health providers she consulted after her marriage to BJ and prior to the murders. At the time Petitioner was preparing for trial and sentencing with counsel, there was simply no evidence demonstrating that Petitioner met the criteria for an NCR or voluntary intoxication defenses or that further inquiry into her limited mental health records was necessary.

Under Strickland, counsel is permitted to "make a reasonable decision that makes particular investigations unnecessary." Strickland 466 U.S. at 691. Here, a reasonable attorney could decide to forgo further inquiry into Petitioner's competency or the defense of voluntary intoxication based upon the determinations of the experts consulted, as well as Petitioner's repeated contention that she was not directly involved in the homicides. "Counsel [is] entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies." Harrington, 562 U.S. at ___, 131 S.Ct. at 789. "An attorney need not pursue an investigation that would be fruitless, much less one that might be harmful to the defense." Id., at 790. Here, counsel had reason both to question the plausibility of an NCR or voluntary intoxication defense in light of Petitioner's contention that she was not directly involved in the murders, and also in light of the effort to keep from the jury her numerous inculpatory statements. The Court is unpersuaded that counsel's investigation was below par. Counsel cannot be faulted for failing to pursue additional defenses in light of the expert opinions regarding Petitioner's competency presented during the pretrial and presentencing proceedings, notwithstanding that those experts did not have access to Petitioner's full mental health records.

Further, counsel's theory of defense, that Petitioner was uninvolved in the crime rather than intoxicated, provided Petitioner a chance for complete acquittal, rather than merely reducing her exposure to the degree of murder. The selection of this theory of defense was clearly tactical. A tactical decision not to further investigate or pursue an involuntary intoxication defense is entitled to deference and cannot be second guessed. The pursuit of a defense that Petitioner was not involved in the murder, even at the expense of other defenses, was reasonable under the circumstances. Strickland, 466 U.S. at 689 ("It is all too tempting for a defendant to second-guess counsels' assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."). The Court declines to second-guess counsel in this regard.

The post-conviction court's findings are objectively reasonable given the testimony put forth at the post-conviction hearing, and are supported by the trial and post-conviction transcripts. The post-conviction court considered the testimony of the experts regarding Petitioner's competency at the time the crimes were committed, as well as their findings regarding the effect of her drug and alcohol use at the time of the crimes. Although the postconviction experts had access to Petitioner's complete mental health records, the post-conviction court was unpersuaded that Petitioner had shown either ineffective assistance of counsel in his investigation of the case or his handling of the trial. The state court also found Petitioner failed to demonstrate prejudice arising from counsel's failure to secure the mental health records. The findings are objectively reasonable and are deemed presumptively correct, pursuant to 28 U.S.C. '2254(d) and (e).

Even if the undersigned found trial counsel's conduct to be deficient, Petitioner would be entitled to no relief. "The pivotal question [in a § 2254 petition] is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Id. at 785. There is simply no indication that the post-conviction court's determination "was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement." Harrington 562 U.S. 86, ___ 131 S.Ct at 786-87 (2011). As noted above, the state post-conviction court identified the appropriate federal law as established by the Supreme Court for determining ineffective assistance of counsel claims and applied same in a manner that was not contrary or unreasonable to that Supreme Court precedent.3 In light of the record, there is no basis to find that the state court's determinations were unreasonable on the facts or on the law. There is no cause to disturb the post-conviction court decision under § 2254(d).

B. TESTIMONY OF MELISSA SELING

Petitioner maintains that trial counsel was ineffective in calling Melissa Seling as a defense witness to testify that Petitioner protected Seling from Benjamin Sifrit when he threatened Seling with a handgun. ECF No. 1, Memorandum at 46. In reviewing this claim, the post-conviction court found trial counsel's strategy was sound. Seling was called in order to support an inference that Benjamin acted unilaterally in the killings. The post-convict court held:

(Id., p. 23, lines 8-14.)

(Def. Ex. 21, p. 117, lines 17-23.)

ECF No. 1, Ex 1, pp 20-24.

Trial counsel's decisions regarding which witnesses to call at trial are entitled to substantial deference under Strickland. See Bunch v. Thompson, 949 F.2d 1354, 1364 (4th Cir. 1991) (choice of witnesses is a tactical decision to be made by trial counsel). The post-conviction court's review of the decision to call Seling as a witness for the defense is supported by the record and shall not be disturbed. See 28 U.S.C. §2254(d). That the jury was not persuaded by Tuminelli's inference, offered through Seling's testimony, that Benjamin was solely responsible for the murders does not render the decision to call Seling ineffective. Under the deferential standard accorded to state court rulings on federal habeas review, the state court's rejection of this ineffective assistance of counsel claim constituted a reasonable application of Strickland. See 28 U.S.C. § 2254(d). The post-conviction court's determination will not be disturbed.

C. PRETRIAL INTERVIEW WITH SECRET SERVICE

Petitioner alleges that Tuminelli was ineffective in having her waive her right to counsel and submit to a pretrial interview with the Secret Service. ECF No. 1, Memorandum pp. 44-45. Petitioner argues that Tuminelli "misunderstood the terms of the [memorandum of understanding] and mistakenly believed that, so long as Petitioner passed the polygraphs she would not be charged with murder, regardless of her admissions concerning her role in the murders." Id., at 44. Petitioner argues that trial counsel lacked experience with polygraph examinations at the time he negotiated the MOU and she further argues that she received constitutionally inadequate advice regarding the MOU. She states that her disqualification from and deprivation of the benefit of the MOU would not have occurred and she would not have been prejudiced if counsel had properly advised her that if she waived her right to remain silent and that by admitting involvement in the murder she would lose the benefit of the bargain. Id.

The Court finds, contrary to Respondent's assertion, that this claim was fairly presented to the state court and is therefore exhausted. The Court will therefore consider the merits of the claim.

The state post-conviction court rejected Petitioner's ineffective assistance of counsel claim arising from the MOU and the agreed upon polygraph interview finding:

ECF 1, Ex. 1, pp. 18-20.

The post-conviction court's ruling was not an unreasonable application of any clearly established Supreme Court precedent. Apparently, believing his client's representations that she did not participate in the murders of the victims, and Erika's father's assurance that she was telling the truth, Tuminelli counselled Petitioner to participate in the interview. If she passed the polygraph and demonstrated she had nothing to do with the murder she would have avoided the murder trial. However, before the polygraph had even begun Petitioner implicated herself in the murders thus voiding the MOU. Id., Ex. 19, p. 205. In negotiating the MOU, which was entered to close in time to Petitioner's arrest on the murder charges, while the State was still searching for the bodies, Tuminelli was able to secure protection for Petitioner from the death penalty as well as a guarantee that the state would not seek a sentence of life without parole. The uncontradicted testimony offered during the post-conviction proceedings was that Petitioner, along with her family, desired for her to cooperate and take the polygraph test, given that she maintained her lack of participation in the murders. The MOU gave Petitioner an opportunity, based on her assurances that she had nothing to do with the murders, to avoid prosecution. Additionally, after the MOU was voided, Tuminelli was able to insure that none of the inculpatory statements made by Petitioner could be used against her.

In light of the foregoing, there is simply no indication that Tuminelli's performance was deficient. As noted by the state court, Petitioner has failed to establish prejudice. Had Petitioner invoked her right against self incrimination and not submitted to the pretest interview, the polygraph test would not have been administered and the MOU voided—the same result that actually occurred. Petitioner has offered no scenario which would have changed the result of the negotiations regarding the MOU and is unable to demonstrate harm from the advice of counsel as her statements were not introduced at trial. The state court properly applied Strickland to the facts alleged regarding the MOU. For these reasons the Court concludes the state court's determination was neither "contrary to or involved an unreasonable application of clearly established Federal Law, as determined by the Supreme Court," nor based on an "unreasonable determination of the facts in light of the evidence presented at the State court proceeding." Habeas relief will be denied as to this claim.

D. CUMULATIVE ERROR

Pursuant to the cumulative error doctrine, "[t]he cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error." United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990); see also United States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002); United States v. Basham, 561 F.3d 302, 330 (4th Cir. 2009).

Generally, if a court "determine[s] ... that none of [a defendant=s] claims warrant reversal individually," it will "decline to employ the unusual remedy of reversing for cumulative error." United States v. Fields, 483 F.3d 313, 362 (8th Cir. 2007). To reverse for cumulative error, the errors must "so fatally infect the trial that they violated the trial=s fundamental fairness." Basham, 561 F.3d at 330 (quoting United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004)). When "none of [the trial court's] individual rulings worked any cognizable harm [on the defendant], .... [i]t necessarily follows that the cumulative error doctrine finds no foothold." United States v. Sampson, 486 F.3d 13, 51 (1st Cir. 2007). In the Fourth Circuit, the cumulative error doctrine is not generally recognized because "legitimate cumulative-error analysis evaluates only the effect of matters actually determined to be constitutional error, not the cumulative effect of all of counsel's actions deemed deficient." Fisher v. Angelone, 163 F.3d 835, 852 n. 9 (4th Cir. 1998); see also Arnold v. Evatt, 113 F.3d 1352, 1364 (4th Cir. 1997); Higgs v. United States, 711 F.Supp.2d 479, 552 (D. Md. 2010) (in the context of collateral review, review based on the cumulative effect of errors is available only where individual constitutional errors are found).

In declining Petitioner's cumulative error claim, the post-conviction court found that,

ECF 1, Ex. 1, pp. 24-25.

The Petitioner does not demonstrate the state court's adjudication "was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States," or "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). For this reason, the claim provides no grounds for federal habeas corpus relief.

In summarizing Petitioner's ineffective assistance of counsel claims, even assuming that defense counsel=s alleged failures were unreasonable, Petitioner has failed to offer sufficient evidence that but for counsel=s alleged error, the outcome of her trial would have been different. Having examined the post-conviction court=s rulings and having independently examined the record, this Court is satisfied that applying the Strickland standard to the instant allegations of trial counsel=s allegedly deficient performance, Petitioner has not demonstrated the prejudice necessary to establish counsel's ineffectiveness. See 28 U.S.C. § 2254(d); see Stamper v. Muncie, 944 F.2d 170, 178 (4th Cir. 1991) (challenge to counsel=s trial decisions and/or tactics amounted to no more than "Monday morning quarter-backing."). Further, as previously noted, Petitioner has failed to show that the post-conviction court's application of Strickland to the facts of her case was unreasonable. Harrington 131 U.S. at 785. Accordingly, Petitioner=s claims of ineffective assistance of counsel are denied.

II. BREACH OF THE MOU

The Court of Appeals thoroughly considered and rejected Petitioner's claim that the state breached its MOU, finding as follows:

ECF No. 9, Ex. 16, pp. 18-24.

The appellate court's determination that Petitioner breached the MOU by providing reliable inculpatory statements is supported by the record. ECF No. 9, Ex. 16, pp. 18-24. The State was not required to adhere to the agreement after Petitioner provided the inculpatory statements. The appellate court's rejection of Petitioner's claim is supported by the record and does not involve an unreasonable application of clearly established federal law. As such, the decision will not be disturbed.

III. CONFLICTING THEORIES OF THE CASE

Petitioner maintains that, in violation of her right to due process, the State took materially different positions during her trial and that of her husband. ECF No. 1. Petitioner has not provided specific arguments, acknowledging that this Court rejected an identical claim raised by Benjamin Sifrit. See Sifrit v. Rowley, RDB-08-2327 (D. Md. 2008). The Maryland Court of Appeals rejected Petitioner's claim regarding inconsistence prosecutions finding as follows:

ECF No. 9, Exs. 16 & 17.

"A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955). Likewise, prosecutors are held to a high standard of fairness. See Berger v. United States, 295 U.S. 78, 88 (1935) ("The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."). The Court finds no prejudicial misconduct on the part of the prosecutor that unlawfully burdened Petitioner's rights and "so infected the trial with unfairness as to make the resulting conviction a denial of due process." See Darden v. Wainwright, 477 U.S. 168, 180-81 (1986); United States v. Caro, 597 F.3d 608, 624 (4th Cir. 2010). In the Fourth Circuit, in order to reverse a conviction based upon prosecutorial misconduct, "the defendant must show (1) `that the prosecutor's remarks or conduct were improper' and (2) `that such remarks or conduct prejudicially affected his substantial rights so as to deprive him of a fair trial.'" Caro, 597 F.3d at 624-25.

As discussed thoroughly by the Maryland Court of Appeals, federal courts in applying due process standards to claims of inconsistent prosecutions have found that there are situations where the prosecution is prohibited from asserting inconsistent positions in separate criminal proceedings, based on the defendant's right to due process of law. However, "[t]o violate due process, an inconsistency must exist at the core of the prosecutor's cases against defendants for the same crime." Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir. 2000). No such inconsistency exists in the present case. As this Court previously has noted:

See Sifrit v. Rowley, RDB-08-2327 (D. Md. 2008) (ECF No. 13). See Bradshaw v. Stumpf, 5454 U.S. 175, 187 (2005) (Petitioner's assertions of inconsistency in prosecution went to facts immaterial to Petitioner's conviction).4 Assuming, arguendo, that the applicable law is clearly established by the Supreme Court, this Court agrees with the Maryland Court of Appeal's determination that Petitioner was not denied due process. Moreover, after careful review of the record, this Court finds that the Maryland Court of Appeal's findings concerning the facts developed at each trial and the emphasis placed thereon by the prosecution are supported by the record, and are therefore deemed presumptively correct pursuant to 28 U.S.C. § 2254(d) and (e). Accordingly, the determination of the Maryland Court of Appeals shall not be disturbed here.

IV. UNLAWFUL SEARCH OF PETITIONER'S PURSE

Petitioner alleges that the trial court's denial of her motion to suppress the evidence seized from her purse was improper and that it was error for the Court of Appeals to uphold the trial court's decision. ECF No 1, pp. 11-12. Even if a flaw could be found in the state courts' reasoning, federal habeas relief on a Fourth Amendment exclusionary rule claim is unavailable. As observed by the Supreme Court, the purpose of excluding evidence obtained in violation of the Fourth Amendment is to deter misconduct of law enforcement officers conducting the searches. See Stone v. Powell, 428 U.S. 465, 490-492 (1976). Providing an additional avenue for exclusion of evidence through federal habeas relief is unlikely to deter misconduct; thus, the proper focus is on whether or not the Fourth Amendment claim was given full and fair consideration in the state courts below. Id. In the instant case Petitioner received a full hearing on her motion to suppress the evidence where she was represented by counsel. Accordingly, there is no basis presented for federal habeas relief and the Petition must be denied.

Conclusion

The record establishes, and this Court determines, that Petitioner is not entitled to federal habeas relief. There is no basis upon which to find constitutional deficiencies in the state court proceedings, and Petitioner has failed to rebut the presumption of correctness of the findings of fact underlying the rejection of her grounds for post-conviction or appellate relief.

Additionally, a Certificate of Appealability is not warranted at it may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U. S.C. § 2253(c)(2). The Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (citation and internal quotation marks omitted), or that "the issues presented are adequate to deserve encouragement to proceed further," Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because this Court finds that there has been no substantial showing of the denial of a constitutional right, a Certificate of Appealability shall be denied. See 28 U. S.C.§ 2253(c)(2).

Accordingly, the Petition shall be dismissed with prejudice and a Certificate of Appealability shall not issue. A separate Order follows.