UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-8572


ANTHONY L. MARLAR,

                Petitioner - Appellant,

           v.

WARDEN, TYGER RIVER CORRECTIONAL INSTITUTION,

                Respondent - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.      R. Bryan Harwell, District
Judge. (2:08-cv-01874-RBH)


Argued:   March 23, 2011                   Decided:   May 25, 2011


Before GREGORY, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished opinion.        Judge Keenan wrote    the
opinion, in which Judge Gregory and Judge Agee joined.


ARGUED: Thomas Edward Vanderbloemen, GALLIVAN, WHITE & BOYD, PA,
Greenville, South Carolina, for Appellant.      Samuel Creighton
Waters, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellee.      ON BRIEF: Henry D.
McMaster, Attorney General, John W. McIntosh, Chief Deputy
Attorney General, Donald J. Zelenka, Assistant Deputy Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
KEENAN, Circuit Judge:

        Anthony L. Marlar appeals from the district court’s award

of summary judgment in favor of the Warden of the Tyger River

Correctional Institution (the State) on Marlar’s petition for a

writ of habeas corpus (the petition).                     The district court did

not reach the merits of the petition, in which Marlar alleged

that     his     trial     counsel        provided       ineffective        assistance.

Instead, the district court concluded that Marlar’s claim was

not reviewable in a federal habeas corpus petition, because the

South    Carolina      Supreme     Court    had   held    that     Marlar    failed    to

preserve    this       argument    for    appellate      review.      See    Marlar    v.

Warden, Tyger River Correctional Inst., No. 2:08-cv-1874, 

, at *2 (D.S.C. Dec. 4, 2008) (citing Marlar v. South

Carolina,      

,    267    (S.C.    2007)).      We     issued   a

certificate       of    appealability       to     address    Marlar’s       claim     of

ineffective assistance of counsel.

        Based on our holding in Bostick v. Stevenson, 

(4th    Cir.    2009),     issued    after      the   district      court     dismissed

Marlar’s       petition,    we     hold    that    Marlar’s      petition      alleging

ineffective assistance of counsel is not procedurally barred,

and we therefore consider the merits of Marlar’s petition.                             We

affirm the district court’s award of summary judgment in favor

of the State on a different ground than cited by the district



                                            2
court, namely, that Marlar did not suffer prejudice as a result

of his trial counsel’s allegedly deficient performance.



                                        I.

     In 1997, Marlar was convicted by a jury in Anderson County,

South Carolina, of criminal sexual conduct in the first degree

and burglary in the first degree, based on a burglary and a rape

that occurred in 1993.       Marlar received consecutive sentences of

12 and 30 years, respectively, for those convictions.

     The evidence at Marlar’s trial established that in February

1993, two male individuals (the assailants) entered the victim’s

residence around 3:30 a.m.             Both the assailants wore stockings

over their heads, and the victim was not able to observe the

faces of either of the two men during the events that followed.

     After the assailants entered the victim’s residence, they

encountered the victim, who was in her bedroom along with one of

her two young children.          The victim testified that the shorter

assailant stated to his taller companion, “Tony, get her out of

here,”   in     reference   to   the    victim’s   daughter.      The   taller

assailant then exclaimed, “Oh, shit,” apparently upon realizing

that his first name was spoken by his accomplice.

     Once the child was removed from the bedroom, the two men

took turns sexually assaulting the victim, with each individual

engaging   in    nonconsensual    sexual     intercourse   with   the   victim

                                         3
while   holding         a    large    knife       against        her       throat.           After   the

assailants ceased having intercourse with the victim, the taller

assailant retrieved a rag from the victim’s bathroom, wet the

rag, and then “stuck his hand up inside of [the victim’s vagina]

wiping [her] out and wiping the bed.”

      At    some    point       during       the      course          of    these       events,      the

assailants disconnected the telephone that was located in the

victim’s kitchen.             The assailants did not attempt to disconnect

the only other telephone in the residence, which was located in

the   victim’s      bedroom          but    was     inoperable             for    the     purpose     of

placing outgoing calls.                Upon leaving the residence, the shorter

assailant told the victim that they would kill her children if

she informed anyone about the attack.

      After   a     police       investigation,              a    grand      jury       in    Anderson

County indicted Marlar and Jerry Fields for their participation

in    the   crimes.            Both        Marlar     and        Fields          initially      denied

committing        the       crimes,    and     each      stated            that     the      two     were

together in the early morning hours of the events at issue.

However, after DNA evidence collected from the victim’s person

“matched”     a    sample       of    Fields’         DNA,       Fields      confessed         to    his

participation in the crimes and entered a plea of guilty to the

charges.          Fields       implicated         Marlar         as    his        accomplice,        and

testified against Marlar at his trial.



                                                  4
       The victim provided testimony at Marlar’s trial, in which

she stated that she was “a hundred percent sure” that Marlar was

one of her assailants.                   The victim stated that she knew Marlar

before    her      attack,         and     had   seen    him   on     several     previous

occasions because her roommate’s boyfriend was Marlar’s brother.

The victim testified that Marlar knew from his visits to the

residence that the telephone in the victim’s bedroom could not

be used to place outgoing telephone calls.

       The victim also testified that one of her assailants wore a

baseball jacket with red sleeves, which looked like a jacket

that    she     had     seen       Marlar    wearing      on   a    previous     occasion.

According     to      the    victim,       the   assailant     wearing    the     baseball

jacket had a tall and slim “build,” which the victim stated also

was a characteristic of Marlar’s “build.”                          These attributes, in

addition to the taller assailant being referred to as “Tony” by

his accomplice, led the victim to identify Marlar as one of the

assailants when she reported the crime to the police.

       Additionally, Fields testified that he and Marlar were the

victim’s assailants, stating that they had planned the attack on

the    same     night       that    the     crimes      occurred.       Fields     further

testified that he and Marlar each raped the victim two times,

after which Marlar used a washcloth to “clean” the victim after

the    sexual    assault.            Fields      also    corroborated     the     victim’s



                                                 5
statement that Fields referred to Marlar as “Tony” in front of

the victim, and that Marlar responded, “Oh, shit.”

      The prosecution’s evidence did not include DNA evidence,

such as evidence derived from blood, semen, or hair, linking

Marlar     to    the    crime.         And,        as   noted       above,        because   the

assailants wore stockings over their heads, the victim did not

see the face of either of her assailants.                           She also was unable

to identify either of them by their voices on the night of the

attack.

      As    provided          by   South      Carolina        law,      Marlar’s       counsel

received the benefit of making the final closing argument to the

jury, because he did not present any witnesses or introduce any

evidence during the trial. 1               Accordingly, Marlar’s counsel did

not   introduce        into    evidence    a       report     prepared       by    Agent    John

Barron     of   the    South       Carolina    State        Law    Enforcement        Division

Forensic Sciences Laboratory (SLED).                         This report (the Barron

Report) analyzed two pubic hairs found in a box of evidence

collected       from    the    crime    scene.          The       box   of   evidence       also

contained a bedsheet, pillowcases, a bedspread and pillow sham,

a pair of pants, a black cap, and paper towels.



      1
       Under South Carolina law, “[i]n a criminal prosecution,
where a defendant introduces no testimony, he is entitled to the
final closing argument to the jury.” South Carolina v. Mouzon,

, 921 (S.C. 1997).


                                               6
        Agent Barron concluded in the Barron Report that the pubic

hairs         originated       from     an        unknown      person,     and        were

“microscopically inconsistent” with those of Marlar, Fields, the

victim, or the victim’s boyfriend.                   Additionally, Agent Barron’s

report did not state whether those pubic hairs originated from a

male or a female.

        The jury convicted Marlar of burglary and criminal sexual

conduct.        Following his sentencing, Marlar sought relief from

his convictions in the appellate courts of South Carolina.

        The    South    Carolina      Court   of     Appeals    (Court    of    Appeals)

initially        affirmed      Marlar’s       conviction       on     direct     appeal.

Following this decision, Marlar submitted a pro se petition for

rehearing, citing a statement in the Barron Report that there

were pubic hairs of unknown origin found in the box of evidence

collected by investigators at the crime scene.                           The Court of

Appeals granted Marlar’s petition for rehearing and recalled its

prior opinion, but ultimately affirmed the convictions.                               The

court held that Marlar had not preserved for direct appeal any

issues concerning the conclusions in the Barron Report, because

“no   argument        relating   to    hair       analysis   was    presented    to    the

[trial] court.”

        Marlar thereafter applied for Post-Conviction Relief (PCR)

in    the     trial    court   (the    PCR    court).        Marlar   raised     several

issues in his application, including his contention that he was

                                              7
denied   effective    assistance   of      trial    counsel     because   of   his

counsel’s failure to present the hair evidence discussed in the

Barron Report.       The PCR court held a hearing during which the

court heard testimony from Agent Barron, Marlar, and Marlar’s

trial counsel.

     After the hearing, the PCR court issued an order on October

1, 2003, in which the court denied Marlar’s application.                  In its

order, the PCR court summarily concluded that Marlar’s counsel

did not render ineffective assistance and, in the alternative,

that Marlar did not demonstrate any prejudice from his counsel’s

allegedly deficient performance.           The PCR court failed to state

specific findings of fact or express conclusions of law relating

to each issue presented, as required by S.C. Code § 17-27-80. 2

Marlar   did   not   ask   the   PCR    court      afterwards    to   make     such

findings and conclusions, although he was permitted to do so

under Rule 59(e) of the South Carolina Rules of Civil Procedure.

     A PCR court’s failure to make specific findings of fact and

conclusions of law, if not raised by a petitioner in that court,

ordinarily precludes appellate review of a PCR proceeding by the

state courts of South Carolina.            See Pruitt v. South Carolina,


     2
       This provision of the South Carolina Code states, in
relevant part, that a court adjudicating an application for
post-conviction relief “shall make specific findings of fact,
and state expressly its conclusions of law, relating to each
issue presented.” S.C. Code § 17-27-80.


                                       8


, 128 (S.C. 1992) (per curiam). 3                          Nevertheless,

Marlar appealed the denial of his application for PCR relief to

the   Court     of   Appeals,    which    vacated        the    denial    of    Marlar’s

application.         The Court of Appeals held that the PCR court’s

order     was   inadequate      because       it   did     not     include      specific

findings of fact and conclusions of law.                        See Marlar v. South

Carolina, 

, 771 (S.C. Ct. App.), rev’d 

(S.C. 2007).         The Court of Appeals declined to hold that

Marlar’s appeal was foreclosed by his failure to file a motion

pursuant to Rule 59(e), and concluded that Marlar’s case should

be remanded to the PCR court.            

      The   South     Carolina    Supreme      Court      (the    Court)       granted   a

petition for writ of certiorari to review the judgment of the

Court of Appeals.          The Court reversed the Court of Appeals’

judgment, thereby reinstating the PCR court’s denial of Marlar’s

application for post-conviction relief.                    

(S.C.

2007.)      The Court held that any issues concerning the Barron

Report were not preserved for appeal based on Marlar’s failure

to file a Rule 59(e) motion.             

          The Court stated that

although it had remanded post-conviction applications in certain

      3
       The Court’s opinion in Pruitt explained that “[e]ven after
an order [denying post-conviction relief] is filed, counsel has
an obligation to review the order and file a Rule 59(e) []
motion to alter or amend if the order fails to set forth the
findings and the reasons for those findings as required by [S.C.
Code] § 

.


                                          9
cases to a PCR court to make specific findings of fact and

conclusions of law in the absence of a Rule 59(e) motion, those

cases presented “unique” circumstances that were not present in

Marlar’s case.    

unsuccessful attempts in the South Carolina state

courts to vacate his convictions, Marlar filed a habeas corpus

petition in the district court under 28 U.S.C. § 2254.             In his

petition, Marlar alleged that his trial counsel’s failure to

introduce   the     Barron   Report     into      evidence    constituted

ineffective assistance of counsel. 4

     Upon   consideration    of   the   State’s    motion    for   summary

judgment, a magistrate judge issued a report recommending that

the district court grant the motion.       The district court adopted

the magistrate judge’s report and recommendation, and awarded

judgment in favor of the State, holding that Marlar’s claims of

ineffective assistance of counsel were procedurally barred due

to his failure to file a Rule 59(e) motion asking the PCR court

to make specific findings of fact and conclusions of law.             

, at *2.      The district court explained that because

Marlar had not preserved this issue for appellate review in the

state courts of South Carolina, the claim was not cognizable in



     4
       Marlar raised several other issues in his petition for
habeas corpus, none of which is at issue in this appeal.


                                   10
a petition for habeas corpus filed in federal court. 5                                

(citing Fisher v. Angelone, 

, 844 (4th Cir. 1998)).

Accordingly,        the   district        court     did     not    reach      the     merits    of

Marlar’s petition.

      The    district      court     issued         its    order       dismissing      Marlar’s

petition before we issued our opinion in Bostick v. Stevenson,

(4th Cir. 2009).                       In Bostick, we addressed the

identical procedural issue presented here, namely, whether the

failure to file a Rule 59(e) motion in a South Carolina PCR

proceeding precludes any consideration of habeas corpus relief

in a federal court.

      We    answered      this     question         in     the    negative       in    Bostick,

holding     that    the    failure        to   file       such     a    motion      was   not   a

procedural bar because “Rule 59(e) was not consistently applied

by   the    South    Carolina       courts”       at      the    time    of   Bostick’s        PCR

proceedings     in    

.         Significantly,         our

decision in Bostick referenced the state appellate proceedings

in   Marlar’s      case   as   an    illustration           that       the    South    Carolina


      5
       As stated by the district court, “[i]f a petitioner in
federal court has failed to raise a claim in state court at the
appropriate juncture, and is precluded by state rules from
returning to state court to raise the issue, he has procedurally
bypassed his opportunity for relief in state courts and the
claim will be considered procedurally defaulted.            As a
consequence, the petitioner will be barred from raising the
issue in his federal habeas petition.”    

, at *1
(citing Fisher v. Angelone, 

, 844 (4th Cir. 1998)).


                                               11
courts “did not distinguish, in any principled way, those cases

in which it would apply [Rule 59(e)] from those in which it

would not.”         

       Because Marlar filed his appeal from the district court’s

judgment       while    the    appeal       in   Bostick    was      pending,     we   held

Marlar’s       appeal    in    abeyance      until    after     we    decided     Bostick.

Following our decision in Bostick, we issued a certificate of

appealability in this case under 28 U.S.C. § 2253(c) to resolve

the issue “whether trial counsel was ineffective for failing to

call     [a]    state        investigator        to   testify        about   potentially

exculpatory crime scene hair evidence.”



                                             II.

       We    review     de    novo    a    district     court’s      award   of    summary

judgment in a habeas corpus proceeding.                        

; Frye v. Lee, 

, 902 (4th Cir. 2000).                              In cases

in which a habeas petitioner’s claim has been “adjudicated on

the merits” by a state court, a federal court may not grant

relief      unless     the    state   court      decision     was    “contrary     to,   or

involved       an   unreasonable          application    of,    clearly      established

Federal law, as determined by the Supreme Court of the United

States.”       28 U.S.C. § 2254(d)(1); see 

.

However, when, as in the present case, the state court did not

reach the merits of the petitioner’s claim and instead ruled on

                                              12
procedural grounds, we review the petitioner’s claim de novo.

; Hudson v. Hunt, 

, 895 (4th

Cir. 2000).

                                      A.

     We first address the issue whether Marlar may raise in his

federal habeas petition arguments concerning his trial counsel’s

alleged ineffectiveness, despite Marlar’s failure to file a Rule

59(e) motion in the PCR court requesting that the court make

specific    findings    of    fact   and   express     conclusions     of    law.

Applying our holding in Bostick, we conclude that Marlar may

pursue his ineffective assistance of counsel claim in federal

court, even though the South Carolina appellate courts declined

to reach the merits of his claim.

     As noted above, we held in Bostick that “Rule 59(e) was not

consistently applied by the [South Carolina] courts” at the time

of Bostick’s PCR proceedings in 

.          This

holding    is     squarely    applicable    here     because   Marlar’s      PCR

proceedings occurred in 2003, just a year before Bostick’s PCR

proceedings, and thus also took place during the time period in

which     South    Carolina     courts     applied     Rule    59(e)    in    an

inconsistent      manner.       Therefore,     under     Bostick,      Marlar’s




                                      13
ineffective   assistance       of    counsel      claim   is    not     procedurally

barred from appellate review in the federal courts. 6

                                         B.

     Addressing the merits of his appeal, Marlar argues that his

trial    counsel   was   ineffective        in    failing      to   introduce      into

evidence the Barron Report, or testimony referencing the Barron

Report’s   conclusions,        concerning        the   pubic    hairs      of   unknown

origin found in the box of evidence collected by investigators

at the crime scene.       According to Marlar, these pubic hairs may

have come from one of the victim’s “true” assailants.                            Marlar

contends    that    if   his        trial     counsel     had       developed      this

evidentiary issue, there is a reasonable probability that the

jury would not have convicted him of the sexual assault and

burglary charges.

     In    response,     the     State      argues     that     Marlar’s        counsel

provided    effective    representation           to    Marlar,      and    that    the


     6
       In reaching this conclusion, we also reject the State’s
argument that Marlar is barred from raising his claim because he
did not “specifically object on the ground that the Rule 59(e)
bar was not consistently applied.”    We again note that Bostick
had not been decided at the time that Marlar could have raised
this objection.   We decline to hold Marlar, who was proceeding
pro se at this time, responsible for failing to predict our
Bostick holding years in advance.    Moreover, Marlar cited Rule
59(e) in a motion objecting to the magistrate judge’s report and
recommendation.   We construe this pleading in the light most
favorable to Marlar because he was proceeding pro se, see Haines
v. Kerner, 

, 520 (1972), and we hold that Marlar
adequately preserved this argument for our review.


                                         14
decision not to introduce the evidence from the Barron Report

was a strategic trial decision, which allowed Marlar to preserve

the   right       to    present      the        “last        argument”    during       closing

arguments at his trial.               The State also contends that even if

Marlar’s counsel rendered ineffective assistance in not bringing

the   issue       of    the   unidentified            pubic      hairs    to     the     jury’s

attention, Marlar suffered no prejudice because the value of

that evidence was minimal and overwhelming evidence supported

the jury’s verdict.

      In    deciding          this    issue,            we     apply      well-established

principles of law.             A defendant’s right to counsel under the

Sixth Amendment includes the right to effective assistance of

counsel.      Yarborough v. Gentry, 

, 5 (2003); Roe v.

Flores-Ortega,          

,           476-77     (2000);    Strickland        v.

Washington, 

, 685-86 (1984); Rubin v. Gee, 

, 401 (4th Cir. 2002).              Under this guarantee, a defendant is

entitled to counsel who is reasonably competent and who gives

advice     that    is    within      the    range        of    competence        required   of

attorneys in criminal cases.                    Wiggins v. Smith, 

,

521-23,     (2003);      Kimmelman         v.    Morrison,        

,    384,

(1986); 

; Bell v. Evatt, 

,

427 (4th Cir. 1995).

      To prevail on a claim of ineffective assistance of counsel,

a petitioner must ordinarily satisfy both parts of the two-part

                                                15
test    set    forth   in     Strickland.          

;

Williams v. Taylor, 

, 390 (2000); 

; 

.                    The petitioner first must

show    that   “counsel’s      representation         fell    below       an    objective

standard of reasonableness.”                

-88;

accord 

; 

;

.            In making this determination, the court

considering the habeas corpus petition “must indulge a strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.”                   

; accord 

; Darden v. Wainwright,

, 185-86 (1986); 

.

       If counsel’s performance is found to have been deficient

under the first part of the Strickland test, to obtain relief

the    petitioner      must    also   show     that    “there      is     a    reasonable

probability that, but for counsel’s unprofessional errors, the

result    of    the    proceeding      would       have    been         different.         A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.”           

; accord

; 

; Gray v.

Branker, 

, 234 (4th Cir. 2008).

       A reviewing court, however, is not required to determine

whether   “counsel’s        performance      was    deficient       before      examining

the    prejudice    suffered     by   the    defendant       as    a     result    of   the

                                          16
alleged deficiencies.”           

.            Therefore,

the Supreme Court’s decision in Strickland instructs that “[i]f

it   is   easier     to   dispose   of    an    ineffectiveness     claim   on   the

ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed.”                       Id.; see also

Meyer v. Branker, 

, 369 (4th Cir. 2007) (following

Supreme Court’s instruction in Strickland to proceed directly to

“prejudice”     prong     if    petitioner      cannot    demonstrate    reasonable

probability that outcome of trial would be different but for

counsel’s performance); Buckner v. Polk, 

, 202 (4th

Cir. 2006) (same).

      In addressing Marlar’s claim, as recommended by the Supreme

Court     in    Strickland,       we     move     directly     to   consider     the

“prejudice” prong of the Strickland test.                   Under this prong, we

examine the issue whether there is a “reasonable probability”

that trial counsel’s decision not to place the Barron Report in

evidence,      or    otherwise    address      the   conclusions    drawn   in   the

Barron Report during the trial, “undermine[s] confidence in the

outcome” of the jury’s verdict of guilty.                    

.       As    directed    by   the      Supreme   Court,    we   make    this

determination by considering the totality of the evidence before

the trier of fact.             See 

; see also

.



                                          17
      After reviewing the evidence presented at trial, and the

evidence concerning the Barron Report offered by Marlar in the

PCR court and in the proceedings that followed, we conclude that

Marlar has failed to demonstrate that his defense was prejudiced

by trial counsel’s failure to present evidence concerning the

pubic     hairs    noted    in   the       Barron     Report.       We    reach       this

conclusion        because    there     was       extensive     evidence      at      trial

supporting the jury’s verdict, and the probative value of the

Barron    Report’s       conclusions       regarding     the     hair    evidence       is

limited.

        First, there was very strong evidence of Marlar’s guilt

presented     at    his     trial.         As    described      above,    the     victim

testified that she was “a hundred percent sure” that Marlar was

one of her assailants, even though her assailants used stockings

to mask their faces.          On several occasions prior to the attack,

the victim had met Marlar, becoming familiar with Marlar’s tall

and   slim    “build,”      which    the     victim     testified       resembled      the

“build”      of    the    assailant     who       was   called      “Tony”      by     his

accomplice.        In addition to confirming Fields’ testimony that he

referred to his accomplice as “Tony,” the victim testified that

“Tony” responded, “Oh, shit,” upon hearing his name uttered out

loud by the other assailant.               Further, the victim testified that

she was familiar with a baseball jacket with red sleeves that



                                            18
she previously had observed Marlar wearing, which she identified

as being similar to the jacket worn by “Tony” during the attack.

     The manner in which the assailants carried out their attack

also provided corroborative evidence of Marlar’s guilt.                        Marlar

had been at the victim’s residence prior to the attack and, as

stated    by    the     victim    in    her    testimony,   was    aware    that    the

telephone in the victim’s bedroom could not be used to place

outgoing   calls.         It     is    thus   significant   that   the     assailants

disconnected the telephone in the kitchen, but did not attempt

to disconnect the telephone in the victim’s bedroom where the

rape took place.

     We    also       observe    that     Fields   admitted   his    role     in    the

crimes, identified Marlar as his accomplice, and testified that

he and Marlar agreed to use each other to provide an alibi

regarding their whereabouts on the morning in question.                       Fields

also acknowledged that he inadvertently called Marlar by his

first name, “Tony,” in front of the victim during the attack.

     Additionally, we observe that Detective Jean Sutton of the

Anderson       County    Sheriff’s       Office,   who   interviewed       Marlar    in

connection with the investigation, testified that Marlar told

her that he and Fields were together during the time period in

which the sexual assault took place.                     This testimony had the

dual impact of supplying Marlar’s admission that he was with

Fields during the time period that the crimes occurred, and of

                                              19
corroborating Fields’ testimony that he and Marlar had agreed to

use each other to provide an alibi.

      In contrast to this very strong evidence of Marlar’s guilt,

the probative value of the evidence concerning the pubic hairs

was limited.      As stated above, the pubic hairs at issue were

found in a box that also contained pillowcases, a bedspread and

pillow sham, a bed sheet, a pair of pants, a cap, and paper

towels.   Although the Barron Report excluded Marlar, as well as

Fields, the victim, and the victim’s boyfriend, as the source of

the   pubic   hairs,   the   Barron   Report   did    not     offer   any   other

conclusions regarding the identity of the person or persons who

deposited the pubic hairs.           Notably, the Barron Report was not

probative of the issue whether the hairs originated from a male

or a female.

      There also was no evidence indicating where or when the

pubic hairs at issue were deposited on any item or items that

ultimately     were    placed   in    the   crime     scene     evidence    box.

Significantly, those hairs could have been deposited on any of

the items found in the evidence box.                 Further, there was no

evidence concerning who may have owned or worn some of the items

found in the evidence box, such as the pants and black cap.                   In

short, there is no evidence in the record supporting a physical

or temporal connection between the sexual assault on the victim

and the pubic hair evidence noted in the Barron Report.

                                      20
      Our    conclusion        is       not    altered    by   Marlar’s       additional

argument     that     the    prosecutor         misleadingly    informed       the    jury

during closing arguments that “[t]he defense has been provided

obviously with everything.                You saw this.         Every report, every

SLED report has been provided and obviously you saw it.                              Every

report,     every     SLED        report,      everything.”          Marlar    has     not

contended in his federal habeas proceedings that his counsel’s

failure     to   object      to     these      comments   constituted      ineffective

assistance of counsel.                  Moreover, the prosecutor’s misleading

remarks do not change the fact that the record fails to connect

the hair evidence at issue to a male, to any particular item

collected at the crime scene, or to the time period in which the

sexual assault occurred.

      For these reasons, we conclude that the record does not

demonstrate      that,      but     for   trial     counsel’s    alleged      failures,

there is a reasonable probability that the result of Marlar’s

trial would have been different.                    In sum, the record before us

does not undermine confidence in the outcome of the proceedings.

See   

.      Because     we   reach      this

conclusion,      we    need       not    address    whether    the    performance       of

Marlar’s     trial     counsel          was    deficient.       See     

Accordingly, we affirm the district court’s judgment dismissing

Marlar’s petition for a writ of habeas corpus.

                                                                               AFFIRMED

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