Petition for Writ of Certiorari — Freddie Owens, Petitioner v. Bryan P. Stirling, Director, South Carolina Department of Corrections, et al.
Supreme Court briefJan 15, 2021
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APPENDIX
TABLE OF APPENDICES
Appendix A
Opinion, United States Court of Appeals
for the Fourth Circuit, Owens v. Stirling,
No. 18-8 (July 20, 2020) .............................. App-1
Appendix B
Order, United States Court of Appeals for
the Fourth Circuit, Owens v. Stirling,
No. 18-8 (Aug. 18, 2020) ............................ App-57
Appendix C
Order, United States District Court for
the District of South Carolina, Owens
v. Stirling, No. 0:16-cv-02512-TLW
(May 29, 2018) ........................................... App-58
Appendix D
Medical Clearance for Transfer, South
Carolina Department of Corrections
(July 27, 2006) ......................................... App-169
App-1
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
________________
No. 18-8
________________
FREDDIE OWENS,
v.
Petitioner-Appellant,
BRYAN P. STIRLING, Commissioner, South Carolina
Department of Corrections; WILLIE D. DAVIS, Warden
of Kirkland Correctional Institution,
Respondents-Appellees.
________________
Argued: Dec. 11, 2019
Decided: July 20, 2020
________________
Before WILKINSON, KEENAN, and DIAZ,
Circuit Judges.
________________
OPINION
________________
DIAZ, Circuit Judge:
Freddie Eugene Owens was sentenced to death
three times by a South Carolina jury for the 1997
murder of Irene Graves during an armed robbery of
the Speedway convenience store where she worked.
He appeals the district court’s grant of summary
judgment in favor of the respondent state officials
App-2
Bryan P. Stirling and Willie D. Davis (collectively “the
State”) on his petition for writ of habeas corpus,
brought pursuant to 28 U.S.C. § 2254.
Owens argues that counsel in his third capital
sentencing trial provided ineffective assistance by
failing to thoroughly investigate and present available
mitigating evidence and to object on Confrontation
Clause grounds to the trial court’s admission of state
records summarizing a number of his disciplinary
infractions while incarcerated. He also contends that
counsel in both his third capital sentencing trial and
his initial postconviction proceeding were ineffective
by failing to develop evidence of frontal lobe
abnormalities in his brain through comprehensive
neuroimaging.
The state court rejected Owens’s first two claims
on the merits in 2013 and his third claim, which
Owens didn’t raise in his initial petition, as
procedurally defaulted in 2017. The district court
thereafter dismissed Owens’s § 2254 petition, holding
that the state court reasonably applied clearly
established Supreme Court law in rejecting Owens’s
two exhausted claims under Strickland v.
Washington, 466 U.S. 668 (1984), and that Owens
failed to demonstrate cause under Martinez v. Ryan,
566 U.S. 1 (2012), to excuse the procedural default of
his third Strickland claim.
We agree with the district court on all fronts.
Emphasizing our deferential standard of review in
regard to the exhausted claims, we decline to disturb
the state court’s holdings that counsel thoroughly
investigated and presented Owens’s mitigating
evidence and that the Confrontation Clause didn’t
App-3
apply to a business record not prepared specifically for
use at trial. With respect to the defaulted claim, we
accentuate Martinez’s high procedural bar, which
Owens fails to meet because his underlying claim is
insubstantial. In so concluding, we exercise our
discretion to reconsider an issue that we implicitly
resolved in Owens’s favor by granting his certificate of
appealability. Accordingly, we affirm.
I.
We first sketch the long chain of events giving rise
to this capital habeas action, which encompass a
criminal trial, three sentencing trials, three rounds of
direct appeal, and two rounds of state postconviction
proceedings, in addition to the proceedings in the
district court.
A.
Owens’s conviction for murder, armed robbery,
conspiracy to commit armed robbery, and use of a
firearm in the commission of a violent crime traces
back to October 31, 1997. Early that Halloween
evening, Owens was driving around his hometown of
Greenville, South Carolina with his three codefendants—Andre Golden, Nakeo Vance, and Lester
Young—when the foursome conspired to hold up a
series of local businesses. After “casing” several
options, two of them (sans Owens) robbed the Prestige
Cleaners on Lauren’s Road at around 6:45 p.m. Later
in the evening, all four robbed the Conoco Hot Spot
convenience store on Augusta Road.
After midnight on November 1, the four men
conferred on Owens’s front porch about splitting up
and robbing two more businesses near the intersection
of Lauren’s Road and I-85. One was a Waffle House,
App-4
which was assigned to Vance and Young (but which
they found too crowded to carry out their plan). The
other was the Speedway convenience store, which was
assigned to Owens and Golden.
Security footage from inside the store showed two
men wearing makeshift disguises over their heads—
one a ski mask and the other a pair of panty hose—
entering at around 4:00 a.m. The masked men
accosted Graves (a single mother of three who was
working as many jobs), removed what turned out to be
$37.29 from the register, and led Graves at gunpoint
to the back of the store, where the safe was located.
When Graves couldn’t open the safe because she didn’t
know the combination, the man in the ski mask shot
her in the right side of the head with a .32 caliber
pistol, killing her instantly.
B.
Owens and his companions were indicted the
following October, and the State promptly filed a
notice of intent to seek the death penalty for Graves’s
murder. Owens was tried alone for that crime
beginning on February 8, 1999. Lacking forensic
evidence to connect Owens to the scene, the State’s
case rested largely on witness testimony. Golden (who
had since pleaded guilty) testified to the events
described above, including that Owens was the man in
the ski mask who pulled the trigger. Vance also
testified for the State, adding that Owens took credit
for having “shot that bitch in the head” after hopping
in Vance’s getaway car. J.A. 1329. Owens’s thengirlfriend testified that he had confessed to having
shot the clerk to her, too. Owens also confessed to a
detective and an investigator who had been assigned
App-5
to the case and who likewise testified for the State. On
this evidence, a jury returned a guilty verdict on all
counts on February 15.
The sentencing phase of Owens’s trial began two
days later. This phase was separate from the guilt
phase pursuant to South Carolina law, which provides
that “the court shall conduct a separate sentencing
proceeding . . . upon [the] conviction or adjudication of
guilt of a defendant of murder” in all cases where “the
State seeks the death penalty.” S.C. Code Ann. § 16-320(B). If the sentencing jury (or the judge in non-jury
cases) unanimously finds at least one statutory
aggravating circumstance beyond a reasonable doubt
and recommends that a sentence of death be imposed,
“the trial judge shall sentence the defendant to death.”
Id.
§ 16-3-20(C).
The
statutory
aggravating
circumstances include, as relevant here, that the
murder was committed during an armed robbery or
during an armed larceny. See id. § 16-3-20(C)(a)(1)(e),
(f). The statute also sets forth a nonexclusive list of
mitigating circumstances that the jury (or judge) must
be allowed to consider in reaching a sentencing
verdict. See id. § 16-3-20(C)(b).
On the morning of trial, defense counsel notified
the court that they had been served with a
Supplemental Notice of Aggravation the previous
afternoon, which indicated the State’s intent to
introduce—as
evidence
of
Owens’s
future
dangerousness
and
inability
to
adapt
to
incarceration—a statement Owens made that
morning confessing to the murder of a fellow inmate
named Christopher Lee. Defense counsel moved for a
brief continuance to investigate the circumstances of
App-6
the confession, but the court denied the motion. The
sentencing hearing began, evidence of Lee’s murder
was introduced, and the jury returned a unanimous
verdict
finding
the
statutory
aggravating
circumstance of murder while in the commission of
armed robbery and recommending that Owens be
sentenced to death.
On appeal, the Supreme Court of South Carolina
affirmed Owens’s conviction but vacated his capital
sentence and remanded for resentencing, finding that
the trial court had abused its discretion in refusing to
grant a continuance. State v. Owens, 552 S.E.2d 745,
759 (S.C. 2001). The high court reasoned that in light
of “the capital nature of the proceeding” and “the
timing of [Owens’s] statement” regarding Lee’s death,
“due process necessitated a brief . . . continuance to
allow defense counsel the opportunity to interview the
inmates and personnel at the detention center.” Id.
C.
Owens elected a bench trial for his second capital
sentencing proceeding. The trial court sentenced
Owens to death anew, but South Carolina’s high court
again vacated the sentence and remanded for another
resentencing. See State v. Owens, 607 S.E.2d 78, 80
(S.C. 2004). This time, the Supreme Court found that
Owens’s waiver of his right to a jury trial wasn’t
voluntary under South Carolina law because the trial
court had impermissibly injected its personal opinion
into Owens’s decision. Id. at 79-80.
D.
Owens’s third capital sentencing trial forms the
basis of the ineffective-assistance claims raised in his
§ 2254 petition. Owens was represented in that
App-7
proceeding by Everett P. Godfrey, Jr. and Kenneth C.
Gibson (collectively “Sentencing Counsel”), who were
appointed on February 2, 2006, for a trial scheduled to
begin on October 2. Godfrey took immediate
responsibility for Owens’s mitigating evidence, while
Gibson took charge of the guilt- or crime-related
evidence. Closer to trial, once they realized that there
was “a whole lot more” mitigating evidence than guiltrelated evidence to cover, Gibson took on secondary
responsibility for presenting Owens’s mitigation case.
J.A. 2095.
Counsel spent much of the first six months of their
appointment on preliminary tasks, such as performing
legal research, reviewing the case files from Owens’s
previous trials and lawyers, and, closer to summer,
performing general trial preparation. They also twice
visited Owens at Lieber Correctional Institute,
outside of Charleston, and Godfrey visited Owens a
third time in early October, after the trial had been
pushed back.
In mid-August, Godfrey began to assemble a team
of specialists to help investigate and present Owens’s
mitigating evidence. The team, which came together
by September, consisted of five members: clinical
social worker Marjorie Hammock, neuropsychologist
Dr. Tora Brawley, forensic psychiatrist Dr. Donna
Schwartz-Watts, and mitigation investigators Paige
Tarr and Carolyn Graham.
The centerpiece of Owens’s mitigation case,
Hammock had testified in each of his previous
sentencing trials; Godfrey selected her not only
because she “knew the case” and “knew the facts,” J.A.
2195, but because Owens’s previous sentencing
App-8
counsel “was very happy with her” presentation, J.A.
2157. Hammock’s role was to “give the jury an
understanding . . . of [the] things that had gone on” in
Owens’s life, especially with respect to his troubled
“family background,” that “led up to” his offense
conduct. J.A. 2102. Tarr and Graham served as
Hammock’s boots on the ground, “go[ing] out” to “find
witnesses, interview witnesses, [and] identify
issues . . . that . . . might mitigate the circumstances”
of Owens’s conviction. J.A. 2108.
As for Dr. Schwartz-Watts, Godfrey sought her
out because they had worked together on numerous
cases in the past, and he liked the work she had done
in them. The two discussed at length the need to bring
on a neuropsychologist, and Dr. Schwartz-Watts
recommended Dr. Brawley, whom she knew from
previous cases as well.
Like Godfrey, Dr. Schwartz-Watts knew that the
role of neuropsychologist had been fulfilled in the
previous sentencing trial by Dr. James Evans, who
had evaluated Owens by means of a Quantitative
Electroencephalogram (or “qEEG” for short)—a
diagnostic tool that analyzes behavioral-cognitive
function by measuring the brain’s electrical activity—
and testified that Owens has “mild brain dysfunction”
in his frontal lobe. J.A. 76. But Dr. Schwartz-Watts
preferred Dr. Brawley’s more “conservative” approach,
which she found more “reliable” than Dr. Evans’s. J.A.
2382.
Godfrey agreed that Dr. Evans’s use of a qEEG to
assess Owens’s cognitive state—which had to be sent
“out west, like to California,” for diagnosis—”would
[not] play in front of a local jury,” and that it would be
App-9
prudent to take a more cautious approach. J.A. 2196.
Accordingly, when Dr. Brawley performed her
neuropsychological evaluation of Owens on September
12, her “battery” of tests, J.A. 2404, didn’t include a
qEEG, which she too found to be “controversial” and
“experimental,” J.A. 2402.
For her part, Dr. Schwartz-Watts met with Owens
three times before trial. These interviews taught her
that Owens had witnessed and experienced “a lot of
abuse” over the years, though Owens denied having
ever been sexually abused. J.A. 2383. Dr. SchwartzWatts also learned that Owens was “receiving
treatment for a presumed bipolar disorder” and taking
“powerful psychiatric medications,” including an
anticonvulsant called Depakote, while incarcerated at
Lieber. J.A. 2440. Because “this new evidence” meant
that “some of the mitigation that had been completed
in prior trials [would] need to be revamped,” she urged
Godfrey to request a continuance. Id. He did so, and
on October 2 (the date for which the trial was
originally scheduled), the trial court delayed the trial
by five weeks, rescheduling for November 6.
Owens’s third capital sentencing trial took place
from Monday, November 6 to Saturday, November 11,
2006. The State called a dozen witnesses, including
various medical experts, several Greenville county
sheriffs and special investigators, Nakeo Vance,
Owens’s girlfriend at the time of Graves’s murder, and
a state official from Lieber. As in Owens’s previous
sentencing trials, the State’s evidence touched equally
on his offense conduct as his future dangerousness
and inability to adapt to prison.
App-10
Among other things, evidence of the latter
included testimony about Owens’s killing of his fellow
inmate on the eve of his first sentencing trial—the
“elephant in the room,” as Godfrey later referred to it.
J.A. 2147. It also included an official record describing
twenty-eight of the numerous disciplinary infractions
that Owens had received while in the custody of the
South
Carolina
Department
of
Corrections
(SCDOC),which had been prepared by officials “under
a duty to report” the incidents pursuant to state law.
J.A. 1530.
For the defense, Godfrey’s opening remarks stated
that the “evidence in mitigation” would show “how it
is that Freddie grew up,” especially with regard to “the
violence that he ha[d] lived through his entire life,”
such that the jury would “come to know him as a
person.” J.A. 1194. Godfrey highlighted that Owens
suffered from “an impulse control disorder,” J.A. 1196,
but that “within th[e] past year” he had begun “asking
for help . . . . to control his actions,” J.A. 1194. And
while Godfrey warned the jury that the mitigating
evidence often wasn’t “pretty,” he asserted that
Owens’s difficult upbringing, together with his
underlying and long-untreated disorders, revealed
that life was “the proper sentence.” J.A. 1196.
Counsel called five witnesses, starting with
Hammock. While her presentation was more succinct
than in Owens’s previous sentencing hearings,
Hammock covered her psychosocial assessment in
similar terms. Hammock testified that she had
interviewed Owens, his mother, his sisters, one of his
brothers, his stepfather, staff from the South Carolina
Department of Juvenile Justice (SCDJJ) when he was
App-11
incarcerated there, various medical experts, and
others yet; and had reviewed many records.
Hammock explained that Owens was born to an
eighteen-year-old single mother “who had very limited
resources” and “difficulty caring for her family,” J.A.
1552; that there was “a great deal of violence” in both
his family—largely emanating from his father and
stepfather, and often directed at his mother, his
siblings, and himself—and neighborhood alike, id.;
that he and his siblings were put in foster care when
he was four due to “abuse and neglect,” which didn’t
cease after his mother regained custody, id.; that there
was “a considerable amount” of incarceration, mental
illness, and substance abuse in his family, J.A. 1554;
and that he suffered from “significant learning
disabilities” and “educational deficits,” J.A. 1553. She
also stated that Owens was taught to fight “at a very
early age” and developed “the kind of coping strategies
that made him always on the defensive.” J.A. 1553-54.
She concluded by remarking that such troubled
upbringings have been shown to increase the
likelihood that a child will later engage in violent
crime.
Counsel’s second witness was Fain Cones Maag,
Owens’s third-grade teacher. She testified about
Owens’s “sparse”
and violence-ridden home
environment as well, J.A. 1562, relating that bullies
would often chase him around the neighborhood and
that, in response, his stepfather would lock him out in
order to teach him that he “had to fight,” J.A. 1563.
Maag also provided more detail about Owens’s
“learning deficiencies,” including his “tremendous
App-12
trouble” learning to read, J.A. 1562, while adding that
Owens “had some real gifts,” J.A. 1564.
Third up was Dr. Brawley. She testified about the
“battery” of neuropsychological tests she had
conducted to assess “how the different areas of
[Owens’s] brain [were] functioning” and the
conclusions she had drawn from them. J.A. 1573. In
this respect, Dr. Brawley testified that Owens had “a
history of lifelong problems with brain function” and
related “psychiatric issues,” such as impulsivity,
irritability, and depression; “some select areas of
deficit,” particularly in the verbal areas of the brain;
and a history of head injury. J.A. 1581. But on crossexamination, Dr. Brawley clarified that, in her
professional opinion, Owens’s cognitive defects didn’t
“rise to the level of . . . diagnosing him with . . . any
kind of brain syndrome” or “mental illness.” J.A. 158283. She also stated that she didn’t “put a whole lot of
clinical significance” on Owens’s head injuries. J.A.
1582.
Dr. Brawley was followed by Dr. Thomas Cobb, a
forensic psychiatrist with SCDOC who had been
treating Owens at Lieber since August 2005. Dr. Cobb
had diagnosed Owens with an unspecified anxiety
disorder; an unspecified impulse control disorder,
meaning “an inability to not react to something [in a
way] that may cause . . . harm” to oneself or another;
and Antisocial Personality Disorder, which he
attributed to Owens’s stunted emotional development,
and to which he attributed Owens’s impulsivity and
irritability. J.A. 1593. Dr. Cobb explained that he had
prescribed
Owens
the
powerful
psychiatric
medications that Dr. Schwartz-Watts had noticed in
App-13
order to treat these conditions, including Depakote,
which he was using in combination with Risperdal (a
drug commonly used to treat disorders like bipolarism
and schizophrenia) to stabilize Owens’s mood and give
his brain “time to think.” J.A. 1595. He concluded by
opining that these and other medications had worked
some improvement in Owens’s behavior.
Counsel’s fifth and final witness was Dr.
Schwartz-Watts. She opined that Owens’s “long
history of illegal behaviors” was rooted in his welldocumented impulsivity. And because Owens had “a
history of head injury” as well, Dr. Schwartz-Watts
considered whether his impulsivity was the result of
brain damage. But instead of brain damage, she
concluded that Owens’s impulsivity was the product of
three disorders: Attention Deficit Disorder, Dysthymic
Disorder (i.e., chronic depression), and Antisocial
Personality Disorder (in agreement with Dr. Cobb).
Dr. Schwartz-Watts also addressed how the
circumstances of Owens’s “developmental history” as
a young child, including his experiences with abuse,
neglect, and violence, had contributed to these
disorders, and therefore to Owens’s impulsiveness and
proclivity to violence. Id. Finally, Dr. Schwartz-Watts
echoed Dr. Cobb in opining that Owens had improved
since taking the medications that Dr. Cobb had
prescribed, and could continue to receive those
medications while in prison.
Owens’s third capital sentencing trial wrapped up
shortly after Dr. Schwartz-Watts’s testimony, and
that same day, the jury returned a verdict
unanimously finding both of the statutory aggravating
circumstances that the State had charged—”[t]hat the
App-14
murder was committed while in the commission” both
“of robbery while armed with a deadly weapon” and “of
larceny with the use of a deadly weapon”—and
recommending that Owens be sentenced to death. J.A.
1758, 1768, 1771; cf. S.C. Code Ann. § 16-320(C)(a)(1)(e), (f). The trial court entered judgment
accordingly.
This time on direct appeal, the Supreme Court of
South Carolina affirmed Owens’s capital sentence.
State v. Owens, 664 S.E.2d 80, 82 (S.C. 2008). The
United States Supreme Court then denied Owens’s
petition for writ of certiorari. Owens v. South
Carolina, 555 U.S. 1141 (2009).
E.
Owens then filed a pro se petition for postconviction relief in state court. Keir M. Weyble (of
Cornell Law School), who had worked on Owens’s
petition for certiorari, and Emily C. Paavola (then a
fellow of Cornell’s Death Penalty Project) (collectively
“Initial Postconviction Counsel”) were appointed to
represent Owens, and ultimately filed two amended
petitions on his behalf. The operative petition asserted
over a dozen separate grounds of ineffective
assistance, several of which have been consolidated
into the first two claims raised in Owens’s § 2254
petition.
The state postconviction court held an evidentiary
hearing on Owens’s petition. All but one of the
witnesses called at the hearing had participated in one
or more of Owens’s sentencing trials, including
Godfrey and Gibson, Drs. Schwartz-Watts and
Brawley, Owens’s previous counsel, and a mitigation
App-15
investigator named Drucy Glass, who had worked on
the first two trials.
The other witness, called by Initial Postconviction
Counsel, was Dr. James Garbarino, an expert in child
development. Dr. Garbarino, who had interviewed
Owens for four hours, testified about children’s
vulnerability to trauma and other “risk factors” that
have been shown to have a negative impact on a child’s
development and to increase the likelihood that a child
will later engage in violent crime. J.A. 2256. He opined
that Owens “had almost all of the risk factors that [he
had] ever read about.” J.A. 2267. He also related that
Owens had revealed during their interview that he
had been sexually abused several times as a child,
including during his time in SCDJJ custody, though
his official records didn’t document the abuse.
The state court denied Owens’s petition, for
reasons that we discuss below (to the extent relevant
here). See Owens v. State, No. 2009-CP-23-0741 (S.C.
Com. Pl. Feb. 13, 2013). The Supreme Court of South
Carolina denied Owens’s petition for writ of certiorari,
and Owens declined to seek a writ of certiorari from
the United States Supreme Court.
F.
Owens then commenced this federal habeas
action by moving in the district court to stay his
execution and appoint new counsel. The district court
granted the motions, and Owens’s new counsel
(“Federal Habeas Counsel”) filed the operative
petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.
Federal Habeas Counsel also filed a second
petition for postconviction relief in state court, raising
App-16
eight new ineffective-assistance claims, including the
defaulted claim raised in this appeal. While these new
claims would likely be (and later were) denied on
procedural grounds due to Owens’s failure to raise
them in his initial postconviction petition, Owens
could (and does) attempt to excuse the procedural
default in federal court by showing cause and
prejudice under Martinez and Coleman v. Thompson,
501 U.S. 722 (1991).
In further pursuit of Owens’s neuroimaging claim,
Federal Habeas Counsel obtained a comprehensive
neurobehavioral assessment of his brain from Dr.
Ruben C. Gur, an expert in brain behavior. Dr. Gur’s
assessment comprised structural and functional
neuroimaging using both Magnetic Resonance
Imaging (MRI) and Positron Emission Tomography
(PET) techniques.
Dr. Gur concluded that the neuroimaging showed
“abnormalities indicating brain damage” in regions of
the brain “important for regulating emotions and
behavior,” J.A. 4182, suggesting that Owens’s frontal
lobe was “unable to do its job and act as the brakes on
the primitive emotional impulses” emanating from his
“hyper-activated” amygdala, J.A. 4183. Dr. Gur’s
assessment was in turn reviewed by Dr. Stacey Wood,
a forensic neuropsychologist, whose independent
review and evaluation concurred that Owens “has
significant brain impairment” in his frontal lobe, J.A.
4200, resulting in “neuropsychological deficits related
to . . . executive functioning,” J.A. 4201.
After receiving the results of Drs. Gur’s and
Wood’s assessments, Federal Habeas Counsel filed an
amended § 2254 petition in the district court, adding
App-17
(among others) the defaulted neuroimaging claim.
They then moved to stay the § 2254 action pending the
state court’s resolution of Owens’s second petition,
which the district court granted. The state court
ultimately denied Owens’s second petition as
procedurally defaulted, and Owens didn’t appeal that
denial.
G.
Owens thereafter resumed proceedings in the
district court, where his operative § 2254 petition
asserted five exhausted grounds and seven
unexhausted grounds for relief. The State filed a
(second) motion for summary judgment, which was
initially considered by a magistrate judge. The
magistrate
judge
issued
a
Report
and
Recommendation (“R&R”) advising that the district
court grant summary judgment in favor of the State
and deny Owens’s petition and related motions for an
evidentiary hearing. Owens v. Stirling, No. 0:16-CV2512-TLW-PJG, 2018 WL 3104276, at *1 (D.S.C. Jan.
12, 2018). Owens objected to the R&R, but the district
court adopted it in full. Owens v. Stirling, No. 0:16-CV02512-TLW, 2018 WL 2410641, at *9, *45 (D.S.C. May
29, 2018). The court then denied Owens’s motion to
alter or amend the judgment. Owens v. Stirling, No.
0:16-CV-02512-TLW, 2018 WL 5720445, at *3 (D.S.C.
Nov. 1, 2018).
H.
We docketed Owens’s case on November 16, 2018.
On November 27, we granted Owens’s motion to
substitute counsel. Counsel thereafter sought a
certificate of appealability (“COA”), pursuant to 28
U.S.C. § 2253(c)(1), on the three claims raised here.
App-18
We granted the certificate as requested, indicating
that Owens had “demonstrate[d] ‘a substantial
showing of the denial of a constitutional right’” with
respect to each claim. See Miller-El v. Cockrell, 537
U.S. 322, 327 (2003) (quoting 28 U.S.C. § 2253(c)(1)).
This appeal followed.
II.
Owens’s § 2254 petition presents two exhausted
claims of ineffective assistance, meaning that the
state court rejected them on the merits. First, he
claims that Sentencing Counsel provided ineffective
assistance by failing to adequately investigate and
present available mitigating evidence about his
upbringing, family background, and general social
history. Second, he claims that counsel was ineffective
by failing to raise a readily viable Confrontation
Clause objection to the trial court’s admission of the
State’s record summarizing twenty-eight of his
disciplinary infractions while in custody.
We consider these claims in turn, “reviewing de
novo the district court’s denial of [Owens’s] petition”
with respect to each. Gray v. Zook, 806 F.3d 783, 790
(4th Cir. 2015). But we review the state postconviction
court’s denial of these claims only to the extent of
determining whether it involved an unreasonable
application of the Supreme Court’s clearly established
precedent. And we conclude that it didn’t.
A.
Our standard of review derives from the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), which circumscribes a federal court’s ability
to issue a writ of habeas corpus “on behalf of a person
in custody pursuant to the judgment of a State court.”
App-19
28 U.S.C. § 2254(d). Under AEDPA, a federal court
may not grant habeas relief on a claim that the state
postconviction court rejected on the merits unless that
court’s determination “was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding,” id.
§ 2254(d)(2), or “was contrary to, or involved an
unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of
the United States,” id. § 2254(d)(1).
Owens relies on § 2254(d)(1), contending that the
state court’s decision involved an unreasonable
application of clearly established federal law under
the Supreme Court’s Strickland line of cases. A state
court’s decision involves an unreasonable application
of such clearly established law when the court
“identifies the correct governing legal rule from th[e
Supreme] Court’s cases but unreasonably applies it to
the facts of the particular state prisoner’s case.”
Williams v. Taylor, 529 U.S. 362, 407 (2000)
(O’Connor, J., delivering the opinion of the Court with
respect to Part II).
By “clearly established,” § 2254(d)(1) “refers to the
holdings, as opposed to the dicta, of th[e Supreme]
Court’s decisions as of the time of the relevant statecourt decision.” Id. at 412. And to be “unreasonable,”
the state court’s application of that law must be
“objectively unreasonable,” not simply incorrect.
Barnes v. Joyner, 751 F.3d 229, 238-39 (4th Cir. 2014);
see also Williams, 529 U.S. at 412 (“[A]n unreasonable
application of federal law is different from an incorrect
or erroneous application of federal law.”). Otherwise
stated, “[a] state court’s determination that a claim
App-20
lacks merit precludes federal habeas relief so long as
fairminded jurists could disagree on the correctness of
the state court’s decision.” Harrington v. Richter, 562
U.S. 86, 101 (2011) (cleaned up).
In enacting AEPDA, Congress thus recognized
that federal courts “owe state tribunals significant
deference” with respect to their determination that a
state prisoner isn’t entitled to habeas relief. Bennett v.
Stirling, 842 F.3d 319, 323 (4th Cir. 2016). Indeed,
AEDPA “reflects the view that habeas corpus is a
guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary
error correction.” Harrington, 562 U.S. at 102 (cleaned
up). While our standard of review by no means
“preclude[s] relief” or “impl[ies] abandonment or
abdication of judicial review,” Miller-El, 537 U.S. at
340, it does mean that we may not “second-guess the
reasonable decisions of state courts,” Renico v. Lett,
559 U.S. 766, 779 (2010).
Our deference in this case contains an additional
layer. For where, as here, a state prisoner claims
ineffective assistance of counsel as the basis for
habeas relief, we must review the claim through the
“highly deferential” lens of Strickland as well.
Richardson v. Branker, 668 F.3d 128, 139 (4th Cir.
2012) (cleaned up). AEDPA and Strickland thus
provide “dual and overlapping” lenses of deference,
which we apply “simultaneously rather than
sequentially.” Id. And because “[s]urmounting
Strickland’s high bar is never an easy task,” it is “all
the more difficult” to establish “that a state court’s
application of Strickland was unreasonable . . . under
§ 2254(d).” Morva v. Zook, 821 F.3d 517, 528 (4th Cir.
App-21
2016) (cleaned up). “This double-deference standard
effectively cabins our review” to determining “whether
there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id.
(cleaned up).
To establish ineffective assistance of counsel
under Strickland, a defendant must satisfy two
standards: (1) “that counsel’s performance was
deficient,” and (2) that counsel’s deficient performance
“prejudiced the defense.” 466 U.S. at 687. The first
prong, deficient performance, requires a showing “that
counsel’s representation fell below an objective
standard of reasonableness,” as measured by
“prevailing professional norms” and in light of “all the
circumstances” of the representation. Id. at 688. While
such professional norms may be “reflected in
American Bar Association [ABA] standards and the
like,” such guides are just that—”only guides”—for
determining
what
constitutes
reasonable
representation in a given case, id. at 688, and no fixed
set of rules may “take account of the variety of
circumstances faced by defense counsel,” id. at 688-89.
In assessing counsel’s performance, our scrutiny
“must be highly deferential.” Id. at 689. Because “[i]t
is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse
sentence,” and “all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission . . . was
unreasonable,” Strickland cautions that “[a] fair
assessment of attorney performance requires that
every effort be made to eliminate the distorting effects
of hindsight . . . and to evaluate the conduct from
App-22
counsel’s perspective at the time.” Id. We must
therefore “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance.” Id. In all, the “critical
question”
is whether counsel’s
performance
“amounted to incompetence under prevailing
professional norms, not whether it deviated from best
practices.” Winston v. Pearson, 683 F.3d 489, 504 (4th
Cir. 2012) (cleaned up).
Once a defendant has established that counsel’s
performance was deficient, he must then prove that
counsel’s deficient performance prejudiced his defense
under Strickland’s second prong. In the effective
assistance context, prejudice means “a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. A reasonable
probability, in turn, is one “sufficient to undermine
confidence in the outcome.” Id. In the capital
sentencing context, “the question is whether there is a
reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance
of aggravating and mitigating circumstances did not
warrant death.” Id. at 695.
With these dually deferential standards of review
firmly in mind, we turn now to consider Owens’s claim
of ineffective assistance.
B.
Owens contends that Sentencing Counsel was
ineffective by failing to adequately investigate and
present available mitigating evidence about his life
history. Most of his arguments here focus on counsel’s
allegedly “less than complete investigation,” such that
App-23
their choices about which mitigating evidence to
present could not have been the products of
“reasonable professional judgments.” See id. at 691.
Together with evidence that counsel allegedly
possessed but didn’t present, he asserts that a
reasonably complete “mitigation story” would have
“neutralized the State’s aggravating evidence by
explaining [his] behavior through the lens of his past
experiences.” Pet’r’s Br. 48.
The state postconviction court rejected Owens’s
claim, reasoning that counsel “conducted a thorough
investigation into potential mitigating evidence and
chose to present evidence that [they] thought would
favor Owens at trial.” J.A. 3704. While the court
observed that counsel didn’t discover or present every
iota of available mitigating evidence, it concluded that
they developed “a cogent mitigation case through the
testimony of Hammock, Schwartz-Watts, Cobb,
Brawley, and Maag,” which substantially covered all
of the evidence that Owens claims to have been left
out. J.A. 3707. The court also concluded that any
mitigating evidence that counsel failed to investigate
or present wasn’t prejudicial because the additional
evidence presented in the postconviction proceeding
“would [not] have struck a different balance” between
the total aggravating and mitigating evidence. J.A.
3705 (quoting Gray v. Branker, 529 F.3d 220, 238 (4th
Cir. 2008)).
We think that the state court reasonably applied
the Supreme Court’s holdings in determining that
counsel adequately investigated (and competently
presented) Owens’s mitigating evidence. Of course,
the Court has longed recognized that capital
App-24
sentencing counsel have an “obligation to conduct a
thorough
investigation
of
the
defendant’s
background,” Williams, 529 U.S. at 396, in an effort
“to discover all reasonably available mitigating
evidence,” Wiggins v. Smith, 539 U.S. 510, 524 (2003)
(cleaned up). But the issue turns on how “thorough”
the mitigation investigation must be. And here, the
Court’s cases indicate that the investigation need only
be reasonably thorough. See Strickland, 466 U.S. at
690-91 (equating capital sentencing counsel’s duty of
“thorough investigation” to “a duty to make
reasonable investigations” and noting that “[i]n any
ineffectiveness case, a particular decision not to
investigate
must
be
directly
assessed
for
reasonableness in all the circumstances”); cf. Wiggins,
539 U.S. at 533 (“Strickland does not require counsel
to investigate every conceivable line of mitigating
evidence . . . .”).
In Williams, for instance, the Court found (for the
first time in the capital sentencing context) the state
court’s denial of post-conviction relief unreasonable
under § 2254(d)(1) on the ground that counsel had
“failed to conduct” any investigation into the
defendant’s background. See 529 U.S. at 395. There,
counsel overlooked even the most basic available
mitigating
evidence
about
the
defendant’s
“nightmarish childhood,” id., including with respect to
his abusive and neglectful parents, his time in foster
care and the juvenile justice system, his borderline
intellectual disability, and his failure to advance past
sixth grade. Id. at 395-96. Instead, “the sole argument
in mitigation” that counsel advanced was that the
defendant had “turned himself in.” Id. at 398. And that
clearly wasn’t enough.
App-25
The Court reached the same conclusion in
Wiggins, on the basis that capital sentencing counsel
had abandoned their investigation of the defendant’s
background after reviewing just two sources—the
presentence report and certain records from the
Baltimore City Department of Social Services—and
thus failed to discover any evidence of his history of
severe sexual abuse, his diminished mental capacity,
and his frequent periods of homelessness. 539 U.S. at
524-35. Similarly, in Rompilla v. Beard, the Court
found it “obvious” that counsel’s performance “fell
below the level of reasonable performance,” where
they had failed “to look at any part” of the defendant’s
conviction file—”a public document[] readily available
for the asking at the very courthouse where [he] was
to be tried”—despite notice that the state intended to
introduce portions of the file as aggravating evidence.
545 U.S. 374, 383-84 (2005); see also Andrus v. Texas,
--- S. Ct. ----, No. 18-9674, 2020 WL 3146872, at *1
(U.S. June 15, 2020) (per curiam) (finding deficient
performance where counsel “failed even to look for”
evidence of the defendant’s “grim” life history); Porter
v. McCollum, 558 U.S. 30, 40 (2009) (per curiam)
(same where counsel “failed to uncover and present
any evidence of [the defendant’s] mental health or
mental impairment, his family background, or his
military service”).
In Bobby v. Van Hook, by contrast, the Supreme
Court
found
reasonable
the
state
court’s
determination that capital sentencing counsel had
adequately investigated the defendant’s mitigating
evidence under circumstances similar to those present
here. There, the Court emphasized that counsel had
interviewed the defendant’s parents, aunt, and “a
App-26
family friend whom [the defendant] visited
immediately after the crime,” id. at 9; consulted with
two expert witnesses (though not “an independent
mental-health expert,” id. at 6) “more than a month
before trial,” id. at 9; and reviewed the defendant’s
military and medical records, id.
The Court also underscored the evidence that
counsel discovered (and presented at trial) from their
investigation, including that the defendant’s parents
were heavy drinkers and that the defendant himself
“started drinking as a toddler,” id. at 10; that he “grew
up in a combat zone” and “watched his father beat his
mother weekly,” id. (cleaned up); that he “attempted
suicide five times,” id.; and that he suffered from
borderline personality disorder, id. at 11. In light of
such extensive mitigating evidence, the Court
reasoned that counsel’s failure “to find more” wasn’t
clearly deficient. Id. at 11-12.
This court has reached similar conclusions as
well. In Morva, for example, we found reasonable the
state court’s “decision on deficient performance” where
capital sentencing counsel had “hired a mitigation
expert,” interviewed many of the petitioner’s family
members, and presented thirteen witnesses (including
several mental-health experts) who testified about the
defendant’s absent and neglectful parents, his
“nomadic lifestyle and homelessness as a young
adult,” his “ongoing health problems,” and his
“odd . . . beliefs and behavior.” 821 F.3d at 529-30. We
held the same in DeCastro v. Branker, where counsel
had investigated the defendant’s “personal history” by
interviewing the defendant, his mother, and his aunt;
had reviewed his “school and criminal records”; had
App-27
“retained an investigator”; and had obtained a
psychiatric evaluation. 642 F.3d 442, 456 (4th Cir.
2011). And conversely, we’ve gone the other way in
cases where counsel’s investigation was significantly
lacking, such as where counsel altogether “failed to
investigate for mental health evidence.” See Gray, 529
F.3d at 229.
In light of these cases, the state postconviction
court’s conclusion that Sentencing Counsel’s
mitigation investigation was reasonably thorough
doesn’t warrant relief under our dually deferential
standards of review. Indeed, counsel’s efforts to
discover mitigating evidence far exceeded the efforts
made in Williams, Wiggins, Rompilla, and Porter,
more closely resembling (if not exceeding) those made
in Bobby.
Recall that counsel retained two investigators to
help discover Owens’s mitigating evidence, a clinical
social worker to help assemble Owens’s social history,
and two medical experts to help evaluate Owens’s
cognitive functioning. Altogether, this team
interviewed the majority of Owens’s immediate family
members, in addition to others (such as his thirdgrade teacher) who knew him during his formative
years; consulted numerous other experts, including
his treating psychiatrist; and reviewed extensive
family, school, medical, incarceration, and other
records. And it yielded testimony from five witnesses,
who painted a clear picture of Owens’s impoverished,
neglectful, and abusive childhood; his pervasive
exposure to violence, substance abuse, and
incarceration; and his various learning disabilities
and cognitive disorders.
App-28
Moreover, counsel undertook their investigation
with the benefit of two previous trials’ worth of
mitigating evidence to draw from, comprising several
case files and including an array of additional expert
perspectives. In light of all of this, the state court
reasonably determined that “[t]his is not a case in
which the defendant’s attorneys failed to act while
potentially powerful mitigation evidence” was
available, but rather one where their “decision not to
seek more . . . than was already in hand fell within the
range of professionally reasonable judgments.” See
Bobby, 558 U.S. at 11-12 (cleaned up).
We are also mindful that “the more general the
federal rule” in question, “the more leeway state
courts have in reaching outcomes in case-by-case
determinations.” Bennett, 842 F.3d at 322 (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)
(alterations adopted)). Whereas the proper application
of a “specific” legal rule “may be plainly correct or
incorrect” in many cases, the contours of “more
general” rules or standards “must emerge in
application over the course of time,” thereby
demanding “a substantial element of judgment” in
many cases. Yarborough, 541 U.S. at 664. Here, we
think it plain that the Supreme Court’s thoroughness
standard is general enough that state postconviction
courts must use substantial judgment in applying it to
cases where counsel’s investigation is neither clearly
adequate nor clearly inadequate. We are therefore
confident that the state court’s judgment is entitled to
deference in this case.
We reject Owens’s counterarguments. In
particular, Owens complains that his lawyers waited
App-29
too long to begin investigating and delegated too much
of the responsibility to their team members. Yet the
nearly two months that counsel and their team spent
investigating far exceeded the one week at issue in
Williams, see 529 U.S. at 363, and roughly equaled the
amount of time in Bobby, see 558 U.S. at 9-10. And
especially because counsel had the benefit of two
trials’ worth of mitigating evidence to build from, the
amount of time they devoted to additional
investigation was reasonably sufficient.
Nor is this a case in which counsel “abdicated
their responsibility” for investigating Owens’s
mitigating evidence. See Winston, 683 F.3d at 505. As
our cases recognize, capital sentencing counsel “often
must necessarily rely on . . . investigators, experts,
and other members of the defense team to gather
essential evidence.” Winston v. Kelly, 784 F. Supp. 2d
623, 632 (W.D. Va. 2011), aff’d sub nom., Winston v.
Pearson, 683 F.3d 489 (2012). The corollary is that
counsel themselves must “be familiar with readily
available documents,” among other evidence,
“necessary to an understanding of [the defendant’s]
case.” Winston, 683 F.3d at 505 (cleaned up).
That’s precisely what happened here. While
counsel employed a team of specialists to gather
Owens’s available mitigating evidence, they closely
supervised the team’s efforts and familiarized
themselves with the findings. Gibson’s and Godfrey’s
time sheets indicate that they each spent many hours,
especially during the two months before trial,
studying their team members’ files (in addition to the
files from Owens’s previous sentencing trials),
discussing trial strategy with them, and preparing
App-30
them for examination. This case is thus unlike
Winston, on which Owens relies and in which counsel
failed to discover that the defendant had an IQ of 66
because they altogether “neglect[ed] to review” the
school records obtained by their boots on the ground.
See id.
We likewise reject Owens’s complaint that counsel
failed to discover an array of available mitigating
evidence. Though Owens contends that counsel
neglected to obtain the social chronology prepared by
Drucy Glass (a mitigation investigator who had
worked with Hammock) during Owens’s previous
sentencing trial, the record indicates the contrary;
indeed, Hammock’s testimony about Owens’s family
history and time in foster care touched upon many of
the details contained in Glass’s chronology and
accompanying
records.
Owens
similarly
mischaracterizes the record in asserting that counsel
failed to investigate the marginal economic conditions
in which his family survived and the violence that
riddled his neighborhood. To the contrary, counsel
elicited testimony from multiple witnesses about both
of these circumstances, which permeated their
presentation.
The record similarly belies Owens’s contention
that Sentencing Counsel failed to look into the horrific
conditions of confinement during his period of
incarceration at SCDJJ or the sexual abuse he
experienced there. Though (as we discuss below)
counsel declined to have Dr. Schwartz-Watts present
much testimony about Owens’s time in juvenile
detention, it’s clear that she investigated the topic by
interviewing Owens and reviewing his SCDJJ records,
App-31
including mental-health records from his treating
psychiatrist. Dr. Schwartz-Watts and Godfrey were
also both aware of the high-profile class-action lawsuit
over the conditions of confinement during Owens’s
time there, which resulted in a judgment against
SCDJJ. 1 And Godfrey himself went to one of the
facilities not only to discuss the lawsuit with the very
lawyer who filed it, but also to observe the “horrible”
conditions for himself. J.A. 2199.
As to sexual abuse, Drs. Schwartz-Watts and
Brawley alike testified that they “specifically” asked
Owens whether he had ever experienced it, whether at
SCDJJ or elsewhere, J.A. 2402, and Dr. SchwartzWatts also looked for evidence of sexual abuse in
Owens’s records. Yet Owens “denied” having been
sexually abused to each of them, J.A. 2383, and none
of his records, including his SCDJJ records, contained
evidence of such abuse. Counsel can thus hardly be
faulted for not discovering evidence that didn’t come
to light until Owens revealed it during his
postconviction interview with Dr. Garbarino.
Owens fares no better in complaining that his
lawyers failed to consult with appropriate experts.
Specifically, Owens suggests that counsel should have
retained an expert like Dr. Garbarino to testify about
1 The district court ultimately held that SCDJJ’s facilities were
marred by numerous “constitutional and statutory deficiencies”
and ordered the state to adopt a remedial plan. Alexander S. ex
rel. Bowers v. Boyd, 876 F. Supp. 773, 804 (D.S.C. 1995), as
modified on denial of recons. (Feb. 17, 1995); cf. Davis v. Boyd,
No. 96-2540, 1997 WL 355626, at *1 (4th Cir. June 27, 1997) (per
curiam) (discussing some of the remedial measures that the
district court approved on June 28, 1995).
App-32
the relation between Owens’s traumatic childhood and
his violent behavior. But the Court has never held that
counsel is obligated to consult experts, let alone a
particular kind of expert, in developing a mitigation
case. While the Court has “assumed that in some cases
counsel would be deemed ineffective for failing to
consult or rely on experts” at all, it has cautioned that
“[r]are are the situations” in which counsel’s “wide
latitude . . . in making tactical decisions will be
limited to any one technique or approach.”
Harrington, 562 U.S. at 106 (cleaned up).
Here, the state postconviction court reasonably
found that counsel consulted an appropriate array of
mental-health experts—at least two of whom, in any
event, did testify (to some extent) about the link
between Owens’s background and his behavior. Even
assuming it would have been “best practices” to
consult a child-development expert as well,
professional norms didn’t compel that approach. See
Winston, 683 F.3d at 504.
To the extent Owens complains that counsel failed
to present mitigating evidence within their
possession, we reject this argument as well. Owens
advances two points in this respect. First, he contends
that counsel should have presented evidence of the
conditions of confinement during his time in SCDJJ
custody. But the state postconviction court reasonably
concluded that counsel’s decision not to present such
evidence was the product of reasonable professional
judgment. Godfrey testified that he didn’t introduce
evidence about the conditions at SCDJJ for two
reasons: because it would have “opened the door” to
evidence of Owens’s “numerous” disciplinary
App-33
violations, J.A. 2201; and because its probative value
would have been “difficult . . . to . . . sell a jury on,”
J.A. 2199. While others might have judged differently,
we think counsel judged with reasonable competence
in avoiding such “double-edged” evidence. See Gray,
529 F.3d at 239.
Second, and more generally, Owens contends that
counsel should have presented his mitigation story in
far greater detail. But regardless of whether such
detail would have made for a more compelling
narrative, the fact that it would have been “merely
cumulative to the evidence actually heard by the
jury . . . undercuts [Owens’s] claim for deficient
performance.” See Morva, 821 F.3d at 530. The
Supreme Court has likewise rejected the notion that
counsel must tell a defendant’s life history with
elaborative detail, reasoning that where (as here)
counsel put forth “substantial mitigation evidence,”
any
cumulative evidence
about the
same
circumstances heard by the jury offers “an
insignificant benefit, if any at all.” See Wong v.
Belmontes, 558 U.S. 15, 23 (2009) (per curiam); cf.
Bobby, 558 U.S. at 11 (“[T]here comes a point at which
evidence from more distant relatives can reasonably
be expected to be only cumulative . . . .”).
The cases on which Owens relies in this respect
are distinguishable because none rested on merely
“superficial” or “generalized” presentations. See Pet’r’s
Br. 43. Rather, in each of them, our sister circuits
emphasized that the jury had “heard nothing” at all
about substantial mitigating evidence. Outten v.
Kearney, 464 F.3d 401, 421 (3d Cir. 2006); see also
Powell v. Collins, 332 F.3d 376, 399-400 (6th Cir.
App-34
2003) (counsel “fail[ed] to make even a limited
investigation”); Cargle v. Mullin, 317 F.3d 1196, 122122 (10th Cir. 2003) (counsel overlooked “significant
mitigating information,” including that the defendant
had learning difficulties and that his father was
abusive); Neal v. Puckett, 286 F.3d 230, 240 (5th Cir.
2002) (en banc) (counsel failed to discover similar
“readily available” mitigating facts because they had
no “time or money” to do so); Jermyn v. Horn, 266 F.3d
257, 308-09 (3d Cir. 2001) (counsel “fail[ed] to
investigate the circumstances of [the defendant’s]
childhood,” including “allegations of childhood
abuse”). The same cannot be said here.
Finally, we think the state postconviction court
also reasonably concluded that any deficiency in
Sentencing Counsel’s investigation or presentation
wasn’t prejudicial in light of the total balance of
aggravating and mitigating evidence. As the court
observed, the State presented overwhelming evidence,
not only that Owens satisfied both statutory
aggravating circumstances charged, but also of his
future dangerousness and inability to adapt to
incarceration. Weighed against such aggravating
evidence, the additional mitigating evidence that
Owens contends counsel should have discovered and
presented—nearly all of which, as noted, was either
doubled-edged or cumulative—would indeed “have
offered an insignificant benefit, if any at all.” See
Wong, 558 U.S. at 23. We thus defer to the state court
on this ground as well.
C.
Owens next contends that Sentencing Counsel
were ineffective by failing to object on Confrontation
App-35
Clause grounds to the trial court’s admission of the
State’s record summarizing twenty-eight of his
disciplinary infractions while in SCDOC custody.
Owens argues that counsel should have so objected
because the Supreme Court clearly established his
right to confront the authors of his disciplinary record
in Crawford v. Washington, 541 U.S. 36 (2004), Davis
v. Washington, 547 U.S. 813 (2006), and MelendezDiaz v. Massachusetts, 557 U.S. 305 (2009). And he
asserts that the state court unreasonably applied
these cases in concluding to the contrary.
The Confrontation Clause provides that “[i]n all
criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI. The “ultimate goal” of
this safeguard being “to ensure reliability of evidence,”
the Confrontation Clause “commands, not that
evidence [necessarily] be reliable, but that reliability
be assessed in a particular manner: by testing in the
crucible of cross-examination.” Crawford, 541 U.S. at
61. Under the Supreme Court’s seminal decision in
Crawford, the Confrontation Clause accomplishes this
goal by barring the admission of “[t]estimonial” out-ofcourt statements made by declarants unavailable for
trial unless the defendant “had a prior opportunity to
cross-examine” the declarant. Id. at 59.
The state court held that Owens was “unable to
establish deficient performance” on this claim because
the disciplinary record was a “non-testimonial
business record[]” that did “not implicate the
Confrontation Clause.” J.A. 3700-01. And the court
reasoned that the business record was nontestimonial
because it wasn’t “prepared in anticipation of
App-36
producing testimony at [Owens’s] trial, but rather in
accordance with South Carolina statutory law for the
administration of prison affairs.” J.A. 3701-02 (citing,
inter alia, S.C. Code Ann. § 24-21-70). The court also
held that any deficiency in counsel’s failure to object
wasn’t prejudicial in light of the “overwhelming
evidence of Owens’[s] future dangerousness, bad
character, and inability to adapt to prison life,”
including testimony about many of the same
disciplinary infractions. J.A. 3703.
We believe the state court’s decision reasonably
applied the standard that a plurality of the Supreme
Court articulated in Melendez-Diaz for determining
whether a business record implicates the
Confrontation Clause. Melendez-Diaz was the first
case in which the Court applied Crawford’s novel
“testimonial” standard to a document and potential
business record. The records at issue there were
certain “certificates of analysis,” which the plurality
likened to affidavits, “showing the results of [a]
forensic analysis” performed on a white substance
(which proved to be cocaine) that police had seized
from the defendant’s vehicle. See Melendez-Diaz, 557
U.S. at 308 (plurality opinion). In holding that there
was “little doubt” these affidavits fell within the “‘core
class of testimonial statements’” first outlined in
Crawford, id. at 310 (quoting 541 U.S. at 51), the
Court emphasized that their “sole purpose” under
state law “was to provide prima facie evidence” in the
defendant’s criminal trial, id. at 311 (cleaned up); see
also United States v. Cabrera-Beltran, 660 F.3d 742,
752 (4th Cir. 2011) (noting that the Court’s holding
“relied heavily on the fact that the affidavits at issue
were specifically created for trial purposes”).
App-37
The limited effect of Melendez-Diaz’s holding with
respect to business records is evident where the
plurality rejected the defendant’s argument that the
affidavits were categorically nontestimonial because
they “qualif[ied] as traditional . . . business records”
under Fed. R. Evid. 803(6). See 557 U.S. at 321. In this
respect, the plurality held that even assuming the
affidavits were business records, such records are
nonetheless “testimonial” for purposes of the
Confrontation Clause “if the regularly conducted
business activity is the production of evidence for use
at trial.” Id. In other words, while business records
“are generally admissible absent confrontation . . .
because—having been created for the administration
of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial—they are not
testimonial,” that isn’t so where the business records
were “prepared specifically for use at petitioner’s
trial.” Id. at 324. 2
In light of that reasoning, we have understood
Melendez-Diaz to establish the principle that a
business record is “testimonial” only if the record was
created primarily for the purpose of “proving some fact
at trial.” See Cabrera-Beltran, 660 F.3d 752 (quoting
2 Before Crawford, the Court’s prevailing interpretation of the
Confrontation Clause exempted extra judicial statements by
unavailable declarants as long as they bore “adequate indicia of
reliability.” See Ohio v. Roberts, 448 U.S. 56, 66 (1980) (cleaned
up), abrogated by Crawford, 541 U.S. 36. Because adequate
indicia of reliability could be established where the statements
fell “within a firmly rooted hearsay exception,” id., the right of
confrontation didn’t attach to business records under Roberts, cf.
Fed. R. Evid. 803(6) (setting forth the traditional business
records exception to the rule against hearsay).
App-38
Melendez-Diaz, 557 U.S. at 324). Our sister circuits
have tended to agree. See, e.g., United States v. Garcia,
887 F.3d 205, 213 (5th Cir. 2018); United States v.
Lorenzo-Lucas, 775 F.3d 1008, 1010 (8th Cir. 2014);
United States v. James, 712 F.3d 79, 94-96(2d Cir.
2013);United States v. Cameron, 699 F.3d 621, 640
(1st Cir. 2012);United States v. Smith, 640 F.3d 358,
363 (D.C. Cir. 2011); United States v. Yeley-Davis, 632
F.3d 673, 679 (10th Cir. 2011); United States v.
Orozco-Acosta, 607 F.3d 1156, 1163 (9th Cir. 2010).
Indeed, even an apparent majority of the Supreme
Court—including the late Justice Scalia, who
authored the plurality opinion in Melendez-Diaz—has
since adhered to the view that business records “are
testimonial and require confrontation” only when they
were “prepared specifically for use at a criminal trial.”
See Michigan v. Bryant, 562 U.S. 344, 392 (2011)
(Scalia, J., dissenting); id. at 358, 359 (plurality
opinion) (noting that “when a statement is not
procured with a primary purpose of creating an out-ofcourt substitute for trial testimony,” its admissibility
“is the concern of state and federal rules of evidence,
not the Confrontation Clause”); see also Bullcoming v.
New Mexico, 564 U.S. 647, 669-70 (2011) (Sotomayor,
J., concurring in part and concurring in the judgment)
(“Melendez-Diaz explained that . . . documents kept in
the regular course of business may ordinarily be
admitted at trial despite their hearsay status, except
if the regularly conducted business activity is the
production of evidence for use at trial.” (cleaned up)).
In light of this broad consensus, the state court
reasonably applied the Supreme Court’s holdings in
stating that a business record isn’t testimonial unless
App-39
it was “prepared in anticipation of producing
testimony
at
trial”
rather than for the
“administration” of the entity’s “affairs.” J.A. 3701-02.
The court also reasonably determined that Owens’s
disciplinary record was prepared “for the
administration of prison affairs” rather than “in
anticipation of producing testimony” in any of his
trials. Id.
Specifically, South Carolina law provides that, for
any prisoner confined in the state penitentiary, the
Department of Corrections “must keep a record of the
industry, habits, and deportment of the prisoner, as
well as other information requested by the board [of
probation] or the director [of the department] and
furnish it to them upon request.” S.C. Code Ann. § 2421-70. As Owens concedes, the record was thus
prepared in the ordinary course of the prison’s
business, pursuant to its obligation under state law “to
furnish upon request records of an inmate’s
deportment.” Pet’r’s Br. 63. And while Owens points
out that the record could be admitted in a criminal
trial, see State v. Whipple, 476 S.E.2d 683, 687-88 (S.C.
1996), that alone doesn’t suffice to trigger the
protection of the Confrontation Clause under the
Supreme Court’s clearly established law. 3
Owens’s counterarguments are unavailing. Above
all, Owens is wrong to assert that Melendez-Diaz
3 Because we uphold the state postconviction court’s reasoning
under § 2254(d)(1), we needn’t address the parties’ additional
dispute over whether the Confrontation Clause applies to capital
sentencing trials such as Owens’s, in which the jury is invited to
find additional aggravating facts that would support a death
sentence.
App-40
clearly established the principle that any declaration
“made under circumstances which would lead an
objective witness reasonably to believe that the
statement would be available for use at a later trial”
is testimonial. See 557 U.S. at 310 (quoting Crawford,
541 U.S. at 52). While the plurality did quote that
broader “‘formulation[] of th[e] core class of
testimonial statements’” from Crawford in passing, id.
(quoting 541 U.S. at 51), its holding (to reiterate)
rested on the fact that the affidavits were prepared for
“the sole purpose” of being used at trial, id. at 311. And
while some judges have suggested that the broader
formulation should apply to business records, see
James, 712 F.3d at 108 (Eaton, J., concurring), such a
view is far from clearly established.
Owens further misses the mark in attributing this
broader definition to Crawford itself. To the contrary,
Crawford referred to statements “made under
circumstances which would lead an objective witness
reasonably to believe that the statement would be
available for use at a later trial,” 541 U.S. at 52
(cleaned up), as merely one of the “[v]arious
formulations of th[e] core class of ‘testimonial’
statements” proposed in that case by the parties and
their amici, id. at 51. But Crawford declined to adopt
any of those formulations as law, reasoning that the
statements at issue “qualif[ied] under any definition.”
Id. at 52.
Similarly, in contending that Davis stands for the
principle that any statement whose “primary
purpose . . . is to establish or prove past events
potentially relevant to a later prosecution” is
testimonial, 547 U.S. at 822, Owens divorces the
App-41
Court’s language from its narrow context. Like
Crawford, Davis involved the kind of statements that
traditionally implicated the Confrontation Clause—
those made by an eyewitness to a crime “in response
to police interrogation.” See id. Read in this context,
the language on which Owens relies serves only to
differentiate amongst such statements based on
whether or not they were made “to enable police
assistance to meet an ongoing emergency.” See id. at
828.
Indeed, because Crawford and Davis both dealt
only “with ordinary witnesses,” neither case clearly
established more than the proposition “that formal
statements made by a conventional witness—one who
has personal knowledge of some aspect of the
defendant’s guilt—may not be admitted without the
witness appearing at trial to meet the accused face to
face.” See Melendez-Diaz, 557 U.S. at 330-31
(Kennedy, J., dissenting). Accordingly, because none
of these cases hold that Owens’s disciplinary record,
as a business record, implicates the Confrontation
Clause, the state court reasonably concluded that
Sentencing Counsel’s failure to raise such an objection
wasn’t deficient.
We likewise conclude that the state court
reasonably determined that any deficiency in
counsel’s failure to so object wasn’t prejudicial in light
of the overwhelming evidence of Owens’s future
dangerousness and inability to adapt to incarceration.
Such evidence included testimony not only about
Owens’s killing of his fellow inmate on the eve of his
first sentencing trial, but also about many of the same
infractions summarized in the disciplinary record. In
App-42
this respect, several of counsel’s own witnesses,
especially Dr. Cobb, opened the door to testimony
about Owens’s ongoing disciplinary problems upon
cross-examination
by
testifying
about
his
improvements. It’s thus debatable at best that
Owens’s disciplinary record prejudiced the outcome of
his third sentencing trial.
To sum up, the district court properly concluded
that the state postconviction court reasonably applied
the Supreme Court’s precedents in denying each of
Owens’s exhausted Strickland claims. We turn now to
consider his unexhausted Strickland claim.
III.
Owens’s procedurally defaulted claim of
ineffective assistance brings us back to the
investigation of his mitigation case. Here, Owens
requests an evidentiary hearing in the district court
on the merits of his claim that Sentencing Counsel was
ineffective by failing to obtain a comprehensive
neuroimaging evaluation, which revealed evidence of
structural and functional brain damage in 2016. Yet
because Owens neglected to present this claim in his
initial postconviction petition, he must demonstrate
cause and prejudice under Martinez and Coleman to
obtain a hearing. And despite implying the contrary
conclusion when we granted the COA, we agree with
the district court that Owens fails to demonstrate
cause because his underlying claim is insubstantial.
We therefore deny his request.
A.
We start by describing the cause-and-prejudice
standard, which reflects the well-established principle
that “[f]ederal habeas courts reviewing the
App-43
constitutionality of a state prisoner’s conviction and
sentence are guided by rules designed to ensure that
state-court judgments are accorded the finality and
respect necessary to preserve the integrity of legal
proceedings within our system of federalism.” See
Martinez, 566 U.S. at 9. Chief among such rules is “the
doctrine of procedural default, under which a federal
court will not review the merits of claims, including
constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state
procedural rule.” Id. As a result, a state court’s
“invocation of a [state] procedural rule to deny a
prisoner’s claims precludes federal review of the
claims” so long as the state procedural rule is
“adequate to support the judgment,” is “firmly
established,” and has been “consistently followed.” Id.
Of course, “[t]he doctrine barring procedurally
defaulted claims from being heard is not without
exceptions.” Id. at 10. As relevant here, in Coleman
the Supreme Court held that where “a state prisoner
has defaulted his federal claims in state court
pursuant to an independent and adequate state
procedural rule,” a federal habeas court may
nonetheless entertain the claim if “the prisoner can
demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law.” 501
U.S. at 750. The Court also held that a state prisoner
may establish cause by establishing that his attorney’s
assistance was “constitutionally ineffective under the
standard established in Strickland v. Washington.” Id.
at 752 (cleaned up). But the Court proceeded to curtail
the effect of these rules by further holding that
ineffectiveness on the part of a state prisoner’s counsel
in a postconviction proceeding doesn’t qualify as cause,
App-44
reasoning that because the Sixth Amendment doesn’t
obligate states to provide counsel beyond direct
review, the prisoner “bears the risk” of any errors by
postconviction counsel. Id. at 754.
In Martinez, however, the Court found it
necessary to “qualif[y]” Coleman’s holding that
postconviction counsel’s errors don’t qualify as cause
to excuse a procedural default. 566 U.S. at 9. After all,
not only do such errors literally cause the default, but
there would otherwise be no remedy available to
review the prisoner’s claims. See id. at 10-11. Martinez
thus announced the following “narrow exception,” id.
at 9: “Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an initialreview collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in
the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective,”
id. at 17.
Otherwise stated, a state prisoner may establish
cause under Martinez by showing (1) that the
defaulted ineffective-assistance-of-trial-counsel claim
is “substantial,” (2) that counsel in the initial state
collateral-review proceeding was ineffective or absent,
and (3) that state law required the ineffectiveassistance-of-trial-counsel claim to be raised in the
initial collateral-review proceeding as opposed to on
direct review. See Trevino v. Thaler, 569 U.S. 413, 423
(2013). A “substantial claim” is one that has “some
merit,” a standard that the Martinez Court likened to
the one that governs the issuance of COAs under 28
U.S.C. § 2253(c)(2). See Martinez, 566 U.S. at 14
App-45
(citing Miller-El, 537 U.S. 322); cf. Miller-El, 537 U.S.
at 327 (noting that a prisoner must “demonstrate ‘a
substantial showing of the denial of a constitutional
right’” (quoting 28 U.S.C. § 2253(c)(2)).
A few of our sister circuits have remarked an
apparent incongruity lurking in the Martinez
standard. To establish that postconviction counsel’s
errors “caused prejudice under Strickland,” a state
prisoner would have to show that counsel “could have
obtained a different result had he presented the nowdefaulted
ineffective-assistance-of-trial-counsel
claim.” Workman v. Superintendent Albion SCI, 915
F.3d 928, 938 (3d Cir. 2019). To do that, however, a
state prisoner would have to show that the defaulted
claim is itself meritorious. Id. at 938-39; accord Brown
v. Brown, 847 F.3d 502, 513 (7th Cir. 2017). In other
words, Martinez appears to require a state prisoner to
prevail on the merits of his underlying claim merely
“to excuse the procedural default” and “obtain
consideration on the merits.” Workman, 915 F.3d at
939.
These sister circuits have understandably
“rejected that notion.” See id. at 940. Instead, they
have reasoned that a state prisoner satisfies Martinez
by showing, first, that initial postconviction counsel
performed deficiently, under the first prong of
Strickland, by failing to exhaust the underlying
ineffective-assistance-of-trial-counsel claim, but not
that said counsel’s deficient performance was
prejudicial, under the second prong of Strickland; and
second, that the underlying claim is substantial, or
has some merit, with respect to both prongs of
Strickland. Id.; accord Brown, 847 F.3d at 513.
App-46
We agree with our sister circuits that this rule “is
sensible, workable, and a proper reading of Martinez.”
Workman, 915 F.3d at 941. Accordingly, to establish
cause to excuse the procedural bar to his underlying
ineffective-assistance-of-Sentencing-Counsel claim,
Owens must show (1) that the underlying claim is
substantial and (2) that Initial Postconviction
Counsel’s failure to raise it was deficient. 4 We turn
now to this inquiry.
With respect to the first of these showings, Owens
echoes the petitioner in Brown by contending that we
“have already determined that his defaulted
ineffective assistance of trial counsel claim is
substantial under Martinez” by granting his COA with
respect to it. See 847 F.3d at 515. If so, that begs the
question of whether we are bound by that prior
determination under the “law of the case” doctrine,
which “posits that when a court decides upon a rule of
law, that decision should continue to govern the same
issues in subsequent stages in the same case,”
Christianson v. Colt Indus. Operating Corp., 486 U.S.
800, 816 (1988) (cleaned up), including with respect to
“an earlier decision of a panel of an appellate court,”
United States v. Houser, 804 F.2d 565, 567 (9th Cir.
1986).
We recently held that South Carolina law satisfies the
remaining element of Martinez by requiring ineffectiveassistance claims to be raised on collateral review, Sigmon v.
Stirling, 956 F.3d 183, 198 (4th Cir. 2020), and the State doesn’t
argue otherwise here. Additionally, because we find that Owens
fails to establish cause under Martinez, we needn’t address
whether he satisfies the prejudice prong of Coleman. Cf.
Martinez, 566 U.S. at 18 (stating that “the question of prejudice”
remained open on remand).
4
App-47
Our sister circuit sidestepped this issue in Brown,
finding that Martinez didn’t elucidate the nature of its
substantiality standard and noting that other circuits
have offered “limited further guidance.” See 847 F.3d
at 515; cf. Martinez, 566 U.S. at 21 n.2 (Scalia, J.,
dissenting) (“The Court does not explain where this
substantiality standard comes from . . . .”). The court
observed that, while Martinez cited to Miller-El in
discussing its substantiality standard, it did so with
an ambiguous “cf.” signal, and without clarifying how
the two standards relate to each other. See Brown, 847
F.3d at 515. So the court opted to “conduct a separate
and deeper review of the record, beyond [its] grant of
a [COA],” and reaffirm thereby that the underlying
claim was “substantial” under Martinez. Id.
The only other circuit that appears to have
identified this issue likewise declined to resolve it. See
Dansby v. Hobbs, 766 F.3d 809, 840 n.4 (8th Cir. 2014)
(assuming the two standards are identical but positing
that the denial of certain underlying claims as
insubstantial under Martinez “may be construed as
the revocation of the COA as to those claims”). Yet
while other circuits haven’t squarely addressed it,
several have suggested that Martinez incorporated the
standard for issuing a COA under § 2253(c)(2) into its
definition of substantiality. See Workman, 915 F.3d at
937-38; Flores v. Stephens, 794 F.3d 494, 505 (5th Cir.
2015).
For our part, we think the Supreme Court’s cases
with respect to § 2253(c)(1) bear out Owens’s assertion
that the Martinez substantiality standard is identical
to the one we implicitly resolved in his favor by
granting the COA. As the Court “reiterate[d]” in
App-48
Miller-El,
a
prisoner
satisfies
§ 2253(c)(1)’s
substantiality standard “by demonstrating that
jurists of reason could disagree with the district
court’s resolution of his constitutional claims.” 537
U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473,
484 (2000)). And in Slack, the Court held how that
standard (which derives from the Court’s pre-AEDPA
decision in Barefoot v. Estelle, 463 U.S. 880 (1983))
applies to a claim that the district court “dismissed on
procedural grounds.” 529 U.S. at 484. In that instance,
a COA may issue only if the prisoner shows “that
jurists of reason would find it debatable” both
“whether the district court was correct in its
procedural ruling” and “whether the petition states a
valid claim of the denial of a constitutional right.” Id.
In other words, Slack requires a prisoner to
demonstrate a “substantial underlying constitutional
claim[]” to warrant a COA under § 2253(c)(1). Id.
(emphasis added).
That the underlying constitutional claim “is a
substantial one” is precisely the showing that Owens
must now make (again) to show cause under Martinez.
See 566 U.S. at 14. Simply put, both standards turn on
whether the claim underlying the procedural default
is “substantial.” And while Martinez phrases that
inquiry in terms of the claim’s having “some merit,”
see id., whereas Slack phrases the inquiry in terms of
“reasonable jurists” being able to debate the claim’s
validity, see 529 U.S. at 484, we see little daylight
between those formulations. If reasonable jurists
could debate the merits of the underlying claim, then
it must have (at least) some merit.
App-49
That said, we don’t think this apparent
redundancy between the Martinez and § 2253(c)(1)
substantiality
standards
precludes
us
from
reconsidering the merit of Owens’s underlying claim
at this stage of the case. As the Supreme Court has
recognized, the law of the case doctrine “merely
expresses the practice of courts generally to refuse to
reopen what has been decided, not a limit to their
power.” Messenger v. Anderson, 225 U.S. 436, 444
(1912). The doctrine is therefore “discretionary” rather
than “mandatory,” and admits of a variety of
exceptions. See CNF Constructors, Inc. v. Donohoe
Const. Co., 57 F.3d 395, 398 n.1 (4th Cir. 1995); accord
Houser, 804 F.2d at 567. In the context of an earlier
decision of a panel of an appellate court, our sister
circuits have acknowledged the ability to reconsider a
ruling “on the same issue presented in the same action
if a showing is made which compels us to reconsider
our prior decisions.” See Houser, 804 F.2d at 568. We
too have done so in the context of “a prior ruling of a
motion panel,” which is essentially what we have here.
See CNF Constructors, 57 F.3d at 398 n.1.
In the Martinez context, we think ourselves
warranted in reconsidering the substantiality of the
underlying claim for three reasons. First and
foremost, the substantiality standard implicates our
very “jurisdiction to consider [Owens’s] appeal,” an
issue that circuit courts have tended to view as
immune from the law of the case doctrine in light of
our “duty . . . to dismiss whenever it becomes
apparent that we lack jurisdiction.” See Houser, 804
F.3d at 568-69 (cleaned up); accord CNF Constructors,
57 F.3d at 397 n.1; Johnson v. Burken, 930 F.2d 1202,
1205 (7th Cir. 1991); EEOC v. Neches Butane Prods.
App-50
Co., 704 F.2d 144, 147 (5th Cir. 1983); Green v. Dep’t
of Commerce, 618 F.2d 836, 839 n.9 (D.C. Cir. 1980).
True, the standard is jurisdictional in the technical
sense only with respect to the Slack iteration, since
§ 2253(c)(1) provides that “an appeal may not be
taken” from a final order dismissing a § 2254 petition
“[u]nless a circuit justice or judge issues a certificate
of appealability.” 28 U.S.C. § 2253(c)(1). Yet the
Martinez iteration might be viewed similarly as
“quasi-jurisdictional” insofar as no federal court may
consider the merits of a defaulted claim until the
procedural bar is excused. See Martinez, 566 U.S. at 910; cf. Champagne v. Schlesinger, 506 F.2d 979, 982
(7th Cir. 1974) (noting that “exhaustion is a quasijurisdictional problem”). And whether framed as
rescinding the COA (as suggested by our sister circuit
in Dansby) or simply denying the claim under
Martinez, our ability to reconsider the issue leads to
the same result.
Second, as is often the case with the ruling of a
“preliminary” panel, “practical realities” required us
to rule on the COA “without the benefit of full briefing
and oral argument,” which prevented the relevant
arguments from being “fully present[ed]” to us. See
CNF Constructors, 57 F.3d at 397 n.1. Indeed, we
granted the COA based solely on Owens’s opening
brief, without the benefit of any briefing by the State
(not to mention oral argument). See Local R. App. P.
22. And reflecting the “provisional” nature of that
ruling, our order was not only unpublished but also
“without opinion,” which furthers weighs against its
tying our hands under Martinez. See EEOC, 704 F.2d
at 147. Thus, while a merits panel “does not lightly”
revisit an earlier panel decision “during the course of
App-51
the same appeal,” we have more leeway to do so here,
where the issue didn’t receive a “[f]ull review” until
after the COA had issued. See Houser, 804 F.2d at 568.
And third, the very fact that Martinez directs us
to address an issue we already confronted when
deciding whether to grant a COA leaves us no doubt
that we may reconsider the substantiality of the
underlying claim. By citing Miller-El in discussing its
cause standard, Martinez demonstrated (at the very
least) the Court’s awareness that a prisoner must
first, before any argument as to procedural default,
make the requisite showing to obtain a COA. See 566
U.S. at 14. Yet Martinez nowhere suggests that cause
is predetermined as soon as a COA is granted. Indeed,
because such an effect would render the first step of
the Martinez standard superfluous, the law of the case
doctrine seems antithetical to its operation. We
therefore view our duty under Martinez to consider the
substantiality of the underlying claim, even after
granting a COA, as affording us another (and fuller)
opportunity to do so.
Accordingly, we turn now to reconsider—without
regard to our grant of a COA—whether Owens’s
underlying claim is substantial under Martinez. 5
C.
Upon reconsideration, we are satisfied that the
district court properly found that Owens’s underlying
5 Our holding in this respect is consistent with our decisions in
two recent cases, where we found (without being called to address
the issue resolved here) that an underlying Strickland claim was
insubstantial under Martinez despite having granted a COA. See
Sigmon, 956 F.3d at 193, 199; Moore v. Stirling, 952 F.3d 174,
181, 185-86 (4th Cir. 2020).
App-52
claim—that Sentencing Counsel rendered ineffective
assistance by failing to have him neuroimaged for
evidence of structural and functional brain damage—
is insubstantial. See Owens, 2018 WL 2410641, at *3335.
As noted with respect to Owens’s very first claim,
Sentencing Counsel’s obligation to conduct a thorough
investigation of his mitigating evidence certainly
extended to evidence that could “cast light on [his]
mental condition.” See Rompilla, 545 U.S. at 382; see
also Wiggins, 539 U.S. at 534-35 (counsel “failed to
discover and present” evidence of Wiggins’s
“diminished mental capacities”); Williams, 529 U.S. at
396 (counsel “failed to introduce available evidence
that Williams was borderline mentally retarded”
(cleaned up)). But the issue again turns on how
thorough the investigation had to be under prevailing
professional norms. And here, while counsel may have
rendered ineffective assistance had they failed “to
investigate [Owens’s] mental condition as a mitigating
factor” altogether, see Caro v. Woodford, 280 F.3d
1247, 1254 (9th Cir. 2002) (cleaned up), or failed “to
provide mental health experts with information
needed to develop an accurate profile of [his] mental
health,” see id., or even overlooked “red flags pointing
up a need to test further,” see Rompilla, 545 U.S. at
392 (cleaned up), on this record, there is no merit to
the claim that they were ineffective by not obtaining a
comprehensive neuroimaging evaluation.
Our analysis of Owens’s first claim illustrates
that counsel thoroughly investigated his mental
condition as a mitigating factor; indeed, along with his
impoverished and violence-ridden upbringing, it was
App-53
the predominant factor in their mitigation case. Recall
that counsel began their representation with the
benefit of two previous trials’ worth of mitigating
evidence, including myriad mental health records and
expert opinions. They then enlisted their own team of
experts—including a neuropsychologist, forensic
psychiatrist, and clinical social worker—to take that
information, find more of it, and independently assess
Owens’s mental condition. These experts, who were
well aware of the indicia of mental impairment,
probed the mental health histories of Owens and his
family members, consulted with treating doctors and
other medical experts, and conducted their own suite
of evaluations. And finally, counsel presented the
opinions of their mental health experts, who testified
collectively to the effect that, while Owens suffered
from a variety of disorders and deficiencies that made
him more prone to engage in violent crime, he didn’t
suffer from brain damage or mental illness.
Owens fails to show that reasonable jurists could
debate whether such a thorough investigation of his
mental condition fell short of an objective standard of
reasonableness. Not only did counsel take extensive
measures to investigate Owens’s behavioral cognition
for mitigating evidence, their mental health experts
reached conclusions that belied the need for
comprehensive neuroimaging—which no expert
suggested during Owens’s case until his federal
habeas proceedings.
And much as Owens might disagree with those
conclusions in retrospect, he provides no reason to
believe that they were professionally unreasonable.
Thus, because Strickland “does not require counsel to
App-54
investigate every conceivable line of mitigating
evidence,” Wiggins, 539 U.S. at 533, the fact that
Sentencing Counsel didn’t see fit to pursue a
comprehensive neurobehavioral assessment doesn’t
amount
to
“incompetence
under
prevailing
professional norms,” Winston, 683 F.3d at 504
(cleaned up).
Relatedly, Owens falls short of establishing that
counsel missed any red flags pointing to the need to
obtain neuroimaging or otherwise further investigate
for evidence of structural and functional brain
damage. Owens’s reliance on his prescription for
Depakote in this respect—the only red flag he
identifies on appeal—is misplaced.
Specifically, Owens relies on Dr. Wood’s opinion
that neuroimaging “should have at the very least been
considered,” J.A. 4203, due to the “history of seizure
disorders” indicated by Owens’s “treatment with
Depakote,” J.A. 4202. He also points to Dr. Brawley’s
affidavit swearing that, had she “been given
information regarding previous seizure activity” while
preparing for trial, this “would have cause[d] [her] to
recommend a full neurological evaluation.” J.A. 4231.
Yet the record belies the premise that Owens’s
treatment with Depakote at Lieber was indicative of
seizure activity. To the contrary, as Dr. Cobb testified
himself in Owens’s third sentencing trial, he had
prescribed Depakote (in combination with Risperdal)
only to help stabilize Owens’s moods and “slow [his]
brain down.” J.A. 1594-95. Dr. Cobb also testified that
Depakote is commonly prescribed to treat mood
disorders like bipolarism, for which Dr. SchwartzWatts herself discovered that Owens had been
App-55
receiving treatment at Lieber, and thus not only
seizure disorders. In light of these explanations, we
discern no indication that Sentencing Counsel
overlooked evidence of seizure activity.
Finally, we agree with the district court that
Sentencing Counsel’s decision not to call Dr. Evans as
a witness also bears on the analysis. As the
neuropsychology expert in the previous sentencing
trial, Dr. Evans testified that Owens had mild brain
dysfunction in his frontal lobe. That testimony
generally echoes the results of Dr. Gur’s
comprehensive neuroimaging assessment. And the
technique that Dr. Evans used to reach his results
(qEEG) bears similarity to the techniques used by Dr.
Gur (PET and MRI); all three may even be considered
subsets of “neuroimaging” technologies. See Laura
Stevens Khoshbin & Shahram Khoshbin, Imaging the
Mind, Minding the Image: An Historical Introduction
to Brain Imaging and the Law, 33 Am. J.L. & Med.
171, 176-77 (2007).
Sentencing Counsel thus already had “similar
evidence” at their fingertips to that which Owens
contends they should have developed through
neuroimaging. See Owens, 2018 WL 2410641, at *35.
But when presented with the claim (which Owens
didn’t raise in his § 2254 petition) that counsel was
ineffective by declining to present Dr. Evans’s
testimony, the state court properly denied it on the
ground that counsel’s decision to go with Dr. Brawley’s
testimony reflected a professionally reasonable
strategy to take a more conservative approach to the
neurological mitigating evidence.
App-56
As Godfrey testified during Owens’s initial
postconviction proceeding, he was concerned that
avant-garde diagnostic techniques wouldn’t play in
front of a local Greenville jury. He was also aware that
any evidence of brain damage would be double-edged
and might well do more harm than good for Owens’s
mitigation case, because it would bespeak his inability
to become less violent. Since this “sound trial strategy”
would apply with comparable force to similar evidence
based on Dr. Gur’s neuroimaging evaluation, see
Strickland, 466 U.S. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)), it presents an
additional reason why Owens’s underlying claim is
insubstantial. 6
*
*
*
For the foregoing reasons, we hold that the state
postconviction court reasonably denied Owens’s
exhausted Strickland claims on the grounds that
capital sentencing counsel thoroughly investigated
and presented his available evidence in mitigation,
and didn’t neglect a viable Confrontation Clause
objection to his disciplinary record. We also hold that
the district court properly denied Owens’s defaulted
Strickland claim as insubstantial under Martinez.
Therefore, the judgment of the district court is
AFFIRMED.
6 Because we conclude that Sentencing Counsel didn’t perform
deficiently in failing to obtain comprehensive neuroimaging, we
needn’t address whether Owens’s underlying claim is substantial
with respect to the prejudice prong of Strickland. We also needn’t
address whether Initial Postconviction Counsel performed
deficiently in failing to exhaust Owens’s underlying claim.
App-57
Appendix B
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
________________
No. 18-8
________________
FREDDIE OWENS,
v.
Petitioner-Appellant,
BRYAN P. STIRLING, Commissioner, South Carolina
Department of Corrections; WILLIE D. DAVIS, Warden
of Kirkland Correctional Institution,
Respondents-Appellees.
________________
Filed: Aug. 18, 2020
________________
Before WILKINSON, KEENAN, and DIAZ,
Circuit Judges.
________________
ORDER
________________
The court denies the petition for rehearing.
Entered at the direction of the panel: Judge
Wilkinson, Judge Keenan, and Judge Diaz.
For the Court
/s/ Patricia S. Connor, Clerk
App-58
Appendix C
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF SOUTH CAROLINA
________________
No. 0:16-cv-02512-TLW
________________
FREDDIE OWENS,
v.
Petitioner,
BRYAN P. STIRLING, Commissioner, South Carolina
Department of Corrections; WILLIE D. DAVIS, Warden
of Kirkland Correctional Institution,
Respondents.
________________
Filed: May 29, 2018
________________
ORDER
________________
This is a capital habeas corpus action brought
pursuant to 28 U.S.C. § 2254 by Petitioner Freddie
Owens against Respondents Bryan P. Stirling and
Willie D. Davis (collectively, the State). For the
reasons set forth below, the Court grants the State’s
motion for summary judgment and denies Owens’
habeas petition.
App-59
I.
Factual and Procedural History
A. Trial and First Sentencing
Irene Graves was murdered on November 1, 1997
during an armed robbery of the Speedway convenience
store where she worked in Greenville County, South
Carolina. Owens was indicted in October 1998 for
murder, armed robbery, possession of a firearm during
the commission of a violent crime, and criminal
conspiracy. He was represented by John M. Rollins Jr.
and Karl B. Allen in a jury trial that began on
February 8, 1999. The jury returned a guilty verdict
on all counts.
During the trial’s sentencing phase, after hearing
evidence and argument, the jury returned a
recommendation of death on the murder conviction,
finding as an aggravating circumstance that the
murder was committed while in the commission of a
robbery while armed with a deadly weapon. The
presiding judge sentenced Owens to death for murder,
thirty years consecutive for armed robbery, five years
concurrent for possession of a weapon during a violent
crime, and five years concurrent for criminal
conspiracy.
B. First Direct Appeal
Owens timely appealed and was represented on
appeal by Rollins, Allen, and Katherine Carruth Link,
Assistant Appellate Defender with the South Carolina
Office of Appellate Defense. On appeal, he raised
issues relating to the trial court’s jurisdiction,
evidentiary rulings, the denial of a new trial, and
sentencing. On September 4, 2001, the South Carolina
Supreme Court affirmed his convictions, but vacated
his sentence for possession of a firearm during
App-60
commission of a violent crime, reversed his death
sentence, and remanded for a new sentencing
proceeding. State v. Owens (Owens I), 552 S.E.2d 745,
759-61 (S.C. 2001), overruled on other grounds by
State v. Gentry, 610 S.E.2d 494 (S.C. 2005).
C. Second Sentencing
On remand, Owens was represented by Alex
Kinlaw Jr. and Steve W. Sumner. At this sentencing,
he waived his right to a jury and proceeded with a
bench sentencing. After hearing evidence and
argument, the presiding judge sentenced Owens to
death.
D. Second Direct Appeal
Owens timely appealed and was represented on
appeal by Joseph L. Savitz III, Acting Chief Attorney
with the South Carolina Office of Appellate Defense.
The sole issue on appeal involved the propriety of the
circuit judge’s colloquy with Owens regarding his jury
waiver. On December 20, 2004, the South Carolina
Supreme Court again reversed his death sentence and
remanded for a new sentencing proceeding. State v.
Owens (Owens II), 607 S.E.2d 78, 80 (S.C. 2004).
E. Third Sentencing
On remand, Owens was represented by Everett P.
Godfrey Jr. and Kenneth C. Gibson. 1 This time, he
proceeded before a jury, and after hearing evidence
and argument, the jury returned a recommendation of
death as to the murder conviction, finding as
1 The claims Owens raises in this habeas action all involve the
third sentencing, so any references throughout this opinion to
“sentencing counsel” refer to Godfrey and Gibson, unless
otherwise noted.
App-61
aggravating circumstances that the murder was
committed while in the commission of a robbery while
armed with a deadly weapon and that the murder was
committed while in the commission of a larceny with
the use of a deadly weapon. On November 11, 2006,
the presiding judge once again sentenced Owens to
death.
F. Third Direct Appeal
Owens timely appealed and was represented on
appeal by Savitz and LaNelle C. DuRant, both with
the South Carolina Commission on Indigent Defense,
Division of Appellate Defense. Appellate counsel
raised the following issues:
1. The trial judge abused his discretion when
he summarily disqualified a potential juror,
Sonya Ables (Juror Number 1), solely because
she “went to [her] pastor and talked to him
about [the death penalty],” as he incorrectly
believed “there is a case right on point, that if
a woman talks to her priest after she’s been
called as a juror about capital punishment,
she is disqualified under the law.”
2. The trial judge committed reversible error
by admitting Owens’ prison disciplinary
records, as they violated the rule against
hearsay, as well as the Sixth and Fourteenth
Amendments.
3. The trial judge committed reversible error
by allowing the Solicitor to argue in closing
that the conditions of life imprisonment in
general justified a death sentence for Owens,
as this argument injected an arbitrary factor
App-62
into the jury sentencing considerations in
violation of S.C. Code Section 16-3-25(C)(1).
ECF No. 16-4 at 222. On July 14, 2008, the South
Carolina Supreme Court affirmed his death sentence.
State v. Owens (Owens III), 664 S.E.2d 80, 82 (S.C.
2008). He then submitted a petition for rehearing,
which was denied.
After the denial of Owens’ petition for rehearing,
his new counsel, John H. Blume and Keir M. Weyble,
filed a petition for a writ of certiorari from the United
States Supreme Court. On January 21, 2009, the
Supreme Court denied the petition. Owens v. South
Carolina, 555 U.S. 1141 (2009).
G. First PCR Action
Owens then submitted a pro se petition for postconviction relief (PCR) on January 29, 2009. Weyble
and Emily C. Paavola were appointed to represent
Owens in the PCR proceeding. They submitted on his
behalf an amended petition and then a second
amended petition raising the following claims:
10(a)
Applicant was denied the right to
effective assistance of counsel as
guaranteed by the Sixth and Fourteenth
Amendments to the United States
Constitution and by Article I, §§ 3 and 14
of the South Carolina Constitution
during jury selection at his 2006 capital
re-sentencing proceeding.
11(a)
Supporting Facts: Trial counsel’s
performance during jury selection was
both deficient and prejudicial. See
Strickland v. Washington, 466 U.S. 668
App-63
(1984). Counsel’s acts
included the following:
or
omissions
1)
Counsel
failed
to
object
to
statements by the solicitor, and
similar instructions by the trial
court, that the State may only seek
death
where
aggravating
circumstances are present, which
improperly suggested to potential
jurors
that
the
aggravating
circumstances had already been
found.
2)
Counsel failed to object when the
trial judge erred by disqualifying a
potential juror, Sonya Ables (Juror
Number 1), solely because she “went
to [her] pastor and talked to him
about [the death penalty],” as the
trial judge incorrectly believed
“there is a case right on point, that if
a woman talks to her priest after
she’s been called as a juror about
capital
punishment,
she
is
disqualified under the law.”
10(b)
Applicant was denied the right to
effective assistance of counsel as
guaranteed by the Sixth and Fourteenth
Amendments to the United States
Constitution and by Article I, §§ 3 and 14
of the South Carolina Constitution,
during his 2006 capital sentencing
proceeding.
App-64
11(b)
Supporting Facts: Trial counsel’s
performance during jury selection was
both deficient and prejudicial. See
Strickland v. Washington, 466 U.S. 668
(1984). Counsel’s acts or omissions
included the following:
1)
Counsel failed to object and/or
request proper instructions from the
court when the State played a crime
scene
video
without
further
explanation or analysis. 2006 Tr. at
1076. The crime scene video shows
two masked men, but their faces are
not identifiable. One of the masked
men is primarily shown in the video.
He stands behind the counter, points
a gun at the clerk, and appears to
shoot the clerk before the two men
run out of the convenience store.
Applicant’s codefendant, Steven
Golden, testified at Applicant’s
previous trials that it was he
(Golden) who is primarily visible in
the video. The State then offered an
analysis as to why it believed the
fatal shot came from the other man
standing off-camera. The jury at
Applicant’s 2006 resentencing heard
no analysis about who appears in the
video. They were simply instructed
that Applicant had already been
found guilty of murder, and then
they were shown the video without
explanation. The trial judge at the
App-65
2006 re-sentencing instructed the
jurors that they could consider
whether Applicant had “minor
participation” in the crime as a
mitigating circumstance. 2006 Tr. at
1592.
But,
without
further
instruction, the video misled the jury
to believe that there was conclusive
video-graphic
evidence
that
Applicant fired the fatal shot,
thereby foreclosing consideration of
both the “minor participation”
mitigating circumstance, and the
related possibility that Applicant,
though perhaps present, had not
been the triggerman.
2)
Counsel failed to object to improper
and prejudicial opinion testimony
from Officer Joe Wood that Applicant
gave him “cold chills,” and the
solicitor’s reliance on that testimony
in closing argument. 2006 Tr. at
1093 and 1559.
3)
Counsel failed to object to victim
impact testimony regarding the
effect of the victim’s death on the
victim outreach coordinator. 2006
Tr. at 1274. Such testimony was
outside the scope of proper victim
impact evidence, and counsel’s
failure to lodge an appropriate
objection was unreasonable and
prejudicial. Counsel also failed to
App-66
object to hearsay testimony from the
victim
outreach
coordinator
concerning statements that the
victim’s children made to her after
the victim’s death. 2006 Tr. at 12681271. These statements violated the
evidentiary rules of South Carolina,
as well as the confrontation and the
due process clauses of the state and
federal constitutions.
4)
Counsel failed to preserve the state
and federal constitutional issues
related to the admission of a list of
disciplinary infractions by failing to
object on the basis of the
Confrontation Clause and due
process. On appeal, the South
Carolina Supreme Court held that
counsel’s objection was inadequate to
preserve the federal constitutional
issues and thus, the issue was
procedurally barred. See State v.
Stone, 655 S.E.2d 487, 488-89 (S.C.
2007). Counsel’s failure to lodge an
appropriate objection was deficient
and prejudicial.
5)
Counsel failed to present readily
available mitigating evidence that
had already been developed at
Applicant’s previous trial and first
resentencing
proceeding.
Ms.
Marjorie
Hammock
previously
testified in much greater detail to
App-67
Applicant’s
life
history
and
background. Further, Dr. Jim Evans
previously testified that Applicant
has
brain
dysfunction
and
difficulties with attention and
impulse control. Counsel failed to
have Ms. Hammock testify to all of
the details that were available
concerning Applicant’s life history,
and counsel failed to call Dr. Evans
to testify at all.
6)
Counsel failed to investigate and
present mitigating evidence of
Applicant’s
experiences
while
incarcerated in the Department of
Juvenile Justice, and the impact of
those
experiences
upon
his
character,
conduct,
and
psychological condition.
7)
Counsel failed to ensure that jurors
did not see Applicant in restraints.
8)
Counsel failed to object to the
solicitor’s improper and prejudicial
closing argument. For example,
counsel failed to object to the
solicitor’s statements that the
prosecution seeks death only rarely,
even in eligible cases, and this case
was one of those rare cases: “Only
limited circumstances are allowed
for us to seek the death penalty, and
rarely do we seek the death penalty
in all those cases that are eligible. In
App-68
only certain cases do we seek the
death penalty.” 2006 Tr. at 1552; see
also, 2006 Tr. at 1555 (“There are
mean and evil people in the world
who do not deserve to continue to live
with the rest of us, regardless of how
confined they may be. The law limits
the right to seek the death penalty to
a very select number of cases, very
few, and we seek the death penalty
only in a few, but the circumstances
where we seek it is available mean
and evil people who commit
atrocious acts of murder; the worst of
the worst. That is what the death
penalty is reserved for. Those whose
behavior sets them apart even from
the criminal world, and that is
Freddie Owens, and this murder and
his behavior are one of those cases”).
Counsel further failed to object when
the solicitor argued that the jury
should sentence Applicant to death
because his life would be easy in
prison. See, e.g., 2006 Tr. at 1561
(“[b]ig prison is like a little city. In
prison he will have all the necessities
in life. . . . He will have clothing that
they provide, and he will have
contact with his family, and TV at
times, and he will have family
business. Not much more than a
change of address for Freddie
Owens. So don’t think putting
App-69
Freddie Owens in prison for the rest
of his life is going to be a significant
punishment for him”). Counsel also
failed to object when the solicitor told
the jury that he personally wanted
the death penalty and would not be
“satisfied with a life sentence.” 2006
Tr. at 1555. Counsel thus failed to
preserve for appeal whether the
improper arguments violated the
Sixth, Eighth and Fourteenth
Amendments and the corresponding
provisions of the South Carolina
Constitution and South Carolina
law, including S.C. Code Ann. § 16-325(C) (2003).
10(c)
Applicant’s death sentence was
obtained in violation of the Sixth, Eighth
and Fourteenth Amendments to the
United States Constitution, and the
corresponding provisions of South
Carolina law, because the jurors saw
Applicant in restraints.
11(c)
The above ground states the relevant
facts.
10(d)
Applicant was denied the right to
effective assistance of counsel as
guaranteed by the Sixth and Fourteenth
Amendments to the United States
Constitution and by Article I, §§ 3 and 14
of the South Carolina Constitution,
during the appellate phase of his 2006 resentencing proceeding.
App-70
11(d)
Supporting facts: Appellate counsel’s
performance on appeal was both deficient
and prejudicial. See Strickland v.
Washington, 466 U.S. 668 (1984); Evitts
v. Lucey, 469 U.S. 387 (1985). Appellate
counsel failed to assert that it was error
for the trial court to deny Applicant’s
request to ask potential jurors if they
would have a bias in favor of police
officers because of their previous work in
that field.
ECF Nos. 16-4 at 409, 16-5 at 1-6. After briefing and
an evidentiary hearing, the PCR court denied his
petition on February 13, 2013. ECF No. 16-14 at 14070. He then filed a motion to alter or amend, which
was also denied.
H. First PCR Appeal
Owens, through Weyble and Paavola, then filed a
petition for a writ of certiorari to the South Carolina
Supreme Court, raising the following issues:
I.
Whether Petitioner’s right to effective
assistance of counsel was violated as a
result of trial counsel’s failure to
investigate and present available and
compelling mitigating evidence from
Petitioner’s entire life history?
II. Whether Petitioner’s right to effective
assistance of counsel was violated as a
result of trial counsel’s failure to raise
readily available challenges to a variety
of evidence offered by the prosecution in
support of its case for a sentence of
death?
App-71
III. Whether Petitioner’s rights under the
Eighth and Fourteenth Amendments and
S.C. Code Ann. § 16-3-25(C)(1) were
violated as a result of the prosecutions’
improper closing argument and improper
statements during jury selection, and
whether Petitioner’s right to effective
assistance of counsel was violated as a
result of trial counsel’s failure to object to
the same?
IV. Whether Petitioner was prejudiced as a
result of the cumulative effect of trial
counsel’s multiple deficient acts and
omissions?
ECF No. 15-9 at 9. On June 17, 2015, the South
Carolina Supreme Court denied his petition. He filed
a petition for rehearing, which was also denied.
I.
Federal Habeas Action
Owens commenced the instant action on July 27,
2015 by filing a motion for a stay of execution and a
motion to appoint counsel. ECF No. 1. The Court
stayed Owens’ execution pending appointment of
counsel and the filing of a habeas petition. ECF No. 9.
On July 11, 2016, Owens’ appointed counsel filed a
petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. ECF No. 83. The Court then stayed his
execution pending resolution of his habeas petition.
ECF No. 100. On September 8, 2016, he filed an
amended petition. ECF No. 117. On October 18, 2016,
the magistrate judge stayed the case pending
resolution of a second PCR action that he filed in state
court. ECF No. 124.
App-72
J.
Second PCR Action
On July 20, 2016, shortly after Owens filed his
federal habeas petition, he filed a second PCR action
in state court, raising the following claims:
(a) Trial and collateral counsel were
ineffective to the prejudice of the
applicant by failing to investigate,
develop and present evidence of
institutional negligence which would
have mitigated the State’s theory that
the in-custody death of Mr. Lee
conclusively
established
future
dangerousness and the only sentencing
option for the petitioner was death.
Evidence from expert witnesses available
at the time of the petitioner’s sentencing
trial demonstrated that institutional
negligence in failing to classify, and
detain the petitioner in accordance with
that classification, was the proximate
cause of the death of Mr. Lee. 5th, 6th,
8th and 15th Amendments to the
Constitution of the United States of
America; Skipper v South Carolina, 476
US 1 (1986).
(b) Trial and collateral counsel were
ineffective to the prejudice of the
applicant by failing to investigate,
develop and present objective and
scientific evidence of structural and
functional brain damage resulting from
early childhood trauma and materially
limiting the applicant’s ability to make
App-73
informed decisions, learn from past
behavior, and control impulses resulting
from recurrence of situation prompts in
daily living which were the same or
similar to those of his early childhood.
5th, 6th, 8th, and 14th Amendments to
the Constitution of the United States of
America; Wiggins v Smith, 539 US 510
(2003).
(c) Trial and collateral counsel were
ineffective to the prejudice of the
applicant by failing to investigate,
develop and present objective and
scientific evidence of structural and
functional brain damage resulting from a
history of epileptic grand mal seizures
and its impact upon the applicant’s
cognitive functioning and resulting
culpability for the crime of conviction. All
in violation of the Fifth, Sixth, Eighth,
Fourteenth
Amendments
to
the
Constitution of the United States of
America; and clearly established federal
law as announced by the Supreme Court
of the United States in Wiggins v Smith,
539 US 510 (2003).
(d) Trial and collateral counsel were
ineffective to the prejudice of the
applicant by failing to object to the court’s
recurring jury charge that a finding of life
without parole must be unanimous when
that charge was not in the sentencing
statute, was false, materially misleading,
App-74
coercive, abusive and irrelevant to the
sentencing function. (5th, 6th 8th and
14th Amendments to the Constitution of
the United States of America; (Winkler v
South Carolina not yet decided)
(e) Trial and collateral counsel were
ineffective to the prejudice of the
applicant by failing to investigate,
develop and present mitigation evidence
that the applicant suffered from repeated
early childhood trauma and sexual
abuse. These abusive experiences
resulted in organic brain injury,
ambiguous sexual identity, and created
within the applicant a sensitivity to
common adult situational prompts that,
in his case, lead to a recurrence of the
earlier trauma and extreme preemptive
fear aggression as the only behavioral
response known to the applicant. 5th,
6th, 8th, and 14th Amendments to the
Constitution of the United States of
America; Rompilla v Beard, 545 US 374
(2005).
(f) Trial, direct appellate and collateral
counsel were ineffective to the prejudice
of the applicant by failing to include as
reversible error an objection to the trial
court’s decision to allow testimony of incustody administrative rules violations
as aggravation evidence supporting a
sentence of death when those violations
were disproportionate to the crime for
App-75
which the jury was sentencing the
petitioner, did not result in injury, were
in
part
administrative
violations
common to every inmate and were not
characterological of the petitioner’s
propensity for future violence.
(g) Trial counsel duly requested that the
State disclose all evidence which might
be favorable to the defense. Nonetheless,
the State failed to disclose evidence that
impeaches material witnesses against
the applicant in violation of the Fifth,
Eighth and Fourteenth Amendments to
the Constitution of the United States of
America; Brady v Maryland, 373 US 83
(1963) and Wearry v Cain, 136 S. Ct. 1002
(2016).
Collateral
counsel
were
ineffective to the prejudice of the
applicant in failing to recognize that the
State did not disclose material items that
would have substantially improved the
mitigation case and changed crossexamination tactics had the materials
been timely disclosed.
(h) Trial and collateral counsel were
ineffective to the prejudice of the
applicant by failing to challenge the
State’s decision to seek the death penalty
as the decision was motivated by
arbitrary factors since the crime was
disproportionate to the rare and
exceptional case as required by the
narrowing features of Furman v Georgia
App-76
and Gregg v Georgia and the Fifth, Sixth,
Eighth and Fourteenth Amendments to
the Constitution of the United States of
America.
ECF No. 113-1 at 4-5. The PCR court denied his
petition on April 10, 2017. He did not file a direct
appeal. See ECF No. 143.
K. Resumption of Federal Habeas Action
After being informed of the conclusion of Owens’
second PCR action, the magistrate judge lifted the
stay in this case and briefing recommenced. ECF
No. 146. In his amended petition, he raises the
following issues, quoted verbatim:
EXHAUSTED GROUNDS FOR FEDERAL
HABEAS RELIEF
(1) Trial counsel was ineffective at
Petitioner’s
2006
sentencing
proceeding for failing to investigate
and
present
available
and
compelling mitigating evidence.
(2) Trial counsel was ineffective at
Petitioner’s
2006
sentencing
proceeding for failing to object to the
list of prison disciplinary infractions
on Confrontation Clause and Due
Process, Eighth Amendment and
Proportionality Grounds.
(3) Trial counsel was ineffective at
Petitioner’s
2006
sentencing
proceeding for failing to object or
request proper instructions from the
App-77
court regarding the crime scene
video.
(4) Trial counsel was ineffective at
Petitioner’s
2006
sentencing
proceeding for failing to object to
irrelevant,
inflammatory,
and
prejudicial testimony from both
Officer Joe Wood, who testified
Petitioner gave him “cold chills,” and
Juliana Christy, a victims’ advocate
who testified this case was “the
hardest case she ever had to work
on” in fifteen years at the Greenville
County Sheriff’s Department.
(5) Petitioner’s rights under the Eighth
and Fourteenth Amendments were
violated as a result of the
prosecution’s
improper
closing
argument and improper statements
during jury selection, and trial
counsel was ineffective for failing to
object to the same.
UNEXHAUSTED
GROUNDS
FEDERAL HABEAS RELIEF
FOR
Martinez v. Ryan, 132 S. Ct. 1302 (2012)
(6) Trial and collateral counsel were
ineffective to the prejudice of the
applicant by failing to investigate,
develop and present evidence of
institutional negligence which would
have mitigated the State’s theory
that the in-custody death of Mr. Lee
conclusively
established
future
App-78
dangerousness
and
the
only
sentencing option for the petitioner
was death. Evidence from expert
witnesses available at the time of the
petitioner’s
sentencing
trial
demonstrated that institutional
negligence in failing to classify, and
detain the petitioner in accordance
with that classification, was the
proximate cause of the death of Mr.
Lee. 5th, 6th, 8th and 14th
Amendments to the Constitution of
the United States of America;
Skipper v South Carolina, 476 US 1
(1986).
(7) Trial and collateral counsel were
ineffective to the prejudice of the
applicant by failing to investigate,
develop and present objective and
scientific evidence of structural and
functional brain damage resulting
from early childhood trauma and
materially limiting the applicant’s
ability to make informed decisions,
learn from past behavior, and control
impulses resulting from recurrence
of situation prompts in daily living
which were the same or similar to
those of his early childhood. 5th, 6th,
8th, and 14th Amendments to the
Constitution of the United States of
America; Wiggins v Smith, 539 US
510 (2003).
App-79
(8) Trial and collateral counsel were
ineffective to the prejudice of the
applicant by failing to object to the
court’s recurring jury charge that a
finding of life without parole must be
unanimous when that charge was
not in the sentencing statute, was
false,
materially
misleading,
coercive, abusive and irrelevant to
the sentencing function. (5th, 6th 8th
and 14th Amendments to the
Constitution of the United States of
America; (Winkler v South Carolina
not yet decided)
(9) Trial and collateral counsel were
ineffective to the prejudice of the
applicant by failing to investigate,
develop and present mitigation
evidence that the applicant suffered
from repeated early childhood
trauma and sexual abuse. These
abusive experiences resulted in
organic brain injury, ambiguous
sexual identity, and created within
the applicant a sensitivity to
common adult situational prompts
that, in his case, lead to a recurrence
of the earlier trauma and extreme
preemptive fear aggression as the
only behavioral response known to
the applicant. 5th, 6th, 8th, and 14th
Amendments to the Constitution of
the United States of America;
App-80
Rompilla v Beard, 545 US 374
(2005).
(10) Trial, direct appellate and collateral
counsel were ineffective to the
prejudice of the applicant by failing
to include as reversible error an
objection to the trial court’s decision
to allow testimony of in-custody
administrative rules violations as
aggravation evidence supporting a
sentence of death when those
violations were disproportionate to
the crime for which the jury was
sentencing the petitioner, did not
result in injury, were in part
administrative violations common to
every inmate and were not
characterological of the petitioner’s
propensity for future violence.
(11) Trial counsel duly requested that the
State disclose all evidence which
might be favorable to the defense.
Nonetheless, the State failed to
disclose evidence that impeaches
material witnesses against the
applicant in violation of the Fifth,
Eighth and Fourteenth Amendments
to the Constitution of the United
States of America; Brady v
Maryland, 373 US 83 (1963) and
Wearry v Cain, 136 S. Ct. 1002
(2016). Collateral counsel were
ineffective to the prejudice of the
App-81
applicant in failing to recognize that
the State did not disclose material
items that would have substantially
improved the mitigation case and
changed cross-examination tactics
had the materials been timely
disclosed.
(12) Trial and collateral counsel were
ineffective to the prejudice of the
applicant by failing to challenge the
State’s decision to seek the death
penalty as the decision was
motivated by arbitrary factors since
the crime was disproportionate to
the rare and exceptional case as
required by the narrowing features
of Furman v Georgia and Gregg v
Georgia and the Fifth, Sixth, Eighth
and Fourteenth Amendments to the
Constitution of the United States of
America.
ECF No. 117 at 6-7. The State filed a return to the
amended petition and a second motion for summary
judgment. ECF Nos. 147, 148. Owens filed a response
in opposition to the summary judgment motion, ECF
No. 174, and the State filed a reply, ECF No. 184.
On January 12, 2018, the magistrate judge issued
a Report and Recommendation (R&R), in which she
recommended granting the State’s summary
judgment motion and denying Owens’ petition. ECF
No. 193. Owens filed objections to the R&R, ECF
No. 199, and the State filed a reply to those objections,
ECF No. 202. Additionally, the State filed its own
App-82
objections to the R&R, 2 ECF No. 198, and Owens filed
a reply to those objections, ECF No. 201.
This matter is now ripe for decision.
II. Standards of Review
A. Report and Recommendation
The magistrate judge issued her R&R in
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02(B)(2)(c) (D.S.C.). The R&R is only a
recommendation to the Court and has no presumptive
weight. The responsibility to make a final
determination rests with the Court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The Court
conducts a de novo determination of any portion of the
R&R to which a specific objection is made, and the
Court may accept, reject, or modify, in whole or in
part, the magistrate judge’s recommendation, or may
recommit the matter to the magistrate judge with
instructions. 28 U.S.C. § 636(b)(1). In the absence of
an objection, the Court is not required to give any
explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).
B. Summary Judgment
Summary judgment is appropriate when the
materials in the record show that “there is no genuine
dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The Court must view the evidence in the light
2 The State does not object to the R&R’s ultimate conclusion
and instead merely objects to the extent that there were
additional facts and law that were not included in the R&R.
Because the State does not object to the ultimate conclusion, the
Court will not separately address those objections.
App-83
most favorable to the non-moving party and draw all
justifiable inferences in his favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material
if it “might affect the outcome of the suit under the
governing law.” Id. at 248.
The party seeking summary judgment bears the
initial burden of demonstrating to the Court that there
is no genuine issue of material fact. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once the movant
has made this threshold showing, in order to survive
summary judgment, the nonmoving party must
demonstrate that specific, material facts exist that
give rise to a genuine issue. See id. at 324.
C. Habeas Corpus Review
1.
Deference to state courts
Any claim in a § 2254 petition that was
adjudicated on the merits in a state court proceeding
may not be granted unless the state court’s
adjudication of the claim
(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).
To meet this standard, the state court must have
“arrive[d] at a conclusion opposite to that reached by
[the United States Supreme] Court on a question of
App-84
law or . . . decide[d] a case differently than [the United
States Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 413 (2000). This is a “highly deferential standard
for evaluating state-court rulings, which demands
that state-court decisions be given the benefit of the
doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(citations omitted). “If this standard is difficult to
meet, that it because it was meant to be.” Harrington
v. Richter, 562 U.S. 86, 102 (2011).
2.
Ineffective assistance of counsel
Criminal defendants have a constitutional right
to the assistance of counsel. U.S. Const. amend. VI.
“[T]he right to counsel is the right to the effective
assistance of counsel.” Strickland v. Washington, 466
U.S. 668, 686 (1984) (citation omitted).
To prevail on an ineffective assistance claim, a
petitioner must show that (1) counsel’s acts or
omissions fell below an objective standard of
reasonableness; and (2) there is a reasonable
probability that, but for counsel’s errors, the result of
the proceeding would have been different. See id. at
687-88, 694. Failure of proof on either prong ends the
matter. United States v. Roane, 378 F.3d 382, 404 (4th
Cir. 2004). There is “a strong presumption that
counsel’s conduct falls within the wide range of
professional assistance,” and a petitioner has the
burden of overcoming this presumption. Strickland,
466 U.S. at 689. “Even under de novo review, the
standard for judging counsel’s representation is a
most deferential one. Unlike a later reviewing court,
the attorney observed the relevant proceedings, knew
of materials outside the record, and interacted with
App-85
the client, with opposing counsel, and with the judge.
It is all too tempting to second-guess counsel’s
assistance after conviction or adverse sentence.”
Harrington, 562 U.S. at 105 (citing Strickland, 466
U.S. at 689). “The question is whether an attorney’s
representation amounted to incompetence under
prevailing professional norms, not whether it deviated
from best practices or most common custom.” Id.
(citing Strickland, 466 U.S. at 690). An ineffective
assistance of counsel allegation requires the
submission of specific facts in support of the claim. See
United States v. Witherspoon, 231 F.3d 923, 926 (4th
Cir. 2000).
When Strickland is applied in the federal habeas
context, it is an even taller hurdle to overcome. “The
standards created by Strickland and § 2254(d) are
both highly deferential, and when the two apply in
tandem, review is doubly so.” Harrington, 562 U.S. at
105 (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. However, if the
petitioner demonstrates that there is no reasonable
argument that counsel satisfied Strickland, then relief
would be appropriate.
3.
Exhaustion and procedural default
A habeas petitioner may not obtain relief in
federal court unless he has exhausted his state court
remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the
exhaustion requirement, a habeas petitioner must
fairly present his claim to the state’s highest court.”
Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997),
App-86
abrogated on other grounds by Miller-El v. Dretke, 545
U.S. 231 (2005). “To exhaust a claim, the petitioner
must present the state court with ‘both the operative
facts and the controlling legal principles.’” Gray v.
Zook, 806 F.3d 783, 798 (4th Cir. 2015) (quoting
Winston v. Kelly, 592 F.3d 535, 549 (4th Cir. 2010)).
A petitioner’s failure to raise in state court a claim
asserted in a § 2254 petition “implicates the
requirements in habeas of exhaustion and procedural
default.” Gray v. Netherland, 518 U.S. 152, 161 (1996).
“[A] habeas petitioner who has failed to meet the
State’s procedural requirements for presenting his
federal claims has deprived the state courts of an
opportunity to address those claims in the first
instance,” and has therefore procedurally defaulted
those claims. Coleman v. Thompson, 501 U.S. 722, 732
(1991). “[T]he procedural bar that gives rise to
exhaustion provides an independent and adequate
state-law ground for the conviction and sentence, and
thus prevents federal habeas corpus review of the
defaulted claim, unless the petitioner can demonstrate
cause and prejudice for the default.” Gray, 518 U.S. at
162.
In general, a federal court will not entertain a
procedurally defaulted claim as long as the state’s
procedural requirement barring the court’s review is
adequate to support the judgment and independence
of federal law. See Martinez v. Ryan, 566 U.S. 1, 9-10
(2012). However, “[t]he doctrine barring procedurally
defaulted claims from being heard is not without
exceptions. A prisoner may obtain federal review of a
defaulted claim by showing cause for the default and
prejudice from a violation of federal law.” Id. at 10.
App-87
A federal habeas petitioner cannot claim
ineffective assistance of counsel in state postconviction proceedings to establish cause for default
because there is no constitutional right to counsel in
state post-conviction proceedings. See Coleman v.
Thompson, 501 U.S. 722, 752 (1991). However,
Martinez recognized a “narrow exception” to Coleman,
specifically that “[i]nadequate assistance of counsel at
initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of
ineffective assistance at trial.” 566 U.S. at 9. The
Fourth Circuit has summarized the exception
recognized in Martinez as follows:
[A] federal habeas petitioner who seeks to
raise an otherwise procedurally defaulted
claim
of
ineffective-assistance-of-trialcounsel before the federal court may do so
only if: (1) the ineffective-assistance-of-trialcounsel claim is a substantial one; (2) the
“cause” for default “consists of there being no
counsel or only ineffective counsel during the
state collateral review proceeding”; (3) “the
state collateral review proceeding was the
initial review proceeding in respect to the
ineffective-assistance-of-trial-counsel claim”;
and (4) state law “requires that an ineffectiveassistance-of-trial-counsel claim be raised in
an initial-review collateral proceeding.”
Fowler v. Joyner, 753 F.3d 446, 461 (4th Cir. 2014)
(internal brackets omitted) (quoting Trevino v. Thaler,
569 U.S. 413, 423 (2013)). Essentially, if initial-review
collateral counsel was constitutionally ineffective in
failing to raise the constitutional ineffectiveness of
App-88
trial counsel, that ineffectiveness by collateral counsel
may excuse the petitioner’s procedural default of a
substantial claim of trial counsel’s ineffectiveness.
III. Discussion
Owens raised twelve grounds for relief in his
habeas petition. The Court will address each one.
A. Ground 1 - Failure to investigate and
present mitigating evidence
Ground 1 of the amended petition is as follows:
Trial counsel was ineffective at Petitioner’s
2006 sentencing proceeding for failing to
investigate and present available and
compelling mitigating evidence.
ECF No. 117 at 6. Evaluating this claim requires
consideration of the evidence sentencing counsel did
present and what Owens says they should have
presented.
1.
Overview of mitigation case
Owens’ mitigation case consisted of testimony
from five individuals: (1) Marjorie Hammock, a social
historian; (2) Fain Maag, Owens’ third-grade teacher;
(3) Dr. Tora Brawley, a neuropsychologist; (4) Dr.
Thomas Cobb, a forensic psychiatrist; and (5) Dr.
Donna Schwartz-Watts, a forensic psychiatrist.
a.
Marjorie Hammock
Hammock testified about Owens’ troubled
upbringing, including that he was born to an 18-yearold woman who was unable to properly care for Owens
and his four siblings, that he witnessed and personally
experienced significant violence at the hands of his
biological father and then his step-father, that a
App-89
number of his family members (both male and female)
were very violent and served time for violent offenses,
that he was removed from his house at a young age
and placed in the foster system for a period of time
because of abuse and neglect, that he was taught to be
violent in order to survive, that he had learning
disabilities that resulted in significant school
difficulties, that his family lived a marginal existence
in terms of economics and education, and that there is
a correlation between this type of upbringing and a
person who was raised in that environment turning to
violence. She also explained Owens’ family tree in
some detail, pointing out that a significant number of
his family members had been incarcerated, that there
was alcohol and drug abuse throughout the family,
and that the family members had very low levels of
education. See ECF No. 16-3 at 466-84.
b.
Fain Maag
Maag testified about her experiences with Owens
as his third-grade teacher. She told a story about how,
on his first day of school, he threw a desk across the
room and asked her what she was going to do about it.
She also described how he had a very difficult time on
the playground—his peers, recognizing that he was
smaller than they were, would chase him around and
he would run to her for help. She also testified about
him frequently being chased home from school and
that his step-father would lock him out of the house,
telling him that he had to fight the other boys so he
would grow up to be a man. His problems at home
were well-known to her, as she described never having
a parent-teacher conference, bringing him a turkey on
Thanksgiving, and giving him Christmas gifts. She
App-90
further testified about his learning deficiencies,
particularly his difficulty reading and poor social
skills. However, she did note that he was “one heck of
a runner,” that he was an artist, and that he used
words quite well, even though he did not necessarily
spell them correctly. See ECF No. 16-3 at 485-89; ECF
No. 16-4 at 4-5.
c.
Dr. Tora Brawley
Dr. Brawley testified about her evaluation of
Owens’ mental abilities. She testified that his verbal
memory and verbal learning were below what she
would expect, and that he had a documented learning
disability, problems with impulsivity, and poor
attention. However, she noted that he had improved
his IQ score by a significant margin through his own
efforts. She testified that many of his problems were
documented as early as elementary school and that
there were indications that he had lifelong problems
with depression. She explained that childhood
depression can manifest itself as aggression,
irritability, impulsivity, and resistance. She also
referred to a head injury he suffered as a child, though
she could not specifically point to any brain
malfunction as a result of that injury. See ECF No. 164 at 6-18.
d.
Dr. Thomas Cobb
Dr. Cobb testified about his impressions of Owens
after treating him over the course of about one year
while he was at Lieber Correctional Institution within
the South Carolina Department of Corrections (SCDC)
system. Dr. Cobb testified that his first interaction
with Owens was when he reached out to Dr. Cobb for
help because Owens had been getting in a lot of
App-91
trouble in prison and wanted help staying out of
trouble. Dr. Cobb said that Owens was a likeable
person, was very intellectual and philosophical, and
was someone Dr. Cobb enjoyed talking to. He
discussed some of the troubling aspects of Owens’
childhood, including that he had a rough childhood
and that most or all of his family members were
incarcerated.
Dr. Cobb diagnosed Owens with Impulse Control
Disorder (Not Otherwise Specified) and Anxiety
Disorder (Not Otherwise Specified), and Dr. Cobb
explained to the jury what those diagnoses meant. He
also explained the medications that he prescribed for
Owens for the purpose of allowing his mind to stay
calm and give him time to think before reacting. Dr.
Cobb felt that this treatment was helpful and that
Owens’ prognosis would continue to improve if he
stayed on the medication. However, Dr. Cobb
acknowledged on cross-examination that, after the
medication regime started and after he had been
treating Owens for about six months, he possessed in
his cell a 12-inch shank and then, six weeks later, an
8½-inch shank. See ECF No. 16-4 at 18-38.
e.
Dr. Donna Schwartz-Watts
Finally, Dr. Schwartz-Watts testified about her
evaluation of Owens. She spent about ten hours with
him over the course of three visits. She also reviewed
a great number of his records, including the following:
Department of Juvenile Justice (DJJ) treatment
records, disciplinary reports, and write-ups; SCDC
disciplinary reports; and medical records (both while
in custody and out of custody). She also spoke with a
number of people in his life, including his mother,
App-92
Maag, Dr. Brawley, Dr. Cobb, the forensic
psychiatrists at DJJ, and some of his past doctors.
Dr. Schwartz-Watts discussed some of Owens’
traumatic childhood experiences, including that he
suffered physical abuse, that he witnessed his
grandmother shoot a family member, that he
frequently did not go to school because he wanted to
stay home to check on his mother (who was physically
abused by his father and step-father), and that he
witnessed his step-father chase his mother through
the house with a machete.
Regarding Owens’ time at DJJ, Dr. SchwartzWatts noted that, even though he had significant
disciplinary problems, he did well with the ROTC
program and was promoted to the highest rank
available at his campus.
Dr. Schwartz-Watts diagnosed Owens with
Attention Deficit Disorder (ADD), Dysthymic Disorder
(chronic depression), and Antisocial Personality
Disorder. Regarding the ADD diagnosis, she testified
that he began the testing process for ADD while a
child, but he never completed the full assessment and
was never given any medication for it. She concluded
that the ADD symptoms were in partial remission,
noting that he could now pay attention and had taught
himself Arabic, Swahili, and sign language, and was
studying French. She also said that he was reading
scholarly works and was teaching other inmates how
to read. Regarding the depression diagnosis, she said
that he had experienced symptoms of depression
beginning at least in 1995 when he was at DJJ and
that he began receiving treatment for major
depression in 1997. But when he transferred to SCDC
App-93
upon turning 18 years old, he was not continued on his
medications even though he had significantly
improved on them and wanted to continue taking
them. He also asked SCDC for psychiatric help at that
time, but did not receive it. However, he had improved
since he began receiving treatment from Dr. Cobb. She
said that Owens was still impulsive, but not as much
as he had been in the past. Finally, she testified that
he would be able to receive appropriate treatment
while in SCDC custody. See ECF No. 16-4 at 38-79.
2.
Owens’ claims
Owens asserts that there were two primary areas
of mitigation that sentencing counsel should have
presented: (1) a more extensive presentation by
Hammock, the social historian; and (2) evidence
regarding his experiences while in DJJ.
The gist of Owens’ complaint regarding
sentencing counsel’s mitigation presentation is that it
was too short and left out many important details. He
notes in particular that Hammock’s testimony was
significantly shorter than it had been in the two prior
sentencing proceedings. In support of his argument,
he relies in large part on the PCR testimony of Dr.
James Garbarino, who was admitted as an expert on
the psychological effects of trauma and violence on
youths. He based his testimony and opinions on
various reports and other paperwork, as well as a fourhour conversation with Owens. Dr. Garbarino testified
on multiple topics, including the general effects of
chronic trauma on children and risk factors that
increase a person’s propensity to engage in violence.
As to Owens in particular, Dr. Garbarino testified that
Owens’ risk factors included parental abandonment
App-94
and neglect, living in a violent neighborhood, an
extensive family history of violence, school difficulties
and learning disabilities, exposure to drug and alcohol
abuse, and experiencing and witnessing sexual abuse.
Dr. Garbarino testified in significant detail about
Owens’ childhood and young adult life, which included
a number of incidences of physical and sexual abuse
that Owens allegedly suffered as a child and while
incarcerated in local jails, DJJ, and SCDC. However,
Dr. Garbarino acknowledged on cross-examination
that there was no corroborating evidence to support
the sexual abuse allegations. In particular, there was
no indication in any of his custodial records that
Owens reported these alleged assaults to anyone. See
ECF No. 16-6 at 181-286.
3.
PCR order
In the PCR order, the judge concluded that Owens
could not establish ineffective assistance of counsel
because sentencing counsel “properly conducted a
thorough investigation into potential mitigating
evidence and chose to present evidence that it thought
would favor Owens at trial.” ECF No. 16-14 at 161.
The PCR court found legitimate reasons that
Hammock’s testimony was shorter than in the prior
sentencing hearings, including that part of her prior
testimony was no longer relevant. Id. at 162. The PCR
court further found that Owens was not prejudiced by
any omissions from her testimony, as the other
witnesses addressed those topics that she did not.
As to the evidence regarding Owens’ experiences
at DJJ, the PCR court noted that “[a]lthough Owens
met with six defense attorneys, two mitigation
investigators, one private investigator, and a number
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of mental health experts before meeting with
Garbarino in 2009, he failed to inform any of these
individuals of this alleged abuse.” ECF No. 16-14 at
164. The PCR court further noted that there were no
records to support the allegations of abuse. Id. The
PCR court also credited sentencing counsel’s
testimony about why they did not want to present
mitigation evidence regarding Owens’ time at DJJ,
specifically finding that doing so “would have come at
the great cost of opening the door for the State to
introduce evidence that would characterize Owens as
a consistently violent criminal who would be a future
danger to society and who would not adapt well to
prison.” Id. at 166.
4.
R&R
In the R&R, the magistrate judge concluded that
the PCR court’s analysis regarding Hammock’s
testimony did not involve an unreasonable application
of federal law on either Strickland factor. In
particular, the magistrate judge noted that sentencing
counsel’s PCR testimony “reveal[ed] careful planning,
which incorporated Hammock’s own analysis of how
effective her past testimony had been.” ECF No. 193
at 22. The magistrate judge further concluded that “it
was not unreasonable for the PCR court to conclude
that ‘Owens’ trial counsel made the strategic decision
not to elicit testimony from Hammock that was no
longer relevant.’” Id. at 23 (quoting ECF No. 16-14 at
162). The magistrate judge also found that “there is
support in the record for the PCR court’s finding that
sentencing counsel presented a cogent mitigation case
through their five witnesses.” Id. at 28. Finally, the
magistrate judge found that “[t]he PCR court did not
App-96
unreasonably misapply federal law in finding [Owens]
was not prejudiced by any alleged failure on
sentencing counsel’s part.” Id. at 29.
Regarding the DJJ evidence, the magistrate judge
again concluded that the PCR court’s analysis did not
involve an unreasonable application of federal law
regarding either Strickland factor. The magistrate
judge recognized that sentencing counsel were aware,
at least to some extent, of Owens’ experiences while in
DJJ, noting sentencing counsel’s testimony at the PCR
hearing that “[w]e were clearly looking at that. Dr.
Schwartz-Watts had his DJJ records. [Owens] was at
DJJ at a time when DJJ in Columbia was a mess.” Id.
at 31 (quoting ECF No. 16-6 at 105). The magistrate
judge also noted sentencing counsel’s testimony that
he reviewed Owens’ DJJ records, but that he viewed
them as a “two-edge sword” because he “wasn’t
particularly happy with the reason why he was in
DJJ.” Id. (citing ECF No. 16-6 at 106-07).
The magistrate judge also recognized some
apparent confusion in the PCR order regarding its
discussion of Dr. Garbarino’s testimony, 3 but
determined that the PCR order’s conclusion was not
based solely on that finding and that the overall
conclusion was amply supported by the record. Id. at
32-34. Thus, the magistrate judge concluded that “the
PCR court’s ultimate conclusion that sentencing
counsel were not deficient was not ‘based on an
unreasonable determination of the facts in light of the
3 The PCR order repeatedly refers to allegations of ineffective
assistance based on a decision not to present Dr. Garbarino’s
testimony at sentencing, but he was not involved in the case at
the time of sentencing; he only became involved at the PCR stage.
App-97
evidence presented in the State court proceeding.’” Id.
at 34 (quoting 28 U.S.C. § 2254(d)(2)).
5.
Objections
In Owens’ objections, he argues that the R&R
erroneously concluded that sentencing counsel were
not ineffective. He asserts that there was “reasonably
available and readily accessible” evidence that should
have been presented at sentencing that “was lurid,
compelling and humanizing.” ECF No 199 at 4.
Specifically, he argues that sentencing counsel should
have presented evidence regarding his homosexual
prostitution and sexual abuse, as well as physical
abuse he suffered in utero and as a child.
Owens relies in large part on Dr. Garbarino’s PCR
testimony. But, as noted above, Dr. Garbarino only
became involved in the case after sentencing, so his
testimony would not have been available to sentencing
counsel. Thus, it appears that Owens’ argument is
that the facts underlying Dr. Garbarino’s testimony,
not his testimony itself, should have been offered in
mitigation.
Owens also references an incident in September
1997 (shortly after his release from SCDC custody, but
before the Graves murder) where Reverend Thomas
Davenport “was cruising the street looking for sex
with a male,” and was shot twice in the head from
inside his vehicle, implicitly by Owens. Reverend
Davenport survived the shooting. Owens says that an
arrest warrant that was issued for him for that
incident was closed after his arrest for the Graves
murder. He says that sentencing counsel should have
investigated this incident further for presentation at
sentencing. Id. at 9.
App-98
He summarizes his objection by asserting that he
was prejudiced by sentencing counsel’s failure to
introduce a more vivid picture of his life history
because doing so would have created a reasonable
probability that at least one juror would have voted for
a life sentence.
6.
Analysis
At the outset, the Court notes the deferential
standard of review in this matter as set forth in the
caselaw. The question before the Court is not whether
sentencing counsel could have or should have
presented a more detailed mitigation presentation.
The question the caselaw raises is “whether there is
any reasonable argument that counsel satisfied
Strickland’s deferential standard” by presenting the
mitigation case that they did. Harrington, 562 U.S. at
105. The Court answers that question in the
affirmative.
As the magistrate judge recognized, sentencing
counsel’s investigation “reveal[ed] careful planning,
which incorporated Hammock’s own analysis of how
effective her past testimony had been.” ECF No. 193
at 22. While Hammock’s testimony was not as detailed
as it had been in the prior two sentencings, she and
other witnesses covered the same ground that she had
covered in her prior testimony. 4 The jury heard about
many different aspects of Owens’ life, including the
violence he personally suffered and witnessed, the
lengthy and violent criminal records of his family
members, being taught at a young age to handle his
4 The longer, more detailed presentations at the two prior
sentencing proceedings also resulted in death sentences.
App-99
problems through violence, his learning disabilities
and school difficulties, his mental health issues, and
the correlation between these types of issues and a
person resorting to violence in adulthood. The fact
that sentencing counsel could have introduced some
additional details that would have painted an even
more vivid picture of his life does not mean that their
decision not to introduce those additional details “so
undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having
produced a just result.” Strickland, 466 U.S. at 686;
see also Moody v. Polk, 408 F.3d 141, 154 (4th Cir.
2005) (“[P]rejudice does not exist simply because more
corroborating
evidence
could
have
been
presented. . . . Given that the prosecutor did not
present any evidence to contradict the evidence of
abuse, there is simply no reasonable probability that
the jurors doubted the existence of abuse and would
have come to a different verdict had they been
presented further evidence that abuse in fact
occurred.”).
Owens focuses a significant portion of his
briefings on the argument that counsel should have
presented evidence regarding the sexual abuse he
allegedly suffered in his early adolescence and while
in DJJ. However, he does not dispute that there was
no record of these assaults in any of his records and
that he denied being a sexual assault victim when
asked. As the magistrate judge recognized, “[i]t is
difficult to fathom how counsel could have been
deficient for failing to search for or present evidence
about incidents that Owens never shared with them
or his mitigation team and that they had no reason to
App-100
know of otherwise even after an extensive and
thorough investigation.” ECF No. 193 at 34.
Owens asserts that the R&R would “demand proof
in the form of an institutional incident report from
DJJ or the statement of an eyewitness of this sexual
assault before considering that it unreasonably
determined this matter factually,” and that it “would
mandate that [he] hector and cajole his capital counsel
and explain to them what they could find and where
to find it in presenting his mitigational case.” ECF
No. 199 at 6-7. He also asserts that “the PCR Court
unreasonably applied relevant law by requiring [him]
to provide written documentation of his own sexual
abuse at DJJ.” Id. at 6. These statements are not
supported by the analysis in the R&R and PCR order.
The R&R appropriately recognized that
sentencing counsel cannot be faulted for failing to
undercover evidence that they had no reason to believe
existed—there was no evidence of sexual abuse in his
records and Owens denied experiencing it when
questioned by the mitigation team. Far from requiring
the submission of written documentation or requiring
him to “hector and cajole” sentencing counsel, id. at 7,
the R&R and PCR court properly refused to blame
sentencing counsel for failing to uncover something
that he denied occurred and for which there was no
evidence in his records, aside from sentencing
counsel’s general knowledge that all was not well at
DJJ during that time period. See Strickland, 466 U.S.
at 691 (“The reasonableness of counsel’s actions may
be determined or substantially influenced by the
defendant’s own statements or actions. . . . And when
a defendant has given counsel reason to believe that
App-101
pursuing certain investigations would be fruitless or
even harmful, counsel’s failure to pursue those
investigations may not later be challenged as
unreasonable.”).
The fact that Owens told Dr. Garbarino about
these experiences at a much later time is not relevant
to the analysis. The Court acknowledges Owens’
argument that there may well be factors that would
make it difficult for a person in his position to admit
having been sexually assaulted, but that cannot form
the basis of a finding of ineffective assistance of
counsel. A habeas petitioner cannot withhold relevant
information from his counsel and mitigation team, and
then spring it upon the court in a habeas petition in
an attempt to overturn his sentence. See DeCastro v.
Branker, 642 F.3d 442, 456 (4th Cir. 2011) (“[T]he
state court did not act unreasonably in refusing
Petitioner’s attempt to upend his conviction and
sentence based on the information that he failed to
timely provide to counsel.”).
Owens also discusses the shooting of Reverend
Davenport, asserting that this information should
have been presented to the jury. As mentioned above,
this shooting resulted in an arrest warrant being
issued for Owens, but ultimately no charge or
conviction, as the case was apparently dropped after
he was arrested for the Graves murder. It is not clear
why he believes that he would have been less likely to
receive a death sentence if he had admitted to the
attempted murder of a clergyman during the short
period between his release from prison and the Graves
App-102
murder. 5 There is certainly a “reasonable argument
that counsel satisfied Strickland’s deferential
standard” in not putting this matter in front of the
jury. Harrington, 562 U.S. at 105.
For these reasons, Owens has failed to establish
that the PCR court’s denial of his claims in Ground 1
was contrary to or involved an unreasonable
application of clearly established federal law, or was
the result of unreasonable factual findings. See 28
U.S.C. § 2254(d); Harrington, 562 U.S. at 101.
Accordingly, the Court concludes that he has not met
his burden and is therefore not entitled to relief on
Ground 1.
B. Ground 2 - Failure to object to admission
of prison disciplinary infractions
Ground 2 of the amended petition is as follows:
Trial counsel was ineffective at Petitioner’s
2006 sentencing proceeding for failing to
object to the list of prison disciplinary
infractions on Confrontation Clause and Due
Process,
Eighth
Amendment
and
Proportionality Grounds.
ECF No. 117 at 6.
1.
Owens’ claims
At sentencing, the State attempted to introduce,
through an SCDC records custodian, a list of Owens’
prison disciplinary infractions. Sentencing counsel
objected based on the trustworthiness of the records,
but did not raise a Confrontation Clause objection. The
5 Owens refers to the shooting as an “amazing bit of insight into
[his] alter life.” ECF. No. 199 at 9.
App-103
trial court excluded a number of the infractions and
some specific details of others, but ultimately allowed
the State to introduce a list of twenty-eight infractions
that included such incidents as “throws hot water on
an inmate”; “stabs correctional officer Smith in the
face with a shank”; “stabs Undra Golden in the
shower”; possessing a shank on seven other occasions;
and multiple other assaults on officers, staff, and
inmates. ECF No. 16-3 at 458-60. Owens asserts that
sentencing counsel were ineffective in failing to object
based on Confrontation Clause grounds, and that if
sentencing counsel had objected, this evidence would
have been excluded, which would have resulted in a
different outcome at sentencing.
2.
PCR order
In the PCR order, the judge concluded that Owens
could not establish either deficient performance or
prejudice. ECF No. 16-14 at 157-160. As to deficient
performance, the court concluded that the records
were admissible under the business records exception
to the hearsay rule and that non-testimonial business
records do not implicate the Confrontation Clause. Id.
at 157-58. The court concluded that these records
“were not prepared in anticipation of producing
testimony at trial, but rather in accordance with South
Carolina statutory law for the administration of
prison affairs.” ECF No. 16-14 at 158-59. The PCR
court also cited Crawford v. Washington, 541 U.S. 36
(2004) for the proposition that business records are
non-testimonial and therefore not subject to
confrontation. Id. at 158 (citing Crawford, 541 U.S. at
56). As to prejudice, the court concluded that a
Confrontation Clause objection would have been
App-104
overruled and that it was harmless error in any event
because “the State introduced overwhelming evidence
of Owens’ future dangerousness, bad character, and
inability to adapt to prison life.” Id. at 160.
3.
R&R
In the R&R, the magistrate judge concluded that
Owens failed to show that the PCR court unreasonably
applied federal law in finding the disciplinary records
to be non-testimonial in nature and therefore exempt
from Confrontation Clause scrutiny. ECF No. 193 at
38-39. The magistrate judge noted that the PCR court
cited South Carolina statutory and case law requiring
SCDC to maintain inmate records to support the
argument that the primary purpose of the records was
not to “creat[e] an out-of-court substitute for trial
testimony.” Michigan v. Bryant, 562 U.S. 344, 358
(2011). The magistrate judge further noted that
Owens did not point to any Supreme Court case to the
contrary. Thus, the magistrate judge concluded that
the PCR court did not unreasonably apply federal law
in determining that the prison disciplinary records
were non-testimonial in nature. ECF No. 193 at 40.
As to the PCR court’s alternative finding that the
disciplinary records were cumulative to other evidence
already admitted, the magistrate judge found that
there was support in the record for that conclusion. In
particular, Major Thierry Nettles at Lieber
Correctional Institution testified that Owens was
“assaultive, destructive, and damaging . . . bar none,
my most problematic inmate,” and Dr. SchwartzWatts testified regarding his extensive history of
prison disciplinary infractions and she was questioned
about the details of some of them. Id. at 40-41.
App-105
Finally, the magistrate judge concluded that, even
if de novo review applied, Owens still would not be
entitled to relief because the Confrontation Clause
does not apply at sentencing, including capital
sentencing. Id. at 41 (citing United States v. Umaña,
750 F.3d 320, 346 (4th Cir. 2014)).
4.
Objections
In Owens’ objections, he relies in large part on the
Supreme Court’s decision in Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009) for the proposition
that the prison disciplinary records were testimonial
in nature and, thus, even if they qualified as business
records for hearsay purposes, they were still
inadmissible under Crawford. He also quotes at
length the opinion dissenting from the denial of
rehearing en banc in Umaña. Owens asserts that he
was prejudiced by the admission of these records
because “the jury was allowed to consider highly
prejudicial evidence that he had no opportunity to
subject to adversarial testing.” ECF No. 199 at 19. He
does not address the R&R’s conclusion that there is
support in the record for the PCR court’s alternative
finding that the disciplinary records were “cumulative
proof of aggravating factors.” ECF No. 16-14 at 160.
5.
Analysis
In arguing that his prison disciplinary records
were testimonial in nature, Owens relies in large part
on Melendez-Diaz, but that case is distinguishable.
Melendez-Diaz involved a question of whether, in a
drug case, state prosecutors could prove that the
substance at issue was cocaine by relying on affidavits
from forensic analysts, or whether the analysts were
subject to confrontation. 557 U.S. at 307. The Supreme
App-106
Court concluded that the affidavits were testimonial,
and the preparers therefore subject to confrontation,
because they were “‘made un
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