Petition for Writ of Certiorari — Gary DuBose Terry, Petitioner v. Bryan P. Stirling, Commissioner, South Carolina Department of Corrections, et al.

No.

(CAPITAL CASE)

IN THE

Supreme Court of the United States

GARY DUBOSE TERRY,

Petitioner,

v.

BRYAN P. STIRLING, Commissioner, South Carolina

Department of Corrections, and MICHAEL STEPHAN, Warden,

Broad River Correctional Institution,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH

CIRCUIT

APPENDIX

ELIZABETH FRANKLIN-BEST HANNAH FREEDMAN

Elizbeth Franklin-Best, P.C. Counsel of Record

2725 Devine Street BRENDAN VAN WINKLE

Columbia, S.C. 29205 Justice 360

(803) 445-1333 900 Elmwood Avenue

elizabeth@franklinbestlaw.com Suite 200

Columbia, S.C. 29201

hannah@justice360sc.org

brendan@justice360sc.org

Counsel for Gary D. Terry

Page(s)

APPENDIX TABLE OF CONTENTS

Appendix A:

Fourth Circuit Opinion, May 5, 2021 oo... cesesessesscsscsseesessesseseceeseesessssecsessesessesneeseeaes la

Appendix B:

District Court Order and Opinion, September 26, 2019.0... ccssesseseseeeseneeneeteeneenees 42a

Appendix C:

Order Denying Rehearing & Rehearing En Banc, June 2, 2021 oo... ceeeeeeeneereneenes 77a

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-3

GARY DUBOSE TERRY,

Petitioner — Appellant,

V.

BRYAN P. STIRLING, Commissioner, South Carolina Department of Corrections;

MICHAEL STEPHAN, Warden, Broad River Correctional Institution,

Respondents — Appellees.

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

Amicus Supporting Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence.

Richard Mark Gergel, District Judge. (4:12—cv—01798-RMG)

Argued: January 25, 2021 Decided: May 5, 2021

Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.

Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson

and Judge Keenan joined.

ARGUED: Hannah Lyon Freedman, JUSTICE 360, Columbia, South Carolina, for

Appellant. William Edgar Salter, Il, OFFICE OF THE ATTORNEY GENERAL OF

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SOUTH CAROLINA, Columbia, South Carolina, for Appellees. ON BRIEF: Elizabeth

Franklin-Best, ELIZABETH FRANKLIN-BEST, P.C., Columbia, South Carolina, for

Appellant. Alan Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney General,

Melody J. Brown, Senior Assistant Deputy Attorney General, Caroline Scrantom, Assistant

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,

Columbia, South Carolina, for Appellees. David B. Smith, Vice-Chair, Amicus Curiae

Committee, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

Alexandria, Virginia; Marc Elias, Stephanie Command, Courtney Elgart, Washington,

D.C., Reina Almon-Griffin, PERKINS COIE LLP, Seattle, Washington; Allison Franz,

John H. Blume, CORNELL CAPITAL PUNISHMENT CLINIC, Ithaca, New York, for

Amicus Curiae.

Unpublished opinions are not binding precedent in this circuit.

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DIAZ, Circuit Judge:

Gary DuBose Terry brutally murdered Urai Jackson after disconnecting her

telephone, breaking into her home, and raping her. He was convicted and sentenced to

death by a South Carolina jury. He appeals the district court’s grant of summary judgment

to the respondent state officials Bryan P. Stirling and Michael Stephan on his petition for

writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254.

Terry contends that his trial counsel provided ineffective assistance by failing to

thoroughly investigate and present available mitigating evidence of abuse Terry suffered

as a child and by failing to adequately question the venire during jury selection. Terry also

argues that counsel in his state postconviction proceeding were likewise ineffective by

failing to raise or investigate these claims.

The district court denied Terry’s petition, holding that Terry failed to demonstrate

cause to excuse the procedural default of the claims. We agree with the district court.

We again accentuate the high procedural bar erected by Martinez v. Ryan, 566 U.S.

1 (2012), which Terry fails to overcome because his claims are insubstantial. In so

concluding, we exercise our discretion to reconsider issues that we implicitly resolved in

Terry’s favor by granting his certificate of appealability. See Owens v. Stirling, 967 F.3d

396, 403 (4th Cir. 2020). Accordingly, we affirm.

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I.

A.

Terry’s convictions for murder, first degree burglary, first degree criminal sexual

conduct, and malicious injury to a telephone system trace back to May 1994. As recounted

by the Supreme Court of South Carolina:

The victim in this case, 47 year old Urai Jackson, was found beaten to death

in her Lexington County home on May 24, 1994. The window on the carport

door to her home had been broken out and the telephone wires had been

pulled from the phone box. [Jackson]’s mostly nude body was found in the

living room, and semen was found in her vagina. She had several blunt

trauma wounds to the head, and a number of defensive wound injuries. The

cause of death was blunt trauma with skull fracture and brain injury.

State v. Terry, 529 S.E.2d 274, 275-76 (S.C. 2000).

Terry’s fingerprints were found on Jackson’s telephone box, and the semen in

Jackson’s vagina contained Terry’s DNA. Terry also admitted to police that he had sex

with Jackson in her home and hit her with a blunt object.

B.

A Lexington County grand jury indicted Terry for the crimes described above. The

state thereafter filed notice that it would seek the death penalty.

Terry was represented by Elizabeth Fullwood, the Lexington County Public

Defender, and I. McDuffie Stone, a lawyer in private practice, who also served as a part-

time prosecutor in another state judicial circuit and represented an entity that insures state

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agencies and local governments.! They hired Vivian Massey, a mitigation specialist whom

Fullwood had used in previous cases, to gather background and social history information

from Terry.

During jury selection, Fullwood questioned a juror about her ability to impose either

a life or a death sentence, and attempted to question the juror about her views on psychiatry.

The court sustained the state’s objection to this line of questioning.

Fullwood then questioned the juror about mitigation more generally, but again faced

an objection when she began a question with “one reason to lessen the sentence under the

law in this state is the mentality—[.]” J.A. 318. Fullwood argued that the line of

questioning was appropriate under Morgan v. Illinois, 504 U.S. 719 (1992), but the court

again sustained the state’s objection. It did, however, agree to read the relevant statutory

mitigating circumstances from S.C. CODE ANN. § 16-3-20(C)(b)* to the jurors and ask

' Terry argued before the district court that Stone was operating under an actual

conflict of interest because he served as a prosecutor and had government clients. Terry

doesn’t raise this argument on appeal, however, and has thus abandoned it. See United

States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (“[C]ontentions not raised in the

argument section of the opening brief are abandoned.”).

2 Under Morgan, a capital defendant has the constitutional right to conduct

sufficiently probing voir dire to discover, and exclude from the jury, prospective jurors

who “would unwaveringly impose death after a finding of guilt.” 504 U.S. at 733.

3 These circumstances were that (1) “[t]he murder was committed while the

defendant was under the influence of mental or emotional disturbance”; (2) “[t]he capacity

of the defendant to appreciate the criminality of his conduct or to conform his conduct to

the requirements of law was substantially impaired”; and (3) “[t]he age or mentality of the

defendant at the time of the crime.”

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whether they could consider that evidence. The court also read the relevant statutory

aggravating circumstances from § 16-3-20(C)(a).*

When questioning juror Norwood Brown, who submitted a post-trial affidavit in this

case, Stone asked:

[I]f you are in a position of sitting on a jury and you get in the position of

finding somebody guilty of murder and another—like a rape or a burglary—

and then you get into a sentencing phase, can you be fair to both the State

and the defense and consider those aggravating and mitigating circumstances

that the judge talked about earlier with you?

JA. 496.

Brown answered, “Yes, sir.” Jd, Stone then asked, “So you could consider life and

you could consider death, either way, even after you found somebody guilty?” Jd. Brown

again answered yes. Stone asked nearly identical questions of, and elicited nearly identical

responses from, Robin Ritchie, the other juror who submitted a post-trial affidavit.

Following a two-day presentation of evidence, and after less than two hours of

deliberations, the jury found Terry guilty of the offenses charged in the indictment.

ce.

l.

Terry’s sentencing proceeding began the next day. The state’s presentation included

evidence of Terry’s extensive criminal history and violent character.

4 These circumstances were that “[t]he murder was committed while in the

commission of the following crimes or acts: (a) criminal sexual conduct in any degree; .. .

[and] (d) burglary in any degree.” § 16-3-20(C)(a).

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In 1985, Terry stole several items from a business called Imports Plus, including

approximately eighteen items “such as sanders, things that would be utilized in a body

shop, ... to repair damage ... on a vehicle.” J.A. 361. That same year, Terry stabbed a

woman in the throat, resulting “in a conviction for assault and battery of a high and

aggravated nature.” Id. According to the victim’s statement, after stabbing her, Terry “just

slowly walked to the door like he hadn’t done anything. He was just so calm.” J.A. 1135.

In 1988, Terry was convicted of resisting arrest, possessing a stolen vehicle, and

other offenses. Terry committed additional infractions while in custody for these crimes,

including disorderly conduct and bribery.

The state called several character witnesses. Jeffrey Douglas Ford testified that he

had known Terry since 1988 and had helped Terry steal cars. While working with Terry

to provide security af a bar, Ford saw Terry hit patrons with pool cues and rocks while

breaking up fights. Ford also saw Terry hit a patron with a beer mug after the patron spilled

beer on Terry’s jacket.

Tyrone Kelly testified that Terry intentionally hit his car, causing significant

damage and nearly hitting him, following a dispute over money that Terry believed Kelly

owed him. Kelly further testified that Terry and another man wanted the money to buy

“something to smoke.” J.A. 363.

While in jail awaiting trial on Jackson’s murder, Terry smashed the wall of his cell

with a fire extinguisher. The state also presented a letter found in Terry’s cell stating that

Terry had conspired with Johnny Brewer, an inmate housed with Terry, to confess to a

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murder for which Brewer was under arrest, whereupon Brewer would be released and then

help Terry escape.

Angela Fedorchak testified about a violent incident involving Dianne Gibson,

Fedorchak’s friend and Terry’s girlfriend.° When Terry arrived at the house where

Fedorchak and Gibson were staying, Fedorchak told him that Gibson wasn’t there.

Undeterred, Terry forced his way into the house. Terry hit Fedorchak with a screen door

hard enough to slam her into a wall and cause internal bleeding for which Fedorchak

required medical treatment. Terry then forced Gibson to leave with him.

Gibson also testified for the state. She experienced Terry’s “hot temper” during

their relationship and said that Terry would throw things if she didn’t do what he wanted.

J.A. 366. After one fight, Terry left Gibson at a friend’s house and, when she arrived home,

she discovered that Terry had “busted her answering machine, torn up pictures and thrown

things about her room.” Jd. (cleaned up). After another disagreement, Terry “threw

[Gibson’s] kitten up against the wall and threw the T.V. off the shelf.” Jd. Gibson testified,

“ Terry] never physically abused me other than a few times just grabbing [her] by the arm,

but... he controlled [her] emotionally and mentally.” Jd.

According to Gibson, Terry never held a legitimate job, stole boat and car trailers,

and took money from each of her paychecks to buy crack. Gibson also recalled Terry

telling her about a time when he beat a man “half to death” because he swore at Terry when

Terry had told him to be quiet. Jd.

> Terry was married at the time.

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Gibson read the following excerpts from letters Terry sent her from prison:

Shit. I would not know how to change. Iam me. Like I said, there is nobody

like me and nobody will mess with me because they know I will hurt

them. ... I’m going to be just like I was before, maybe a little meaner than

I was, but that’s all.... I need to start calming down. I am getting too old

for all this shit. I always loved to fight. I did it so good. It felt so good to

hurt people that was bigger than me, but that’s all behind me.

J.A. 367.

Gibson testified that Terry persuaded her to shoot him in the leg so that he could

avoid going to court for back child support. She described how Terry had damaged her

cars, once throwing a child’s toy at, and kicking in the door of, her truck, when she tried to

leave him. Terry burned one of Gibson’s cars by “pouring lighter fluid in the dash and

setting it on fire.” J.A. 368 (cleaned up). Gibson recalled several incidents when she tried

to leave Terry, and he threatened to burn her home or otherwise harm her family.

Gibson also testified about the incident Fedorchak had described. Earlier that

evening, Gibson met up with Terry, who had been drinking. He gave her flowers and a

bracelet. Gibson stated, “The conversation started off fine. I told him that I did not love

him anymore, that I did not want to be with him. Then he got mad. He tried to punch out

my passenger’s side window of my truck.” Jd.

Gibson tried to leave, but Terry opened the hood of her truck and disabled the

engine. Terry then promised to repair the engine if Gibson rode in his car with him. She

did, and during the ride, Terry told her that he intended to force Gibson to watch him kill

himself. Gibson jumped out of the car, but Terry picked her up and then took her back to

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her truck and fixed the engine. Gibson left and eventually met up with Fedorchak before

returning to her house.

Gibson then went into her bedroom, locked the door, and turned off the lights. She

heard the altercation between Terry and Fedorchak, after which Terry broke into Gibson’s

room, grabbed her by the arm, and told her to leave with him. Gibson did, but drove very

slowly, and when she saw blue lights behind her truck, she stopped and jumped out.

Gibson learned about Urai Jackson’s murder the same day that Jackson’s body was

found. Three or four days later, Terry told her that a friend had gone to the crime scene

and had told him that the phone box had been tampered with and that the glass on the

carport was broken from the inside.

Tamatha Griffin, Terry’s ex-wife, testified that Terry was physically abusive during

their marriage and never provided well for the child they had together. Griffin filed for

divorce on the basis of physical cruelty. She recounted the following:

Gary told me that he had stabbed a prostitute in the neck and he had to leave.

So he left and went to Florida. But prior to this, he would grab a hold of my

arm. He wanted to take my car one night and I didn’t want him to take it.

So I had the keys in my hand and he was twisting my arm and finally he got

the keys and he said that he was going to take the car and I said, well, you

are not going to take the car without me in it. We were going down a dirt

road and he opened my door and tried to push me out of the car.

He’s broken the windshield out of my stepfather’s van. My stepfather took

me to his mother’s house and I got my car that was there and while I was

trying to leave, he busted the windshield out of my car and the glass hit my

face and cut my face.

J.A. 369-70. Griffin also testified that Terry raped her during their marriage.

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2s

The state introduced statements that Terry made to the police regarding Jackson’s

murder. Terry first told police that he had never been alone with Jackson inside her home.

But he later claimed that he and Jackson had consensual sex inside her home, and he then

fought with Jackson when he tried to leave against her wishes.

The argument got pretty heated. I went to go out of the room and she grabbed

me by the hair. I turned around and swung to get her off of me. I think I hit

her and she went down to her knees.

I, again, tried to walk out of the room. I got almost to the end of the hallway.

She grabbed me from behind again. I then lost my temper. I swung back at

her again. I then got something into my hand. It was just there in the hall.

She could have brought it with her. I started hitting her with it. I lost my

temper and I hit her several times. I have a bad temper.

I then remembered leaving out of the same back door. I could have dusted

[sic] a pane of glass on the door when I busted the door open.

I don’t remember pulling the phone lines. I don’t remember what I did with

the object that I used to hit Ms. Jackson. I can’t remember what it was. I

remember that I could hold it in one hand and it wasn’t as big as a baseball

bat.

J.A. 370-71.

The state also played a video of the crime scene and presented a blood spatter expert,

who testified that “Jackson was laying on the ground or could have been no higher than

nine inches off of the ground when she received her head wounds.Ӣ J.A. 371. The state

6 We think the expert meant that Jackson’s head, rather than her entire body, could

have been no more than nine inches above the ground.

1]

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then called Dr. John B. Carter, the forensic pathologist who testified during the guilt phase,

to more fully describe Jackson’s injuries.

Carter testified that Jackson had a swollen right thumb, which “could have happened

warding off a blow or it could have come from having the hand on the floor one side up or

the other side up and then being stomped on or being struck sharply with a hard object.”

J.A. 372 (cleaned up). Jackson had other injuries to her arms consistent with defensive

wounds, as well as extensive injuries to her right shoulder consistent with the use of two

weapons. According to Carter, all of Jackson’s injuries were consistent with “some type

of a prolonged struggle and probably not a one blow to the ground type of episode.” Id.

(cleaned up).

As to Jackson’s head wounds, Carter explained that there were “at least four

different tracks that we can see, although, there may have been more blows superimposed

on the original and the force was such that the skull just behind the right ear was crushed

and depressed in multiple places.” J.A. 373. Jackson’s skull “was crushed and smashed

inward somewhat like punching against an eggshell.” Jd. Jackson, said Dr. Carter, was

found with her legs spread apart, with semen matched to Terry in her vaginal canal. He

explained that “the position of the victim’s body is very characteristic of positions the

victims are found in that have been engaged in sexual activity or assault at the time of

death. The legs are spread apart and death occurs and they stay that way.” Id.

Be

In mitigation, Terry presented evidence of his upbringing and of damage to his

brain. Terry’s mother, Patricia, testified that, when Terry was about four years old, his

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father, Bill Terry, was injured in an accident and could no longer work. Though Bill

received workers’ compensation, it wasn’t enough to support the family. Patricia thus

worked outside the home, first at a sewing room and then at a textile mill.

The accident not only made finances tight, but also changed Bill’s personality,

making him more irritable and unable to tolerate the noise of children playing. According

to Patricia, Bill would leave the room when the children were playing. But she said nothing

about him becoming angry at the children, let alone abusing them.

Patricia explained that Terry, the youngest of five, was a “loner” as a child and was

content to play by himself. J.A. 686. Terry didn’t participate in any traditional childhood

activities, such as scouting or little league, because he “didn’t have an attention span to sit

... for longer periods.” J.A. 687. In the second or third grade, Terry was tested and

determined to have a learning disability and be “borderline retarded.” Jd. He was placed

in special education classes, but his parents didn’t tutor him or otherwise help him

academically.

Patricia testified that, starting around age 13, Terry “and his brothers fought a

lot.... And even though he’s the smallest of them, he would still hang in there.” J.A. 688.

Terry also “had a lot of run-ins with his dad.” Jd. However, Patricia claimed that none of

the fights required intervention by law enforcement.’

7 A defense expert later testified that Terry’s parents had his brothers arrested for

abusing him.

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One night, when Terry was 13, he blocked the door of his bedroom with a dresser,

wrapped himself “cocoon style” in a blanket, and inhaled the fumes from a can of glue

remover and a tube of “airplane glue.” J.A. 689-90. Patricia and Bill forced their way into

Terry’s bedroom and found him unconscious. Terry’s parents were able to revive him by

taking him outside, but he was disoriented when he regained consciousness. Aside from

having Patricia’s brother-in-law, who was a doctor, visit Terry at their house the following

day, Terry’s parents didn’t seek any medical or mental health treatment for him.

When Terry was about 14, he got into a fight with one of his brothers, during which

he threw a brickbat through the window of a van that his brother was restoring. Terry’s

father tried to break up the fight, but when Terry “came at him,” Bill swung a board at

Terry with enough force to break Terry’s collarbone. J.A. 692.

Patricia also testified to symptoms of apparent internal injuries and brain damage in

Terry following a fall from a tree while working for a tree-trimming company in Florida,

where he fled after committing the 1985 stabbing. Terry repeatedly coughed up blood

while in jail for the stabbing and following his return home, though doctors were unable to

determine the cause of the bleeding. Patricia also stated that:

I’ve seen him stagger before. I’ve seen him go do something and just

completely forget what he was doing. And he’s—it’s like I said, he just

staggers. I’ve never seen him completely black out, but I have seen him

forget what he was doing or just completely stop and turn around. And

they’ve given him all kinds of medicine. They’ve even taken him to the

hospital and put medicine in his veins for migraine headaches and . . . they

stop for a while and then they come right back.

J.A. 702.

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Bill Terry described an incident when Terry, age 10 or 12 at the time, intervened

when neighborhood children “started cursing ... and throwing rocks” at Bill. J.A. 731.

Bill said that Terry helped around the house and was a “good kid.” J.A. 732. Bill did not,

however, testify to other mitigating circumstances in Terry’s life beyond affirming his

wife’s testimony that his ability to provide for the family and to tolerate the noise of

children playing diminished after his accident.

Lou Ann Smith Terry, Terry’s wife and the mother of four of his children, told the

jury that Terry had a loving relationship with his children and that, despite his actions, she

continued to love him. She also pled with the jury for Terry’s life.

On cross, the state confronted Ms. Terry with statements she had made during a

psychosocial assessment of Terry as part of his admission to a hospital for drug treatment.

99 66

Among these were assertions that Terry “lies compulsively,” “seems to have no

boundaries,” is “very manipulative,” has a “violent temper,” “liked having his own way”

or was “spoiled,” “is very immature and dependent,” “does not see himself as an addict or

an alcoholic,” and “shows no concern for the rights or needs of . . . his wife or others.” J.A.

749-50. Ms. Terry did not deny making the statements, but could recall onty some of

them.

Counsel also presented four expert witnesses: Jan Vogelsang, an expert in social

work; Dr. Robert Deysach, an expert in clinical neuropsychology; Dr. David Bachman, an

expert in behavioral neurology; and Dr. Donna Schwartz-Watts, an expert in forensic

psychiatry.

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Vogelsang explained the relationship between Terry’s upbringing and brain

damage. Terry “was born to parents whose own lives and circumstances of their lives had

made it very difficult for them to parent effectively and for that reason, they had great

difficulty providing any more than very basic needs for their children. Especially[] after

his father’s accident.” J.A. 769-70.

According to Vogelsang, Terry “did have some special developmental needs as well

and there were no resources available for those and no family members close by who could

... ot who did step in and take over to help this family.” J.A. 770. Vogelsang told the jury

that one side of Terry’s family has a history of alcohol abuse, and there is a pattern

throughout the family of “some rather unusual medical problems” and “learning and

emotional problems.” Jd. Vogelsang also said:

[Terry] has a documented history of learning disabilities and certainly a

history with ... [in]attentiveness[,] impulsivity, poor judgment, explosive

outbursts and other behavioral indications that later have turned out to be

attributable to a medical condition that causes changes in his behavior.

.... His ability to control these outbursts, to restrain his behavior, to forecast

consequences, to learn from experience are greatly impaired... .

... [But], with medical intervention, it is entirely possible that he will be able

to restrain himself, control his behavior and adapt to prison life.

J.A. 770-71.

Vogelsang interviewed Terry four times and also spoke with Terry’s wife, mother,

father, two sisters, two brothers, sister-in-law, former girlfriend, ex-wife, two sons,

daughter, two aunts, uncle, great aunt, and great uncle. Vogelsang characterized Terry’s

parents as “the poster children for bad luck” and stated, “I think they did care. They just

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simply either did not know what to do or did not have the energy to do it.” J.A. 785-86.

Notwithstanding Terry’s father breaking Terry’s collarbone with a board and his brothers

being arrested at his parents’ behest for abusing him, Vogelsang explained:

[I do not mean to] imply that family violence was the same in this family as

it is in a lot of families because that’s not what I found here. There is some

violence. I would not say it’s the kind of pervasive violence you find in a lot

of homes where battering takes place. But certainly, at an early age, I think

[Terry] was already probably giving signs and cues that something was

terribly wrong.

J.A. 784.

According to Vogelsang, Terry’s parents failed to seek help for him after they

discovered him inhaling glue and that, when Terry was eight, he observed an older brother

inhale gasoline fumes, also with no parental intervention. Though Vogelsang didn’t say

that Terry suffered significant abuse, she did testify that Terry’s older brothers and his

sister had all lost custody of their children because they either abused or neglected them.

Vogelsang opined, “Because we have given so much attention to physical and sexual

abuse, .. . we have not given enough attention to the impact of neglect on children and that

...is one of the keys for children ending up in the criminal justice system.” J.A. 783-84

(emphasis added).

Next up in mitigation was Dr. Deysach, who testified that, based on various tests of

Terry’s cognition and behavior, Terry had an abnormality in the right frontal lobe of his

brain and that Terry’s behavioral abnormalities were consistent with his findings of damage

to this area of the brain. Deysach’s findings were also consistent with a diagnosis Terry

had received in 1994 of organic explosive disorder, a condition which interfered with

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Terry’s ability to regulate his behavior, particularly when he was under emotional strain.

Deysach concluded that Terry had a “neuropsychological deficit.” J.A. 825.

Dr. Bachman showed the jury scans of Terry’s brain which indicated an area of

reduced activity in his right frontal lobe. Bachman then explained:

When somebody has an abnormality [sic] function in that part of the brain,

there are two sets of problems that you see. On the one hand, they have

difficulties on certain types of testing such as [those administered by] Dr.

Deysach....

The other thing that we know is that people who demonstrate those sorts of

abnormalities . . . also frequently have other kinds of behavioral problems as

well. And those behavioral problems include such things as irritability,

impulsivity, aggressive behavior, explosive aggressive behavior, poor

planning in terms of thinking about the [repercussions] of behavior[,] and

these are very typical of patients who have had lesions such as head injury or

other such abnormalities of that part of the brain.

So the fact that he has the ... abnormality in the neurospect scan, the fact

that he has the abnormality on the neuro-psyc[h] testing, it’s very, very strong

evidence that you would also expect to find these other behavioral problems.

J.A. 843. Bachman affirmed that his findings were consistent with Terry’s earlier diagnosis

of organic explosive disorder and explained that patients with this type of brain injury

“don’t necessarily come in conflict with the law, but they sure have come in conflict with

their family.” J.A. 844.

Dr. Schwartz-Watts diagnosed Terry with an “organic mental disorder” not

otherwise specified. J.A. 867. She told the jury:

[I]t?s a major mental disorder and it’s organic in nature, meaning that it

comes from the brain, brain damage or dysfunction in the brain compared to

chemical imbalances or personality disturbances and it affects his thinking,

his feelings and his behavior.

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The way it affects his thinking, people with this type of brain damage, as

demonstrated by Dr. Deysach and Dr. Bachman, and also consistent with my

clinical findings, they can at times become suspicious and paranoid.

And then in terms of behavior, they can be quite aggressive, explosive. They

can have sexual indiscretions. They can be very impulsive, very, very

impulsive people.

J.A. 867-68. Schwartz-Watts also stated that the aggravating circumstances the state

presented were consistent with her findings.

In their closing arguments, Terry’s lawyers emphasized the impact of Terry’s brain

damage on his violent behavior. Fullwood and Stone both stated that Terry’s parents were

not at fault for his behavior. Fullwood argued that Terry’s parents “tried hard,” pointed to

“their pain and their shame,” and said that there was “no reason to hurt them more” by

executing Terry. J.A. 897.

After deliberating for a little over an hour, the jury recommended that Terry be

sentenced to death. The court imposed that sentence, as well as consecutive sentences of

life imprisonment for first degree burglary, thirty years for first degree criminal sexual

conduct, and ten years for malicious injury to a telephone system.

D,

Terry appealed and the Supreme Court of South Carolina affirmed. State v. Terry,

529 S.E.2d 274 (S.C. 2000), cert. denied sub nom. Terry v. South Carolina, 531 U.S. 882

(2000). Terry thereafter sought postconviction relief in state court. Terry’s counsel raised

multiple grounds for relief concerning trial counsel’s performance, none of which are at

issue here. Following an evidentiary hearing, the state trial court denied Terry’s application

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for postconviction relief and dismissed it with prejudice. The state Supreme Court

affirmed. Terry v. State, 714 S.E.2d 326 (S.C. 2011), cert. denied sub nom. Terry v. South

Carolina, 565 U.S. 1206 (2012).

Bs

Terry next pursued habeas relief in federal court.* His federal habeas petition raised

five grounds for relief, two of which he pursues on appeal:

III. Petitioner’s rights to the effective assistance of counsel and to a fair and

impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the

United States Constitution was [sic] violated by trial counsel’s failure to

conduct adequate and appropriate voir dire or to adequately establish a record

and appropriately object in order to preserve the issue for appellate review.

IV. Petitioner’s right to the effective assistance of counsel as guaranteed by

the Sixth and Fourteenth Amendments to the United States Constitution was

violated by trial counsel’s failure to develop evidence supporting a defense

of guilty but mentally ill and failing to adequately investigate and present

mitigation evidence during the trial and sentencing when trial counsel failed

to present substantial and highly mitigating evidence of Gary Terry’s

childhood abuse.

J.A. 31, 35. Both grounds were procedurally defaulted, because Terry’s counsel in the

state postconviction proceeding didn’t raise them.

Terry attached to his petition several affidavits (including from two of the experts

who testified at trial) and other documentary evidence of childhood abuse that, he argues,

trial counsel were deficient in failing to uncover and present as mitigating evidence. Terry

8 Terry also sought to exhaust his state remedies in a contemporaneously filed

application for postconviction relief in state court. But the state court dismissed Terry’s

application as time-barred and improperly successive.

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also attached affidavits from two jurors who say that they didn’t consider a life sentence

and that the jury didn’t discuss giving Terry a life sentence during deliberations. Finally,

Terry presented affidavits from his trial and state postconviction counsel to show that

counsel had no strategic reason for failing to investigate or present evidence of abuse.

Terry’s submission to the district court painted a picture of a childhood marred by

his father’s abuse. Some of the evidence appears in the notes of the experts retained by

trial counsel. Massey’s notes from a pretrial interview of Terry record the following

description of Terry’s childhood:

Discipline: Gary stated, “My daddy beat the shit out of me with a belt.” He

explained that his daddy has health problems (burned, busted back,

migraines) and he has a temper. He (daddy) whipped hard enough for the

whelps [sic] to bleed. He (daddy) slapped him (Gary) on his face, on the side

of his head or whatever he could reach when he got mad. His daddy would

cuss him when he got blamed for doing something. He said, “My brother

Johnny would do stuff and blame it on me and I would catch hell for it.” All

of the children got whipped like that.

Gary remembered one time when he was in high school (16-17 years old)

and was talking on the telephone at home. His daddy came by and said

something .. . the cussing started and Gary tried to run away. His daddy hit

him across the back with something and broke his shoulder blade. Gary

remembers being taken to either Richland or Baptist Hospital.

Gary said his mother was usually home when all this was going on but she

tried to stay out of the way. One time she got in between them and got hit.

His mother didn’t discipline him—she left it up to his daddy.

JA. 55.

Vogelsang’s handwritten notes from the interviews she conducted also refer to

abuse. Terry’s sister-in-law, Patty Terry, reported that “Patricia step[ped] in to stop Bill

beating boys and would get it” and also that “Bill saw kids as workhorses . . . not allowed

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to play.” J.A. 58, 345. Vogelsang’s notes following her interview with Terry’s brother,

Billy Terry, reflect: “Daddy tore everyone up including him if Mom had to be awakened”;

“Strap—hung behind door”; “couldn’t go to school—didn’t want teacher to see marks.”

J.A. 345. From her interview with Faye Servoss, Terry’s sister, Vogelsang noted: “Fa [sic]

wid tie kids to tree in front yard & have beat each other”; “Dad beat before accidents”;

“Daddy made them fight each other”; and “Billy worked kids to death . . . like dogs.” J.A.

70, 75, 345-46.

In Vogelsang’s post-trial affidavit, she states, “[I]t is apparent that Gary and his

siblings suffered significant abuse at home. It would have been typical of me to make this

known to the attorneys and to stress the impact of trauma on development.”? J.A. 78.

Vogelsang does not, however, have any memory of this case, which, she assumes, was

because Terry’s trial team was not “active and cohesive.” Jd. Vogelsang explained that

the lack of testimony concerning Terry’s abuse must have been attributable to “the lack of

a true team effort, lack of funding, or trial counsel specifically instructing [her] not to talk

about the abuse, or a combination of all three.” J.A. 79. But she dismissed lack of funding

as a possible reason, because her professional ethics code would have required her to work

° Because Vogelsang’s post-trial affidavit contradicts her trial testimony concerning

the severity of the childhood abuse Terry suffered and the greater importance of neglect to

Terry’s development, it doesn’t establish a genuine issue of material fact at summary

judgment. See Erwin v. United States, 591 F.3d 313, 325 n.7 (4th Cir. 2010) (“[I]t is well

established that a genuine issue of fact is not created where the only issue of fact is to

determine which of the two conflicting versions of [an affiant’s] testimony is correct.”

(cleaned up)). See also Rohrbough v. Wyeth Lab'ys, Inc., 916 F.2d 970, 976 (4th Cir. 1990)

(holding that an expert’s affidavit which contradicted his deposition testimony did not

create an issue of fact at summary judgment).

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on the case, once retained, even if she had not been paid. Vogelsang also doesn’t remember

state postconviction counsel speaking to her about the case.

In her affidavit, Patricia Terry states that Bill, Terry’s father, “whipped the children

with a belt almost daily.” J.A. 82. Terry’s father prohibited the children from playing

outside, sometimes making them work until 10:00 at night. Patricia also provided an

account of Bill breaking Terry’s collarbone inconsistent with her account at Terry’s

sentencing proceeding (while indicating that she did not witness the actual incident):

Bill used to have the children “fight it out” among themselves. One day,

when Gary was between 12-14 years old, he and Johnny were fighting in the

garage area. Bill was there, too, but did not stop the fight. Johnny is much

bigger and stronger than Gary. Gary picked up a brick and threw it at Johnny.

The brick broke the windshield of Bill’s car and then Bill hurt Gary. He

broke his collarbone, and I think he did so by hitting him with a board that

was in the garage. I was at work when this happened.

J.A. 83.

Patricia claimed that Bill would throw out the children’s dinner if they were served

before he was or if he didn’t like what she cooked for dinner. Bill often threatened to “blow

[her] brains out” in front of the children. J.A. 85. Patricia further explained, “I did not

testify about the information included in this affidavit. I simply answered the questions

asked of me and no one asked about these things while I was on the witness stand.” Id.

Patricia did not, however, say that she discussed this information with Terry’s attorneys.

In a lengthy affidavit, Faye Terry Servoss, Terry’s older sister (who was not a

witness at Terry’s trial), testified to her father’s significant abuse of various family

members, including severe beatings, animal torture, and seeing her father force her mother

to eat a pack of cigarettes because he was angry about her smoking. Faye also testified that

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her mother said, “that one’s ruined, that’s okay, we’ve got another” to her father after a

neighborhood boy raped her when she was a child. J.A. 87 (cleaned up). But the only

incident relating to Terry that she described in her affidavit was his father breaking Terry’s

collarbone. Faye also stated that she would have testified at trial to the abuse if she had

been subpoenaed.

Charles Register, Patricia Terry’s brother, provided a brief affidavit describing

Terry’s father’s abuse of his wife and children. Register testified that he saw Terry’s father

“viciously beat” Terry with a stick when Terry was six or seven years old. J.A. 94. Register

also testified that “[he] was available and would have testified to these events had [he] been

contacted by defense counsel.” J.A. 95.

Finally, Francis Terry, the former wife of Terry’s older brother Billy, submitted an

affidavit in which she testified to severe abuse that Billy inflicted upon her and one beating

that Billy told her his father had given him. But she also said that, though Terry’s father

was “hard” and “real strict,” she never saw him hit his children. J.A. 98.

In her affidavit, Dr. Schwartz-Watts stated, “I did not review, because I was not

provided, detailed interviews with various family members conducted by defense counsel’s

mitigation investigator, Vivian Massey, nor did I review, because I was not provided, any

of the materials assembled by Jan Vogelsang, the social worker hired by defense counsel.”

J.A. 101.

After receiving this information and the affidavits of family witnesses from habeas

counsel, Schwartz-Watts reexamined Terry in May 2012. Had Schwartz-Watts known

about the abuse Terry suffered, she would have testified at trial that Terry suffered effects

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from trauma, including missing memories, intrusive thoughts of childhood abuse, and

inability to form healthy relationships. According to Schwartz-Watts, “[t]his information

is mitigating in its own right, but is also significant with respect to significant brain

dysfunction, as the abuse may have actually contributed to the dysfunction.” J.A. 102.

“Terry,” she said, “had more neurological dysfunction than any patient I have ever

evaluated, including those prior to 1997 and since.” Jd. Dr. Schwartz-Watts didn’t recall

hearing from Terry’s counsel in the state postconviction proceeding, although she knew

and worked with these attorneys on other cases.

In her affidavit, Fullwood says that “[i]f the evidence of Gary Terry’s substantial

physical abuse was not provided to Dr. Schwartz-Watts it should have been.” J.A. 47.

Fullwood also did “not recall making any strategic decision to limit the mitigation

testimony of Gary’s family members or to avoid presentation of evidence that he had

suffered significant abuse as a child.” Jd. She stated that it was her “intent to present all

of the evidence of that nature that [she] could and all that [she] was aware of was

presented.” Jd. Fullwood also didn’t discuss the case with Terry’s counsel in the state

postconviction proceeding before testifying. She deemed this unusual, since

postconviction counsel generally interview trial counsel before calling them to the witness

stand.

Terry’s postconviction counsel filed affidavits stating that they spoke with Terry’s

parents and one of his ex-wives but did not develop additional mitigation evidence from

these conversations. Their affidavits do not, however, specify whether they questioned

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Terry’s family members about abuse or indeed what they discussed with Terry’s family

members during the interviews.

Postconviction counsel didn’t interview or speak with Massey or any of the four

expert witnesses who testified at trial. They don’t recall interviewing any jurors in Terry’s

trial. If they had known of the abuse Terry suffered as a child, they would have argued that

trial counsel were ineffective for failing to present this issue to the jury.

The affidavits of jurors Brown and Ritchie assert that the jury didn’t consider a life

sentence for Terry. See J.A. 49 (Brown testifying, “[W]e made the [sentencing] decision

easily and were all in agreement. We did not discuss giving [Terry] a life sentence.”); J.A.

51 (Ritchie testifying, “We did not discuss giving [Terry] a life sentence.”). Brown said,

“Based on the fact that [Terry] committed a murder plus rape and burglary, there was

nothing he could have said or done to make me give him a life sentence. I believe the death

penalty is the right punishment for murder if there are also other crimes.” J.A. 49. Ritchie

stated that “the defense lawyers’ attempts to evoke sympathy did not work” and explained,

“(T]he evidence regarding his brain injury did not impact me. What I cared about was

whether he knew right from wrong, and he did, so in my opinion he did not deserve a life

sentence.” J.A.51.

The district court granted summary judgment to the state on Terry’s habeas petition

and adopted the magistrate’s 144-page Report and Recommendation as the order of the

court. Terry v. Stirling, No. 4:12-1798-RMG, 2019 WL 4723345, at *1 (D.S.C. Sept. 26,

2019). The district court also denied Terry’s request for an evidentiary hearing. Jd. at *9.

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Terry, said the district court, had “not made specific factual allegations that, if true,

would entitle him to habeas relief and ha[d] failed to demonstrate the substantiality of his

underlying ineffective assistance of counsel claims.” Jd. The district court arrived at this

conclusion for four related reasons: (1) Terry’s trial counsel presented some evidence of

Terry’s childhood abuse; (2) Terry presented no evidence that trial counsel knew more

information about the abuse than they presented; (3) any deficiencies in trial counsel’s

presentation were attributable to their experts’ failure to inform them of childhood abuse

Terry suffered, for which trial counsel cannot be faulted; and (4) the record suggests that

Vogelsang, counsel’s expert in social work, did not deem the abuse significant when she

testified at Terry’s sentencing. Jd. at 12.

The district court also held that Terry’s trial counsel conducted an adequate voir

dire. It noted that counsel asked both jurors Brown and Ritchie'® whether they could

consider either a life or a death sentence depending on the circumstances, even after finding

Terry guilty of murder and other crimes, and both jurors answered in the affirmative. Id.

at *11. Terry, said the district court, “was permitted to do exactly what Morgan requires,

namely, he inquired whether each of these jurors had predetermined whether or not to

impose the death penalty, with each one confirming, with the benefit of knowing both the

statutory mitigating factors and that they would have already found Petitioner guilty of

murder plus an additional criminal act, that they could impose either a sentence of life in

10 The district court refers to Brown and Ritchie as Juror #35 and Juror #214

respectively.

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prison or death.” Jd. at *12. And the trial court didn’t improperly curtail counsel’s voir

dire, because South Carolina law prohibited the questions that counsel wished to ask

regarding the jurors’ views of psychiatry. Jd. at *11—*12.

This appeal followed.

Il.

“We review the district court’s denial of habeas relief on summary judgment de

novo.” Sigmon vy. Stirling, 956 F.3d 183, 191 (4th Cir. 2020). “[U]nder certain

circumstances, including raising a claim under Martinez, a petitioner may excuse a state

court procedural default.” Jd. (citing Martinez, 566 U.S. at 17). “In such cases, a federal

court considers those claims de novo.” Id.

“We review a district court’s decision to deny a habeas petitioner an evidentiary

hearing for abuse of discretion.” Jd. at 198. “In deciding whether to grant an evidentiary

hearing, a federal court must consider whether such a hearing could enable an applicant to

prove the petition’s factual allegations, which, if true, would entitle the applicant to federal

habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

“Generally, if a claim is procedurally defaulted in state court, federal habeas review

is barred ‘unless the prisoner can demonstrate cause for the default and actual prejudice.””

Sigmon, 956 F.3d at 198 (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). “And

ineffective assistance of state post-conviction counsel generally cannot establish cause for

the default because there is no constitutional right to an attorney in state post-conviction

proceedings.” Jd. (cleaned up). “However, when state law requires ‘claims of ineffective

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