Opposition Brief — Gary DuBose Terry, Petitioner v. Bryan P. Stirling, Commissioner, South Carolina Department of Corrections, et al.

Supreme Court briefDec 1, 2021

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No. 21-6151

IN THE

Supreme Court of the United States

GARY DUBOSE TERRY,

Petitioner,

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

and LYDELL CHESTNUT, Deputy Warden of Broad River Correctional

Institution Secure Facility,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION

ALAN WILSON

Attorney General of

South Carolina

DONALD J. ZELENKA

Deputy Attorney

General

MELODY J. BROWN

Senior Assistant Deputy

Attorney General

*WILLIAM EDGAR SALTER, III

Senior Assistant Attorney General

Post Office Box 11549

Columbia, South Carolina 29211

(803) 7 34-6305

esalter@scag.gov

Counsel for Respondents

*counsel of record

December 1, 2021

*CAPITAL CASE*

PETITIONER'S QUESTION PRESENTED

In determining whether a federal habeas petitioner's pleadings and

supporting documents have alleged a substantial but defaulted claim of

ineffective assistance of trial counsel that satisfies Martinez v. Ryan's

"cause" standard, may a district court summarily dismiss the petition

by drawing factual inferences against the petitioner without holding an

evidentiary hearing?

LIST OF PARTIES

Respondents agree with Petitioner Terry that the caption generally reflects the

parties to the proceeding; however, on or about July 11, 2019, Death Row inmates

were relocated to Broad River Correctional Institution. Pursuant to Supreme Court

Rule 35(3), Respondents have listed Lydell Chestnut, Deputy Warden of Broad River

Road Correctional Secure Facility, as the correct party warden in this matter.

STATEMENT OF RELATED PROCEEDINGS

Respondents identify the following related proceedings:

Terry v. Stirling, No. 20-3, ECF No. 76 (4th Cir. June 2, 2021) (order denying rehearing

and rehearing en banc);

Terry v. Stirling, 854 Fed.Appx. 475 (4th Cir. May 5, 2021) (appeal from district court)

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

(order granting motion for summary judgment and denying habeas petition);

Terry v. Stirling, No. 4:12-1798-RMG-TER, 2019 WL 4723926 (D.S.C. Jan. 31, 2019)

(report and recommendation);

State v. Terry, 529 S.E.2d 274 (S.C. 2000) (direct appeal opinion affirming conviction

and death sentence);

Terry v. State, 714 S.E.2d 326 (S.C. 2011) (opinion affirming dismissal of post

conviction relief application);

Terry v. State, 2000-CP-32-3470 (S.C. Ct. Common Pleas, Feb. 16, 2009) (order

dismissing post-conviction relief application with prejudice).

TABLE OF CONTENTS

PETITIONER'S QUESTIONS PRESENTED

LIST OF PARTIES

STATEMENT OF RELATED PROCEEDINGS

TABLE OF AUTHORITIES

BRIEF IN OPPOSITION

CITATIONS TO OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. Statement of Facts

B. Procedural History

1. Trial and Direct Appeal

2. Initial state post-conviction proceedings

3. Federal habeas corpus and his successive PCR

REASONS WHY CERTIORARI SHOULD BE DENIED

Martinez did not grant the right to an evidentiary hearing to

develop evidence, nor was it necessary to do so. The existing

rules of habeas litigation provide for expansion of the record in

a stepped approach that favors submission of documents,

including affidavits, prior to any grant of an evidentiary

hearing.

Terry presented affidavits in support of his position,

the district court accepted his affidavits, and both the district

court and the Fourth Circuit considered those affidavits in

determining that he did not show cause for the default of his

claim. He was not automatically entitled to more

II.

Terry has shown nothing more than an ordinary application of

well-established law in his habeas action. Both the district court

and the Fourth Circuit merely applied the venerable Strickland

test to assess whether he set out a substantial claim that trial

counsel was ineffective

A. Mitigation evidence presented by trial counsel

B. Terry's new evidence

C. Discussion

III.

This is a very intensely fact-specific case that was properly

resolved by the lower federal courts and will impact few others

than Terry

IV.

The outcome in Terry's case is not affected by the Court's recent

grant of certiorari in Shinn v. Ramirez, 141 S. Ct. 2620 (2021) to

review the decisions of the Ninth Circuit in Ramirez v. Ryan and

Jones v. Shinn because unlike Ramirez and Jones, here, the

lower federal courts properly determined that Terry had not

presented a "substantial" claim of ineffective assistance of trial

counsel under Martinez. So, he could not be entitled to a hearing

on the procedurally defaulted claim

Granting a petitioner, such as Terry, an evidentiary hearing to

litigate his procedurally defaulted ineffectiveness claim in

federal habeas corpus, where his newly-proffered evidence does

not demonstrate that the claim is "substantial" under Martinez,

would needlessly "impose significant costs on

the federal

courts," "aggravate the harm to federalism that federal habeas

review necessarily causes," and frustrate the important need for

finality of litigation of his convictions and sentence

CONCLUSION

TABLE OF AUTHORITIES

Page(s)

Cases

Abdul-Salaam, v. Secretary of Pennsylvania Department of Corrections,

895 F.3d 254 (3rd Cir. 2018)

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986)

Andrus v. Texas,

140 S.Ct. 1875 (2020)

Austin v. McCotter,

764 F.2d 1142 (5th Cir. 1985)

Buckman v. Hall,

2009 WL 204403 (D. Or. Jan. 23, 2009)

Burt v. Titlow,

571 U.S. 12 (2013)

Clemons v. Mississippi,

494 U.S. 738 (1990)

Cristin v. Brennan,

281 F.3d 404 (3rd Cir. 2002)

Cullen v. Pinholster,

563 U.S. 170 (2011)

Dansby v. Hobbes,

766 F.3d 834

Davila v. Davis,

137 S.Ct. 2058 (2017)

Deck v. Jennings,

978 F.3d 578 (8th Cir. 2020)

Diamond v. Colonial Life & Accident Ins. Co.,

416 F.3d 310 (4th Cir. 2005)

Engle v. Isaac,

456 U.S. 107 (1982)

Fielder v.Stevensor,

2013 WL 593657

Harrington v. Richter,

562 U.S.

34, 37

Hendricks v. Calderon,

70 F.3d 1032 (9th Cir. 1995)

Jones v. Shinn,

943 F.3d 1211 (9th Cir. 2019), 943 F.3d 1211 (9th Cir. 2019)

35, 36

Mackey v. United States,

401 U.S. 667 (1971)

Martinez v. Ryan,

566 U.S. 1 (2012)....

passim

McCleskey v. Zant,

499 U.S. 467 (1991)

McHone v. Polk ,

392 F.3d 691 (4th Cir. 2004)

Owens v. Stirling,

967 F.3d 396 (4th Cir. 2020)

Porter v. McCollum,

558 U.S. 30 (2009)

Powell v. Kelly,

562 F.3d 656 (4th Cir. 2009)

Ramirez u. Ryan,

937 F.3d 1230 (9th Cir. 2019)

35, 36

Rhines v. Weber,

544 U.S. 269 (2005)

Rhode v. Hall,

582 F.3d 1273 (11th Cir. 2009)

Robertson v. State,

795 S.E.2d 29 (S.C. 2016)

Rompilla v. Beard,

30, 32

545 U.S. 374 (2005)

Runningeagle v. Ryan,

825 F.3d 970 (9th Cir. 2016)

Ryan v. Schad,

570 U.S. 521 (2013)

Sasser v. Hobbs,

735 F.3d 833 (8th Cir. 2013)

Schneckloth v. Bustamonte,

412 U.S. 218 (1973)

Schriro v. Landrigan,

550 U.S. 465 (2007)

Shinn v. Ramirez,

141 S.Ct. 2620 (2021)

35, 36

Sigmon v. Stirling,

956 F.3d 183 (4th Cir. 2020)

30, 31

State v. Terry,

529 S.E.2d 274 (S.C. 2000)

Strickland v. Washington,

3, 7, 31

466 U.S. 668 (1984)

passim

Teague v. Lane,

489 U.S. 288 (1989)

Terry v. South Carolina,

565 U.S. 1206 (2012)

7,8

Terry v. State,

714 S.E.2d 326 (S.C. 2011)

Terry v. Stirling,

854 FecLAppx. 475 (4th Cir. May 5, 2021)

ii, 14

Terry v. Stirling,

No. 4:12-1798-RMG, at 2019 WL 4723345 (D.S.C. Sept. 26, 2019)

Terry v. Stirling,

No. 4:12-1798-RMG-TER, 2019 WL 4723926 (D.S.C. Jan. 31, 2019)

Thomas v. Am,

474 U.S. 140 (1985)

U.S. v. Diebold, Inc.,

369 U.S. 654 (1962)

United States v. Johnston,

268 U.S. 220 (1925)

Waters v. Thomas,

46 F.3d 1506 (11th Cir. 1995)

Wetzel v. Lambert,

565 U.S. 520 (2012)

Wiggins v. Smith,

539 U.S. 510 (2003)

14, 30, 32

Williams v. Woodford,

384 F.3d 567 (9th Cir. 2004)

Wilson v. Greene,

155 F.3d 396 (4th Cir. 1998)

Winston v. Pearson,

683 F.3d 489 (4th Cir. 2012)

Wong v. Belmontes,

558 U.S. 15 (2009)

Woodford v. Garceau,

538 U.S. 202 (2003)

Statutes

28 U.S.C. § 1254(1)

28 U.S.C. §2254

28 U.S.C. § 2254(e)(1)

28 U.S.C. § 2254(e)(2)

S.C. Code Ann. § 16-3-20(C)(a)(l)(a) & (c) (Supp. 1997)

S.C. Code Ann. § 17-27-160(B) (Supp. 2020)

S.C. Code Ann. § 17-27-150(B) (Supp. 2020)

U.S. Const, amend. VI

3, 16, 35, 36

Rules

Fed. R. Civ. Proc. Rule 56

vii

Fed.R.Civ.P. 72

Vlll

RESPONDENT'S BRIEF IN OPPOSITION

In September 1997, a state court jury convicted Petitioner, Gary Dubose Terry,

of raping and murdering Urai Jackson, during a burglary of her Lexington County,

South Carolina home and sentenced him to death. After denial of relief in state

collateral proceedings where he was represented by qualified and experienced

attorneys, Terry turned to the federal courts for relief. In addition to the two claims

exhausted in state collateral proceedings that he ultimately abandoned, he litigated

four additional ineffective assistance of trial counsel claims not pursued in state

court, including his claim that counsel were ineffective for not presenting mitigating

evidence of Terry's childhood abuse. To excuse the procedural default of his new

claims, he asserted his collateral counsel were deficient under Martinez v. Ryan, 566

U.S. 1 (2012), and that his new claim should be heard. Yet, the lower courts -

considering his new evidence - rejected his argument for cause to excuse the default

because none of his claims was substantial. Now nearing the end of federal habeas

proceedings, and having failed to obtain any relief from the lower federal courts, he

petitions this Court for further review. However, this Court should deny certiorari

review since Terry presents a question that cannot support relief, and which fails

factually and as a matter of law.

CITATIONS TO OPINIONS BELOW

The district court's unreported September 26, 2019 Order denying habeas

relief is available at

2019 WL 4723345.

App. 42a-77a. The December 10, 2019

unpublished Order denying the motion to alter or amend is available at 2019 WL

6716030. The May 5, 2021 unpublished opinion of the Fourth Circuit affirming the

denial of habeas corpus relief, is reported at 854 Fed.Appx. 475. App. la-41a. The

June 2, 2021 Order of the Fourth Circuit denying rehearing or rehearing en banc is

unpublished. App. 77. The state court Order denying post-conviction relief is

unreported. The Supreme Court of South Carolina's opinion affirming denial of relief

is published at 714 S.E.2d 326.

JURISDICTION

The Fourth Circuit filed its opinion affirming the denial of habeas relief on

May 5, 2021. It denied Terry's timely petition for rehearing and rehearing en banc on

June 1, 2021. Terry invokes this Court's jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Sixth Amendment to the United States Constitution,

which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right

... to have the Assistance of Counsel for his defence." U.S. Const, amend. VI.

This case also involves portions of 28 U.S.C. § 2254, which provides in

pertinent part:

(e)(2) If the applicant has failed to develop the factual basis of a claim

in State court proceedings, the court shall not hold an evidentiary

hearing on the claim unless the applicant shows that-

(A)

the claim relies on-

(1)

a new rule of constitutional law, made applicable to cases

on collateral review by the Supreme Court, that was previously

unavailable; or

(ii)

a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B)

the facts underlying the claim would be sufficient to

establish

clear

and

convincing

evidence

that

but

for

constitutional error, no reasonable fact finder would have found

the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2).

STATEMENT OF THE CASE

Statement of Facts.

The Supreme Court of South Carolina briefly summarized the State's guilt

phase evidence surrounding the murder as follows:

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. Victim'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).

More specifically, the guilt phase jury heard evidence that the victim had either

a t-shirt or gown across part of her body, but her breasts and her genitalia were

exposed, her legs were spread, and her left leg was up at an angle with the bottom of

her foot on the floor. St. App. 1284-98; 1308-09; 1332-36; 1342-43; 1353-58; 1419-22.1

Thus, she was positioned in a manner testified to as "very characteristic" of victims

that have been engaged in sexual activity or assault at the time of death. St. App.

1471-73; 1478-80. DNA testing established that Terry's semen was located in the

victim's vaginal canal. St. App. 1471-73; 1478-80.

The forensic pathologist who performed the autopsy found at least four and

possibly more blunt trauma wounds where a blunt, heavy, club-like object hit the

victim just above and behind her right ear. These blows were struck with sufficient

force to split the scalp and crush the skull bone, thereby exposing some brain tissue

behind her right ear. The appearance of the wounds indicated that the victim was

struck from behind and possibly from above and behind with a blunt instrument.

App. 1466-68. Two blunt trauma lacerations on the top of her shoulder appeared to

have been caused by the same instrument. At least two "slap-type injuries" in

different directions on the side of the victim's right upper arm and wounds to her left

forearm were defensive wounds. Although these wounds were consistent with State's

Exhibit 13, the top of a pool cue found at the scene, the head wounds were more likely

caused by a heavier instrument that had a rounded end, such as a club or a baseball

bat. The victim's thumb was "almost smashed," and the pathologist opined this could

be a defensive injury caused by the perpetrator stomping on her thumb. St. App.

1468-70.

1 The designation "JA" refers to the Joint Appendix filed in the court of appeals, and

"St. App." refers to the state court Appendix filed in the district court.

Procedural History.

Trial and direct appeal.

Terry received a jury trial on September 15-21, 1997, on charges of murder,

burglary in the first degree, criminal sexual conduct (CSC) in the first degree, and

malicious injury to telephone system. The jury convicted Terry as charged. St. App.

16-1591. In a separate capital sentencing proceeding, the same jury heard not only

further evidence relating to the rape and murder of the victim,2 they also heard that

Terry participated in other, unrelated prior criminal activity. Specifically, jurors

heard that Terry: stole cars and body shop materials; pled "guilty to receiving stolen

goods that had been taken from a golf course that was under construction;" carried a

fraudulent driver's license; was arrested and convicted for driving under a suspended

license; and was arrested for driving a stolen vehicle, for resisting arrest, and for

failing to stop for a police vehicle. While working security at a bar, he would hit

patrons with beer mugs, rocks, and pool cues. When an acquaintance would not pay

Terry to fix his car, Terry rammed into that person's car with his own, almost striking

the man. JA 361-64.

Terry

incurred

number

of disciplinary

infractions

while

previously

2 For instance, the jury heard that Terry had given two statements to law

enforcement about Jackson's murder. JA 370. Terry initially stated he had never been

alone with the victim inside her home. JA 370. Two months later, he said "he went to

Pier] house and indicated that he had consensual sex with her." JA 371. "When Terry

started to leave, they got into a verbal altercation because [she] wanted him to stay."

JA 371. Terry reacted with "a bad temper:" he hit the victim "several times" with an

object and left out the back door, which he busted open from the inside out. JA 37071.

incarcerated, such as bribery, disorderly conduct, and possessing or attempting to

obtain contraband. JA 361. Once, Terry "used a fire extinguisher to make a hole in

the wall of his cell" in the County Detention Center. A letter found in Terry's cell

"detailed" the murder and residential and vehicular arson of another woman. It also

instructed Terry on how to confess to these crimes for which another inmate awaited

trial. JA 363-64. Investigators discovered the author of the letter planned to assist

with Terry's escape from the Detention Center in exchange for Terry's confession. JA

364.

Other evidence established Terry's violent, predatory interactions with

women. He once stabbed a prostitute in the neck and was calm afterwards. St. App.

1620. He also raped his ex-wife during their marriage and she ultimately obtained a

divorce from him on the grounds of his physical cruelty. St. App. 1773-75. His former

girlfriend described him as having a "hot, quick temper." JA 365-66. He "would throw

things" if she disagreed with him (JA 366); and he damaged her cars, setting one on

fire. JA 368. "After one fight, Terry left her at a friend's house" and went and "busted"

her answering machine and tore up photos and threw them around her room. JA 366.

Another time, he threw her "kitten up against the wall and threw the T.V. off the

shelf' in a house they shared. JA 366.

She testified that while Terry did not physically abuse her, he controlled her

"emotionally and mentally." JA 366. She knew Terry would steal things, including

money from her paychecks, to fund a drug habit. JA 366. Terry told her he beat

another man "half to death" because the man "cussed at Terry when Terry had told

him to be quiet." JA 366. Terry wrote her a letter in which he described his temper

and confessed it "felt so good to hurt people." JA 367. Once, Terry told her "to shoot

him so he would avoid going to court for back child support." JA 367.

When she tried to leave Terry, an altercation ensued during which he removed

a wire from her car engine, forced her into his truck, and "told her that he was going

to make [her] watch him kill himself." JA 368. She jumped from his truck, "but he

picked her up and then took her back to her car and returned the wires to her engine."

JA 368. One of her female friends offered protection by hiding her in the friend's

home, but Terry came over looking for her. JA 368-69. Terry and the friend got into

a struggle, and the friend ended up in the hospital with internal bleeding. JA 364-65.

Then, Terry forced his girlfriend to leave with him. She only escaped by jumping out

of the car when "she saw blue lights behind" it. JA 369.

The jury sentenced him to death based on the finding of two statutory

aggravating circumstances: the murder was committed while in the commission of

burglary in any degree and criminal sexual conduct (CSC) in any degree. S.C. Code

Ann. § 16-3-20(C)(a)(l)(a) & (c) (Supp. 1997).3 St. App. 1602-2130. The Supreme Court

of South Carolina affirmed his conviction and death sentence on direct appeal. State

v. Terry, 529 S.E.2d 274 (S.C. 2000). This Court subsequently denied his Petition for

Writ of Certiorari. Terry v. South Carolina, 531 U.S. 882 (2000).

3 He was sentenced to consecutive sentences of life imprisonment for burglary in the

first degree, thirty years imprisonment for CSC in the first degree and ten years

imprisonment for malicious injury to a telephone system. St. App. 2128-30.

Initial state post-conviction proceedings.

In 2001, Terry filed a post-conviction relief (PCR) Application. Appointed

counsel, H. Wayne Floyd and Melissa Armstrong, who were statutorily qualified to

represent death-sentenced PCR applicants under S.C. Code Ann. § 17-27- 160(B)

(Supp. 2020), assisted him.4 His primary claims in PCR were that trial counsel were

ineffective for not objecting to the State's exclusion of Terry's statement to law

enforcement in the guilt phase based on prosecutorial misconduct in "sandbagging,"

and for not adjusting their trial strategy in order to maintain credibility with the jury

in sentencing. JA 1313-16. The Supreme Court of South Carolina denied both claims

on the merits. Terry v. State, 714 S.E.2d 326 (S.C. 2011). JA 1311-16. It also denied

his petition for rehearing. St. App. 2333-34. Terry subsequently presented both

claims in a Petition for Writ of Certiorari filed in this Court, which was denied on

February 21, 2012. Terry v. South Carolina, 565 U.S. 1206 (2012).

Federal habeas corpus and his successive PCR.

Terry filed a Petition for Writ of Habeas Corpus (ECF #16) and a "Motion to

Stay Proceedings Pending Exhaustion of State Remedies" (ECF #17), with the

assistance of counsel,5 on June 29, 2012. Among the claims raised was that counsel's

The Supreme Court of South Carolina strictly enforces the requirements of this

section. See Robertson v. State, 795 S.E.2d 29, 37 (S.C. 2016) ("we conclude that non

compliance with section 17-27- 160(B) constitutes deficient performance per se").

Appointed counsel are "compensated from the funding provided in Section 16-3-26 in

the same manner and rate as appointed trial counsel." Also, capital defendants in

PCR are "entitled to invoke the processes of discovery available under the South

Carolina Rules of Civil Procedure. S.C. Code Ann. § 17-27- 150(B) (Supp. 2020).

5 Originally, Teresa L. Norris, Esquire, Elizabeth Franklin-Best, Esquire, and Derek

ineffectiveness for not presenting evidence Terry had been physically abused by his

father. Respondents filed a Response opposing his motion to stay (ECF #25) on July

16, 2012. On August 27, 2012, Respondents filed a Return and Memorandum of Law

in Support of Summary Judgment (ECF #31) and a Motion for Summary Judgment.

ECF #32. Terry filed a "Response to State's Motion for Summary Judgment and

Motion to Strike Exhibits" on November 12, 2012. ECF #49. Respondents filed a Reply

to the Response opposing summary judgment on November 20, 2012. ECF #52. The

magistrate judge granted a stay on December 10, 20 12.6 ECF #53. The case remained

stayed, over objection, until July 13, 2018. ECF #119.

On October 24, 2018, Respondents filed an amended return and memorandum

in support of an amended motion for summary judgment. At that same time,

Respondents filed a motion to strike Terry's exhibits attached in support of claims

not raised in state court. On January 31, 2019, the magistrate judge recommended

Respondents' motion for summary judgment be granted, Respondents' motion to

strike Terry's exhibits be denied, and relief denied on all claims. He found the

ineffective assistance claim now before this Court was procedurally defaulted and

that the default should not be excused under Martinez, as it was not a substantial

claim. JA 316-77. By decision filed September 26, 2019, the district court adopted the

J. Enderlin, Esquire, represented him. However, Mr. Enderlin filed a motion to

withdraw (ECF #87), which was granted on October 14, 2015. ECF #88.

6 Meanwhile, Terry filed a successive PCR Application (2012-CP-32-02718), through

counsel, on June 29, 2012. Respondents made a Return and Motion to Dismiss on

July 30, 2012. Respondents filed an Amended Return and Motion to Dismiss on

October 3, 2014. The successive PCR was denied on June 19, 2018.

Report and Recommendation. App. 42a-76a. The district court found that the

procedural default of Terry's Martinez claim could not be excused because it found

that the underlying claim of ineffective assistance of trial counsel was not substantial.

App. 65a-68a. It denied Terry's subsequent motion to alter or amend that judgment,

as well as a certificate of appealability. App. 75a-76a; JA 439-45.

Terry timely appealed. The Fourth Circuit agreed with the district court and

found that Terry was not entitled to relief. App.la-39a. It found it did not need to

reach the question of whether original PCR counsel were ineffective because the

underlying claim of ineffective assistance of trial counsel was "insubstantial under

Martinez." App.

30a

& n.

11.

See also

Terry, App. 16a. "Vogelsang explained the relationship between Terry's upbringing

and brain damage." Id. Based upon her investigation, she concluded that: (1) Terry

9 She reviewed roughly four years of Mrs. Terry's diary entries, spanning from when

Terry was twelve until his arrest; school records for his immediate family and more

distant relatives; DSS records on Lou Ann and Terry; DSS records on his brothers,

Billy and Johnny; "records ... or documents on two of Billy's sons; the custody papers

for his sister Faye; Terry's corrections records, his priors, and the priors of his two

brothers and two uncles; medical records of Terry, his parents and his brothers

medical records; mental health records and psychological evaluations of Terry, his

sister Faye, his brother Johnny, and two of his nieces; the school psychosocial

education evaluations for one son and his daughter Ashley; "the reports of the crime"

and crime scene photographs; the SPECT scan report from the radiologist; a

statement from Dr. Jim Steele concerning the treatment of Terry's father; marriage

and birth certificates; and a portion of Terry's taped statement. JA 766-68.

was born to parents whose own lives and circumstances made it "very difficult for

them to parent effectively" and who could, as a result, only provide "the very basic

needs for their children;" (2) Terry had "some special developmental needs" and "there

were no resources for those and no family members" able to "help the family;" (3)

Terry's "environment was neglectful" because the family "had to put all [of] its energy

and effort into surviving financially;" (4) because of financial difficulties, the family

had "little energy or time left ... to give the children the kind of [necessary] attention,

the educational help, [or] the social skills in the forming of family relationships that

one would hope to see to produce healthy children;" (5) one side of the family had a

pattern of alcohol abuse; (6) there was a pattern of "rather unusual medical

problems," and of learning and emotional problems for both his immediate and

extended family; and (7) Terry's own "documented history of learning disabilities"

and of "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." With medical intervention, however,

Vogelsang opined it "entirely possible that he will be able to restrain himself and

adapt to prison life." JA 768-71.

While her sentencing testimony primarily focused on neglect and how Terry's

drug use impacted his abnormal brain functioning (JA 771-98), she also testified that

Terry, a sibling of smaller stature, was subject to violent encounters within his

nuclear family: "his teen-age [brothers] were arrested for beating him up. His parents

had them arrested. His dad broke his collarbone with a board." JA 784. Vogelsang

said she did not wish to "imply that family violence" was "the kind of pervasive

violence you find in a lot of homes where battering takes place"—just that there was

"some violence" within the Terry home that caused him to emit "signs and cues that

something was terribly wrong" from a very young age. JA 784. 10

Further, Vogelsang testified both of Terry's older brothers and his sister had

all lost custody of their children because they either abused or neglected them, and

Vogelsang emphasized the adverse "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.

Terry's parents, Patricia and Bill, testified to hardships the family faced after

Bill suffered a debilitating injury. Mrs. Terry testified to an apparent suicide attempt

by Terry from sniffing glue, in which he lost consciousness, at age thirteen. St. App.

1875-80. She further testified Terry first left home at fourteen after a fight with a

brother. The fight ended when their father broke Terry's collarbone with a flat board.

Terry left the house and went to the hospital. JA 692-93. She added that Terry and

his brothers "fought a lot" and that he began having "a lot of run-ins with his dad" at

twelve or thirteen. JA 688.

She learned that Terry eventually began getting into legal difficulties, of which

10 Terry implies in footnote 4 that counsel made inconsistent sentencing phase closing

arguments. Yet, he takes their closings out of context. Fullwood's focused upon the

statutory and other mitigating circumstances that jurors had heard, including Terry's

"mental disturbance," his "defective brain," the State's failure to present expert

testimony contradicting the defense's evidence of brain damage, and his adaptability

to prison. She also asked jurors to think about the impact of sentencing on Terry and

his family. JA 894-99. Aware the jury had already heard those points, Stone argued

that jurors did not have to base a life sentence on sympathy for Terry because the

medical evidence of brain damage supported sparing his life. JA 899-904.

the State had previously introduced evidence. She asked Terry's ex-wife, Tammy, at

one point to have Terry "put in a mental institution or somewhere for at least, an

evaluation." This intended intervention got "pushed aside" following the incident in

which he stabbed the prostitute and then fled to Florida. St. App. 1885-86. She

suspected that Terry used drugs and eventually discovered that he and Tammy had

been using marijuana. St. App. 1886-87.

Mrs. Terry also described a significant head injury that Terry had incurred

while working for a tree company in Florida, an earlier motorcycle accident, and a

head injury that he received when struck in the head with a board during yet another

fight. St. App. 1887. She claimed that when incarcerated after his return from

Florida, he once coughed up blood and was transported to the hospital. Further, she

claimed that she had found blood on his bedroom floor and that she had witnessed

him coughing blood when he lived with her. St. App. 1888-90. Mrs. Terry testified

Terry had problems with his memory and she had seen him stagger after the head

injury that he received in Florida. He had received medicine, which temporarily

helped with his problems. St. App. 1890.

Lou Ann Terry, Terry's wife at the time of the murder, testified that she and

Terry married in 1988 and have four children together. Their children have a loving

relationship with Terry and she loves him despite his adultery. Finally, she pleaded

with jurors to give Terry a life sentence. App. 1927-31.

Terry's new evidence.

In habeas, Terry presented evidence that in a 1996 interview with Terry,

Vivian Massey recorded that Terry's father had health problems and a temper, and

that Terry's father "beat the s— out of' Terry "with a belt," and would "slap" and

"whip" each of his children with "whatever he could reach when he got mad." JA 55.

Her interview stated that on one occasion when Terry was in high school, "daddy hit

him across the back with something and broke his shoulder blade. [Terry] remembers

being taken to [the] hospital." JA 55; see also JA 83 (affidavit of Patricia Terry); JA

90 (affidavit of Faye Servoss). Terry also relayed that "his mother was usually home

when all this was going on but she tried to stay out of the way

His mother didn't

discipline him - she left it up to his daddy." JA 55.

Mrs. Terry averred11 that her husband, Bill, "was very rough on the children,

and on me." JA 82. They married when she was only thirteen and he was twenty-one.

Bill was "very strong." JA 82. His children once saw him get angry and punch a hole

in the roof of the car. JA 88. He began beating the children at an early age and the

abuse got worse as his children got older. He would whip the children "with a belt" or

"hit at least one of the children" with his hand almost daily. JA 82, 84. Mrs. Terry

also detailed other examples of Bill's physical abuse of the children and his controlling

behavior. JA 82-90.

11 The state PCR judge found her testimony not credible (JA 1269), rendering her

credibility in habeas proceedings inherently suspect. Respondents submit that this

finding is supported by the record and Terry cannot overcome the presumption of its

correctness. See 28 U.S.C. § 2254(e)(1); see also Clemons u. Mississippi, 494 U.S. 738,

766 (1990) (Blackmun, J., concurring in part and dissenting in part) ("The trial judge

who hears the witnesses live, observes their demeanor and in general smells the

smoke of the battle is by his very position far better equipped to make findings of fact

which will have the reliability that we need and desire").

Terry's older sister Faye averred she wore "long-sleeved shirts to school,

regardless of the season, to hide the bruises." JA 87. Depending on how angry Bill

was, he would beat the children eight to ten times with "a leather and canvas piece

of a conveyor belt." JA 82; 87. He would make the children hold his hand during the

beatings, asking them, "Do you hate me?" JA 87. Faye averred that her mother

"contributed to the violence in the house by antagonizing daddy." She felt their

mother took Bill's side when he beat the children. JA 88; 91. Faye also described

incidences of her father's physical abuse and cruel behavior. JA 88-91.

Charles Register, Terry's uncle, averred that Bill beat Terry "with a stick"

when Terry was six. Register was upset by this "severe beating," and he and his son

left. JA 94. Register also averred that Terry's older brothers, who were larger and

stronger, would "physically and mentally abuse [Terry]." Rather than stopping the

fights, Bill "would allow them to beat one another up, and 'handle it' themselves." JA

95.

Counsel Fullwood, a Lexington County public defender, averred that "[o]ur

theory of the case was that Gary Terry's brain was physically abnormal and either

caused or substantially contributed to his criminal behavior. Accordingly he should

not be killed for a condition that is beyond his control." Mr. "Stone was responsible

for most of the scientific aspects of the trial, including the brain abnormality

testimony," while she "was responsible for other aspects of the social history, and

[she] prepared those witnesses." In 1) 12, she stated, "I do 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. It

was my intent to present all of the evidence of that nature that we could and all that

I was aware of was presented." JA 46-47.

Vogelsang's post-trial affidavit states that in reviewing her notes and speaking

to Terry's habeas counsel, she believed that "it is apparent that [Terry] 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."

However, she further averred that she did not have any "independent recollection" of

talking to Terry's other experts

and "only vaguely recall[ed]" the

mitigation

investigator, Ms. Massey. Indeed, Vogelsang admitted, "I could recall almost nothing

about this case." She repeatedly speculated as to why she had no memory and blamed

her lack of memory on counsel. JA 77-79.

Discussion.

The district court agreed with the magistrate's findings that "trial counsel

presented some evidence of [Terry's] childhood abuse, [Terry] has not presented any

evidence that trial counsel knew more information about the abuse than was

presented and cannot be faulted for their experts' failure to convey that information,

and the record suggests counsels' expert did not find the abuse significant at the

time." App. 65a. The district court further noted that Terry had not objected to these

findings. Id. See also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315

(4th Cir. 2005) (Where no objection is made, the Court need " 'only satisfy itself that

there is no clear error on the face of the record in order to accept the recommendation'

") (quoting Fed.R.Civ.P. 72, Advisory Committee note); accord Thomas v. Am, 474

U.S. 140, 150, 154 (1985) (observing "[i]t does not appear that Congress intended to

require district court review of a magistrate's factual or legal conclusions, under a de

novo or any other standard, when neither party objects to those findings" but stating

"while the statute does not require the judge to review an issue de novo if no objections

are filed, it does not preclude further review by the district judge").

The district court observed that there was "some evidence suggesting that

[Terry] and his family informed Vogelsang and Massey that [Terry's] father beat

[him] with a belt, beat [him] so hard he would bleed, saw his children as workhorses

and would not allow them to play, would tie the children to a tree and have them beat

each other." App. 66a. But, the court found Fullwood's affidavit did not support a

finding of deficient performance because counsel "did discover relevant information

about abuse and counsel intended to present all evidence regarding abuse to the jury."

App. 65a-66a. Based on Vogelsang's admission that she "could recall almost nothing

about this case," the district court found Vogelsang gave averments inconsistent with

her prior testimony, and thus speculated about why she had not included additional

evidence of abuse at trial. It concluded, "Her speculation is not enough to overcome

contradictory record evidence and create a genuine issue of fact and does not rebut

the strong presumption that counsel performed reasonably." App. 67a (citation

omitted). The district court further and correctly found that counsel had the right to

rely on the experts they retained and that "to the extent that any deficiency exists, it

falls to Vogelsang or Massey for not conveying the full extent of Petitioner's abuse to

counsel, and not to counsel." App. 66a-67a.

On de novo review, the Fourth Circuit explained that it had recently held 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.

[Owens v. Stirling, 967 F.3d 396, 423 (4th Cir. 2020), cert, denied, 141

S.Ct. 2513 (2021)].

29a-30a.

The Fourth Circuit likewise carefully compared the new evidence offered by

Terry with the actual mitigation counsel presented at sentencing. The Fourth Circuit

accurately characterized counsel's mitigation case as "a coherent mitigation case with

a clear theory for why the jury should have voted for life," App, 30a, and "robust."

App. 33a. It found it was unnecessary to address whether original PCR counsel were

ineffective because the underlying claim of ineffective assistance of trial counsel was

"insubstantial under Martinez." App. 30a & n. 11. The Court found that trial counsel

had "attempted to humanize Terry and presented extensive evidence of his difficult

childhood through testimony from his mother, father, and wife." App. 30a. The Court

then recounted some of the evidence detailed above, including evidence that Terry's

father had broken his collarbone, which the Court observed was "one of the few

specific instances of abuse against Terry in which the affiants testify." App. 30a-31a.

The Fourth Circuit likewise observed that:

Terry's counsel didn't limit their mitigation case to testimony from his

family members, however. They also called four experts, all of whom

presented unrebutted evidence of Terry's brain damage and its effects

on his behavior—particularly his ability to control his impulses and

make decisions. Vogelsang, who interviewed multiple family members

and also interviewed Terry four times, testified at length to the impact

of Terry's neglectful, and at times violent, childhood on his character.

Then in closing, Terry's counsel argued that the jury should spare his

life, because executing him would inflict unnecessary additional pain

and shame on his family, and because Terry's brain damage diminished

his responsibility for his violent behavior.

App. 31a.

The Fourth Circuit found that the district court had rejected Terry's ineffective

assistance claim for "good reason" because counsel had "discovered and presented

evidence of physical abuse." Further, counsel had "intended to present all evidence

regarding abuse to the jury. And they don't say now that they knew about the

evidence of abuse in the notes prepared by Massey and Vogelsang." App. 32a.

Although counsel Fullwood's file contained Massey's notes of further physical

abuse that was not presented, Terry did not present evidence she had read those

notes. Also, the Court determined that Vogelsang, the expert, was familiar with her

own handwritten notes, "presumably reviewed them and concluded that neglect had

a greater impact on Terry's behavior than the abuse of which she was aware."

Because "counsel had no reason to believe that Vogelsang's opinion was unfounded or

that Vogelsang failed to fully inform them of the circumstances of Terry's childhood,"

the Court found that "it's not unreasonable or contrary to prevailing professional

norms for counsel to rely on a qualified mitigation investigator or other experts" and

that counsel could "rely on Vogelsang' expert opinion concerning the causes of Terry's

behavior." 33a-34a (citing Rhode v. Hall, 582 F.3d 1273, 1283 (11th Cir. 2009); Wilson

v. Greene, 155 F.3d 396, 403 (4th cir. 1998).12

Noting that Terry's claim was made from hindsight, contra Strickland, 466

U.S. at 689, the Court observed that "[t]he widespread use of the tactic of attacking

trial counsel by showing 'what might have been' proves that nothing is clearer than

hindsight—except perhaps the rule that we will not judge trial counsel's performance

through hindsight." App. 34a (quoting Waters v. Thomas, 46 F.3d 1506, 1514 (11th

Cir. 1995) (en banc)). See also Waters, 46 F.3d at 1514 ("That other witnesses could

have been called or other testimony elicited usually proves at most the wholly

unremarkable fact that with the luxury of time and the opportunity to focus resources

on specific parts of a made record, post-conviction counsel will inevitably identify

shortcomings in the performance of prior counsel"). The Court also properly concluded

that "counsel conducted a reasonable investigation 'and they cannot be held

12 Terry asserts that "the most likely inference" from trial counsel's failure to present

evidence of abuse that was contained in counsel's file is that "counsel did not look at

their own file." Yet, he conveniently ignores counsel's ability to recall why she did not

present more evidence of physical abuse may have faded in the almost fifteen years

between the 1997 trial and counsel Fullwood's June 27, 2012 affidavit, and that trial

counsel could reasonably rely on their experts- Massey and Vogelsang - to develop

and present mitigation testimony relating to Terry's background and social history,

including evidence of childhood abuse. Indeed, "[i]f an attorney has the burden of

reviewing the trustworthiness of a qualified expert's conclusion before the attorney

is entitled to make decisions based on that conclusion, the role of the expert becomes

superfluous." Hendricks v. Calderon, 70 F.3d 1032, 1038 (9th Cir. 1995).

Terry's contention also ignores that he did not obtain an affidavit from counsel

Stone. So, there is no record of what he may recalled of why further evidence of abuse

was not presented.

accountable for information Petitioner and his family failed to provide or their experts

failed to convey.' " App. 34a (quoting district court).

The Fourth Circuit properly distinguished this Court's decision in Rompilla v.

Beard, 545 U.S. 374, 383 (2005), 34a-35a, where counsel failed to review a court file

and had they done so, they would have seen records that " 'would have destroyed the

benign conception of Rompilla's upbringing and mental capacity defense counsel had

formed from talking with Rompilla himself and some of his family members, and from

the reports of the mental health experts.' " 34a (quoting 545 U.S. at 391). The Court

likewise correctly distinguished its own precedent, Winston v. Pearson, 683 F.3d 489

(4th Cir. 2012), and Abdul-Salaam v. Secretary of Pennsylvania Department of

Corrections, 895 F.3d 254 (3rd Cir. 2018), on which Terry had relied. App. 35a-36a.

Finally, the Fourth Circuit concluded that Terry was not prejudiced by

counsel's allegedly deficient performance:

"The question of whether counsel's deficiency prejudiced the defense

centers on whether there is a reasonable probability that, absent

counsel's errors, the sentencer would have concluded that the balance of

aggravating and mitigating circumstances did not warrant death."

[Sigmon v. Stirling, 956 F.3d 183, 192 (4th Cir. 2020), cert denied, 141

S.Ct. 1094 (2021)] (cleaned up). A showing of prejudice "requires a

'substantial,' not just 'conceivable,' likelihood of a different result."

Cullen v. Pinholster, 563 U.S. 170, 189 (2011). To establish Strickland

prejudice, Terry must demonstrate "a reasonable probability that at

least one juror would have struck a different balance." Wiggins, 539 U.S.

at 537. In determining whether Terry has shown prejudice, we review

the "totality of the evidence before the judge or jury." Strickland, 466

U.S. at 695.

Here, the jury heard substantial mitigating evidence—about both

Terry's neglectful and somewhat violent childhood and his significant

brain damage. Four experts testified (without rebuttal from the state)

to the effects of brain damage on Terry's behavior, explaining in detail

how Terry's brain dysfunction limited his ability to control his behavior

and how the various aggravating circumstances raised by the state were

consistent with Terry's mental impairment. Nevertheless, the jury took

a little over an hour to recommend that Terry be sentenced to death.

The reason, in our view, is because the aggravating circumstances of

Terry's crimes, and his propensity for violence, were too much to

overcome. Before breaking into Jackson's house and murdering her,

Terry disconnected Jackson's telephone so that she couldn't call for help.

He brutally beat Jackson, likely striking her with two weapons and

hitting her head multiple times with a blunt object hard enough to crush

her skull. See J.A. 372 (where Dr. Carter opined that Terry used two

weapons during his assault on Jackson); State v. Terry, 529 S.E.2d at

276 (stating that Jackson's "cause of death was blunt trauma with skull

fracture and brain injury"). Terry also raped Jackson. This senseless

murder was the culmination of a life littered with crimes and a pattern

of violence, particularly toward women. [13] In the face of the state's case

in aggravation, we agree with the district court that there's no

reasonable probability that Terry's additional evidence of childhood

abuse would have led even one juror to conclude that "the balance of

aggravating and mitigating circumstances did not warrant death."

Sigmon, 956 F.3d at 192.

The affidavits from Vogelsang and Schwartz-Watts concerning the effect

of Terry's childhood abuse on their analyses confirms our conclusion.

Vogelsang doesn't explain how the additional evidence of abuse would

have changed her opinion, other than saying that the evidence "could

have shed light on why Gary is the way he is." J.A. 79. Dr. SchwartzWatts explains that, had she known that Terry suffered childhood

abuse, she would have opined that the abuse was "mitigating in its own

right" and "is also significant with respect to significant brain

dysfunction, as the abuse may have actually contributed to the

dysfunction." J. A. 102. Schwartz- Watts also states, "Terry had more

neurological dysfunction than any patient I have ever evaluated,

including those prior to 1997 and since." Id. But she doesn't connect this

observation to Terry's childhood abuse. And as we have already

explained, the evidence of abuse, though potentially mitigating in its

own right, doesn't overcome the mountain of aggravating evidence found

in the record and is not prejudicial in light of the robust, and unrebutted,

mitigation case Terry's trial counsel did present. See, e.g., McHone v.

Polk, 392 F.3d 691, 710 (4th Cir. 2004) (no prejudice from counsel's

failure to present evidence that as a child petitioner had witnessed his

13 The State's sentencing phase evidence is discussed at pp. 6-8, supra.

father "regularly inflict brutal beatings" on his mother and half-sister

when counsel had presented evidence that petitioner's father had

engaged in "violent fights" with his mother).

In sum, we're not persuaded that Terry's new mitigation theory would

have fared any better than the case that was actually presented. Thus,

even if counsel's performance was deficient, it wasn't prejudicial under

Strickland and thus doesn't excuse procedural default under Martinez.

App. 37a-39a (opinion footnotes 13 and 14 omitted) (footnote added).

Thus, both the district court and the Fourth Circuit engaged in precisely the

detailed comparison that this Court has instructed should be effected and both courts

faithfully applied this Court's precedent. Sometimes an unreasonable investigation

is more easily identified than others. See, e.g., Andrus v. Terns, 140 S.Ct. 1875, 1882-

83 (2020) (per curiam) ("counsel performed virtually no investigation" into "the

myriad tragic circumstances that marked Andrus' life");14 Porter v. McCollum, 558

U.S. 30, 40 (2009) (per curiam) ("Porter may have been fatalistic or uncooperative,

but that does not obviate the need for defense counsel to conduct some sort of

mitigation investigation") (emphasis in original); Wiggins, 539 U.S. at 531 and 535

(investigation limited to two record sources and counsel failed to adequately

investigate social background which included evidence of sexual abuse, mental

limitation, and homelessness); Rompilla, supra. In other cases, more consideration is

required. However, where, as here, there is reasonable investigation, showing

14 Terry attempts to analogize his case to Andrus, asserting that has never had the

opportunity to conduct discovery or present testimony on the question of his trial

counsel's ineffectiveness." His efforts are, at best, disingenuous. The affidavits and

other materials he submitted in support of this claim belie the claim he was unable

to conduct discovery. His problem is that the discovery he conducted simply does not

show the ineffectiveness of trial counsel that he has alleged.

something more was available is not enough.

For example, in Van Hook, trial counsel spoke with parents, other family and

friends "early and often" in preparation for the penalty phase; contacted experts;

reviewed Van Hook's "military history" and sought records; "looked into enlisting a

mitigation specialist when the trial was still five weeks away," and uncovered a

detailed history of childhood trauma, his drug and alcohol use and suicide attempts

among other details of his background. 588 U.S. at 9-11. This Court rejected Van

Hook's argument that counsel was ineffective in not continuing to look because more

was to be found: "This is not a case in which the defendant's attorneys failed to act

while potentially powerful mitigating evidence stared them in the face, or would have

been apparent from documents any reasonable attorney would have obtained. It is

instead a case, like Strickland itself, in which defense counsel's 'decision not to seek

more' mitigating evidence from the defendant's background 'than was already in

hand' fell 'well within the range of professionally reasonable judgments.' " Id. at 1112 (internal citations omitted) (quoting Strickland 466 U.S. at 699). The case reflects

application of long-established Strickland guidance.

Concentrating on the reasonableness of counsel's actions, as Strickland

requires, this Court has likewise rejected the concept that showing "more" mitigation

was available is on its face sufficient to establish prejudice. See Wong v. Belmontes,

558 U.S. 15, 28 (2009) ("Schick's mitigation strategy failed, but the notion that the

result could have been different if only Schick had put on more than the nine

witnesses he did, or called expert witnesses to bolster his case, is fanciful"). Here, the

absence of prejudice is underscored by trial counsel's presentation of evidence Terry's

father hit Terry with a board and broke his collar bone

True, more extensive evidence of abuse in the Terry home would be mitigating.

Yet, this additional evidence of abuse does not explain Terry's exceedingly violent

behavior—particularly his physically and sexually violent behavior directed towards

the victim and other women. On the other hand, the evidence that trial counsel

presented at the sentencing hearing offered such an explanation. The fact Terry's

current attorneys second-guess counsel's chosen strategy with hindsight, or assert

that a different strategy should have been followed does not establish ineffectiveness.

See Strickland, 466 U.S. at 689 ("A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel's challenged conduct, and to evaluate the

conduct from counsel's perspective at the time"); id. ("[t]here are countless ways to

provide effective assistance in any given case. Even the best criminal defense

attorneys would not defend a particular client in the same way"); Richter, 562 U.S. at

106. The claim was correctly deemed insubstantial.

III.

This

very

intensely

fact-specific

case

that

was

properly

resolved by the lower federal courts and will impact few others than

Terry.

The foregoing makes unerringly clear that certiorari should be denied because

Terry's is an intensely fact-specific case that was properly resolved by the lower

federal courts. As such, it will affect few others than him. See Wetzel v. Lambert, 565

U.S. 520, 528 (2012) ("We do not normally consider questions of the type presented

here, namely, fact-specific questions about whether a lower court properly applied

the well-established legal principles that it sets forth in its opinion"); United States

v. Johnston, 268 U.S. 220, 227 (1925) (same). See also Strickland, 466 U.S. at 689

("There are countless ways to provide effective assistance in any given case. Even the

best criminal defense attorneys would not defend a particular client in the same

way").

The outcome in Terry's case is not affected by the Court's recent grant

of certiorari in Shinn v. Ramirez, 141 S.Ct. 2620 (2021) to review the

decisions of the Ninth Circuit in Ramirez v. Ryan and Jones v. Shinn because

unlike Ramirez and Jones, here, the lower federal courts properly

determined that Terry had not presented a "substantial" claim of ineffective

assistance of trial counsel under Martinez. So, he could not be entitled to a

hearing on the procedurally defaulted claim.

IV.

In Jones v. Shinn,15 the Ninth Circuit rejected the State's argument that §

2254(e)(2) barred the district court "from considering new evidence developed to

overcome a procedural default under Martinez when considering the merits of the

underlying claim." Id. at 1220-21. The Court held that "Martinez's procedural-default

exception applies to merits review, allowing federal habeas courts to consider

evidence not previously presented to the state court." It found that the Congressional

limitations on evidentiary hearings in § 2254(e)(2) were inapplicable to a claim

brought under Martinez. Id. at 1221. Thus, the same evidence that was presented to

established cause and prejudice under Martinez could be used to establish the merits

15 See Jones v. Shinn, 943 F.3d 1211 (9th Cir. 2019), 943 F.3d 1211 (9th Cir. 2019),

rehearing and rehearing en banc denied, 971 F.3d 1133, cert, granted, 141 S.Ct. 2620

(2021).

of the underlying ineffective assistance of counsel clam. In Ramirez v. Ryan,16 the

Ninth Circuit held that even after the Martinez exception had been established by

the new evidence, the petitioner could present additional evidence in support of the

claim on the merits. The Court in Ramirez did not even discuss how the limitations

in§ 2254(e)(2) impacted that evidentiary presentation. See id. at 1242-51.

This Court recently granted certiorari in Shinn v. Ramirez, 141 S.Ct. 2620

(2021), to consider the following question presented by the State of Arizona in those

cases:

Does application of the equitable rule this Court announced in Martinez

v. Ryan render 28 U.S.C. § 2254(e)(2) inapplicable to a federal court's

merits review of a claim for habeas relief?

Terry asserts that "a ruling in favor of the Jones/Ramirez Respondents would

implicate Terry's case and would entitle him to a remand for an evidentiary hearing."

Petition, p. 16 n. 9. But, his contention puts the cart before the horse by ignoring that

the petitioners in both Jones and Ramirez presented "substantial" claims of

ineffective assistance by their trial attorneys, whereas here the lower federal courts

properly determined that Terry had not presented a "substantial" claim of ineffective

assistance of trial counsel under Martinez. So, he could not be entitled to a hearing

on the procedurally defaulted claim.17

16 See Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019), rehearing and rehearing en

banc denied sub nom., Ramirez v. Shinn, 971 F.3d 1116, cert, granted, 141 S.Ct. 2620

(2021).

17 Respondents agree with the arguments advanced by Arizona in Ramirez, but

submit that the outcome in Ramirez will not impact this Court's consideration of this

case for the reasons argued in this Brief.

Granting a petitioner, such as Terry, an evidentiary hearing to litigate

his procedurally defaulted ineffectiveness claim in federal habeas corpus,

where his newly-proffered evidence does not demonstrate that the claim is

"substantial" under Martinez, would needlessly "impose significant costs on

the federal courts," "aggravate the harm to federalism that federal habeas

review necessarily causes," and frustrate the important need for finality of

litigation of his convictions and sentence.

"Federal habeas courts reviewing the 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." Martinez, 566 U.S. at 9. The

Court in Davila v. Davis, 137 S.Ct. 2058, 2070 (2017), explained that "[fjederal habeas

review of state convictions 'entails significant costs,' ... ' 'and intrudes on state

sovereignty to a degree matched by few exercises of federal judicial authority,' ' " Id.

(Citations omitted).

Also, federal habeas review " 'degrades the prominence of the

[State] trial,' Engle v. Isaac, 456 U.S. 107, 127 (1982)], and it "disturbs the State's

significant interest in repose for concluded litigation [and] denies society the right to

punish some admitted offenders,' [Harrington v. Richter, 562 U.S. 86, 103 (2011)]

(internal quotation marks omitted)." Davila, 137 S.Ct. at 2070. Granting Terry an

evidentiary hearing to litigate his procedurally defaulted ineffective assistance of

trial counsel claim, where the evidence proffered in federal habeas does not reflect

that this is a "substantial" claim under Martinez would needlessly "impose significant

costs on the federal courts" and "aggravate the harm to federalism that federal habeas

review necessarily causes."

Further, "the principle of finality ... is essential to the operation of our criminal

justice system" because "[w]ithout finality, the criminal law is deprived of much of its

deterrent effect." Teague v. Lane, 489 U.S. 288, 309 (1989). Id. Teague added, "[t]he

fact that life and liberty are at stake in criminal prosecutions 'shows only that

'conventional notions of finality' should not have as much place in criminal as in civil

litigation, not that they should have none.' " Id. (Citation omitted). See also Mackey

v. United States, 401 U.S. 667, 691 (1971) (Harlan, J., concurring in judgments in

part and dissenting in part) ("No one, not criminal defendants, not the judicial

system, not society as a whole is benefited by a judgment providing that a man shall

tentatively go to jail today, but tomorrow and every day thereafter his continued

incarceration shall be subject to fresh litigation"); Ryan v. Schad, 570 U.S. 521, 525

(2013). "And when a habeas petitioner succeeds in obtaining a new trial, the ' 'erosion

of memory' and 'dispersion of witnesses' that occur with the passage of time,' ...

prejudice

the

government

and

diminish

the

chances

of a

reliable

criminal

adjudication." McCleskey v. Zant, 499 U.S. 467, 491 (1991) (citation omitted).

The crime in this case occurred Memorial Day weekend of 1994. Terry was

convicted and sentenced to death in 1997. Over the ensuing twenty-four years, he has

had direct review by the Supreme Court of South Carolina, a state PCR hearing,

certiorari review of the order denying PCR relief by the Supreme Court of South

Carolina and this Court, and federal habeas review by a magistrate judge, the district

court and the Fourth Circuit. Further, after Respondents had made a Return and

moved for summary judgment on his habeas claims (ECF #'s 31-32), the magistrate

judge granted Terry' previously-filed motion for a stay and abeyance under Rhines v.

Weber, 544 U.S. 269 (2005), to exhaust previously-unexhausted claims in a successive

state PCR action on December 10, 2012. Over objection, the stay was not lifted until

July 13, 2018. JA 115-16.

The present case underscores the correctness of Justice Scalia's prediction in

Martinez that:

... [I]n capital cases, the majority's decision will effectively reduce the

sentence, giving the defendant as many more years to live, beyond the

lives of the innocent victims whose life he snuffed out, as the process of

federal habeas may consume. I guarantee that an assertion of ineffective

assistance of trial counsel will be made in all capital cases from this date

on, causing (because of today's holding) execution of the sentence to be

deferred until either that claim, or the claim that appointed counsel was

ineffective in failing to make that claim, has worked its way through the

federal system.

Martinez,

566 U.S.

at 23

(Scalia,

J.,

dissenting)

(emphasis in original).

Cf.

Schneckloth v. Bustamonte, 412 U.S. 218, 275 (1973) (Powell, J., concurring) ("There

has been a halo about the 'Great Writ' that no one would wish to dim. Yet one must

wonder whether the stretching of its use far beyond any justifiable purpose will not

in the end weaken rather than strengthen the writ's vitality").

If the Court's decision in Martinez truly is a "narrow" or "limited" exception to

the general rule in Coleman, see Martinez, 566 U.S. at 9; id. at 16, as opposed to a

mechanism allowing habeas petitioners to end-run the necessity of presenting their

claims to the state courts in the first instance, then the need for finality demands an

end to Terry's effort to challenge to his state court sentence and the Court should

deny certiorari.

CONCLUSION

For the foregoing reasons, this Court should deny certiorari.

Respectfully Submitted,

ALAN WILSON

Attorney General of South Carolina

DONALD J. ZELENKA

Deputy Attorney General

MELODY J. BROWN

Senior Assistant Deputy Attorney General

*WILLIAM EDGAR SALTER, III

Senior Assistant Attorney General

Bv:s/ William Edgar Salter. Ill

WILLIAM EDGAR SALTER, III

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-6305

Attorneys for Respondents

esalter@scag. gov

*Counsel of Record

December 1, 2021

No. 21-6151

IN THE

SUPREME COURT OF THE UNTED STATES

GARY DUBOSE TERRY,

Petitioner,

BRYAN P. STIRLING, Commissioner, South Carolina Department of

Corrections; and Lydell Chestnut, Deputy Warden of Broad River

Correctional Institution Secure Facility,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

PROOF OF SERVICE

I, WILLIAM EDGAR SALTER, III, counsel for the Respondents, certify that

I have served the within Brief in Opposition on Petitioner by email and by depositing

two (2) copies of the same via Federal Express to his attorneys of record, Elizabeth

Franklin-Best, elizabeth@franklinbestlaw.com 2725 Devine Street, Columbia, South

Carolina 29205 and Hannah Freedman, hannah@iustice360sc.org, and Brendan Van

Winkle, brendan@iustice360sc.org 900 Elmwood Avenue, Suite 200, Columbia,

South Carolina 29201.

I further certify that all parties requiri

by Rule to be served have been

served.

This 1st day of December 2021.

WIL,LIAM EDGAR SALTER

Office of Attorney General

P. O. Box 11549

Columbia, South Carolina 29211

(803) 734-6305

ATTORNEY FOR RESPONDENTS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.