Petition for Writ of Certiorari — Bryan P. Stirling, Director, South Carolina Department of Corrections, et al., Petitioners v. Sammie Louis Stokes

Supreme Court briefJun 20, 2023

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APPENDIX

TABLE OF CONTENTS

Appendix A Opinion, United States Court of

Appeals for the Fourth Circuit

(March 22, 2023) . . . . . . . . . . . . . . App. 1

Appendix B Opinion, United States Court of

Appeals for the Fourth Circuit

(August 19, 2021) . . . . . . . . . . . . App. 38

Appendix C Order, United States District Court,

District of South Carolina

(September 28, 2018) . . . . . . . . App. 103

App. 1

APPENDIX A

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-6

[Filed March 22, 2023]

__________________________________________

SAMMIE LOUIS STOKES,

)

Petitioner – Appellant,

)

BRYAN P. STIRLING, Director, South

)

Carolina Department of Corrections;

)

LYDELL CHESTNUT, Deputy Warden of

)

Broad River Correctional Secure Facility,

)

Respondents – Appellees.

)

_________________________________________ )

Appeal from the United States District Court for the

District of South Carolina, at Aiken. R. Bryan Harwell,

Chief District Judge. (1:16-cv-00845-RBH)

Argued: October 26, 2022

Decided: March 22, 2023

Before GREGORY, Chief Judge, HARRIS, and

QUATTLEBAUM, Circuit Judges.

Vacated and remanded by published opinion. Chief

Judge Gregory wrote the opinion, in which Judge

App. 2

Harris joined. Judge Quattlebaum wrote a dissenting

opinion.

ARGUED: Paul Alessio Mezzina, KING & SPALDING

LLP, Washington, D.C., for Appellant. Melody Jane

Brown, OFFICE OF THE ATTORNEY GENERAL OF

SOUTH CAROLINA, Columbia, South Carolina, for

Appellees. ON BRIEF: Diana L. Holt, DIANA L.

HOLT, LLC, Columbia, South Carolina; Michele J.

Brace, VIRGINIA CAPITAL REPRESENTATION

RESOURCE CENTER, Charlottesville, Virginia;

Ashley C. Parrish, Joshua C. Toll, Isra J. Bhatty,

Edward A. Benoit, Alexander Kazam, Nicholas MecsasFaxon, KING & SPALDING LLP, Washington, D.C.,

for Appellant. Alan Wilson, Attorney General, Donald

J. Zelenka, Deputy Attorney General, Michael D. Ross,

Assistant Attorney General, J. Anthony Mabry, Senior

Assistant Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF SOUTH CAROLINA,

Columbia, South Carolina, for Appellees.

GREGORY, Chief Judge:

Sammie Louis Stokes filed a federal habeas petition

pursuant to 28 U.S.C. § 2254, raising constitutional

challenges to his death sentence in South Carolina

state court. In 2021, we held that Stokes’s death

sentence was constitutionally defective because his

trial counsel provided ineffective assistance during

sentencing. In reaching that conclusion, we relied in

part on evidence from an evidentiary hearing a

magistrate judge conducted during federal habeas

proceedings. Both Stokes and the State of South

Carolina (“the State”) asked us to consider that

evidence when evaluating Stokes’s ineffective-

App. 3

assistance-of-counsel claims. The State appealed to the

Supreme Court, which granted the State’s petition for

certiorari, vacated our 2021 judgment, and remanded

the case to this Court for further consideration in light

of its decision in Shinn v. Ramirez, 142 S. Ct. 1718

(2022).

In Shinn, the Supreme Court held that a federal

habeas court may not hold an evidentiary hearing

unless the restrictive conditions of 28 U.S.C.

§ 2254(e)(2) are satisfied. On remand, the State claims

that Shinn requires us to revisit our prior opinion

because we relied on evidence produced during the

federal evidentiary hearing. However, the State

forfeited this argument by choosing not to raise it

during earlier proceedings before this Court, even

though it was aware that § 2254(e)(2) might not permit

the evidentiary hearing the magistrate judge held. We

decline to exercise our discretion to excuse the State’s

forfeiture, which would potentially reinstate an

unconstitutional death sentence and result in grave

injustice. Because the State abandoned any argument

that our prior opinion relied on inadmissible evidence,

we reaffirm that opinion and direct the district court to

order resentencing.

In 1999, Stokes was convicted of murder and related

charges in South Carolina state court and sentenced to

death. After an unsuccessful direct appeal, Stokes filed

an application for postconviction relief (“PCR”) in state

court. Stokes’s counsel in the state PCR proceedings

initially raised a Sixth Amendment ineffectiveassistance-of-counsel claim based on his trial attorneys’

App. 4

failure, at sentencing, to present any mitigating

evidence regarding Stokes’s severely traumatic

childhood. However, state PCR counsel later dropped

that claim and, as a result, did not exhaust it in state

court. The state court ultimately denied Stokes’s

application for relief after finding that the other

constitutional challenges he raised lacked merit. The

Supreme Court of South Carolina and the U.S.

Supreme Court both denied Stokes’s petitions for

review.

With the assistance of new counsel, Stokes then

filed a habeas petition in the U.S. District Court for the

District of South Carolina pursuant to 28 U.S.C.

§ 2254. His petition alleged multiple ineffectiveassistance claims, including the claim that trial counsel

failed to investigate, develop, and present personal

mitigating evidence during sentencing. The State

moved for summary judgment. Because Stokes had not

exhausted this or other claims in state court, a

magistrate judge held an evidentiary hearing in

January 2018 to determine whether there was cause to

excuse the procedural default under Martinez v. Ryan,

566 U.S. 1 (2012). In states like South Carolina, where

a defendant cannot raise an ineffective-assistance

claim until collateral proceedings, Martinez authorizes

federal courts to excuse a petitioner’s procedural

default if (1) state PCR counsel’s performance was

itself constitutionally deficient, and (2) the petitioner’s

underlying ineffectiveness-of-trial-counsel claim is

“substantial.” Id. at 14; see also Gray v. Zook, 806 F.3d

783, 788 (4th Cir. 2015) (explaining that Martinez

established a “narrow exception to the general rule . . .

App. 5

that errors committed by state habeas counsel do not

provide cause to excuse a procedural default”).

Before the hearing, the State argued that 28 U.S.C.

§ 2254(e)(2) did not allow the court to receive evidence

related to the merits of Stokes’s underlying

constitutional claims. However, it agreed that the court

could hear evidence that went to the excuse of default

under Martinez (which, because of its substantiality

requirement, necessarily overlaps with the underlying

claim). The State reiterated this limited objection at

the beginning of the evidentiary hearing. During the

hearing, the magistrate judge at times described the

evidence as relating to the Martinez issue. However,

she permitted Stokes’s habeas counsel to introduce

lengthy testimony regarding the mitigation evidence

that trial counsel could have introduced at Stokes’s

sentencing, including testimony from the two trial

attorneys themselves.

After the evidentiary hearing, the magistrate judge

issued a Report and Recommendation that

recommended denying all relief. In the Report and

Recommendation, the magistrate judge conducted an

in-depth analysis of Stokes’s ineffective-assistance-oftrial-counsel claims—relying on evidence from the

hearing—and concluded that they failed. See J.A. 37331

(“Petitioner has not met his burden of showing that

trial counsel were deficient, and, thus, has also failed

to show that they were ineffective.”); J.A. 3734 (“[E]ven

if Petitioner were able to establish deficiency by trial

Citations to the “J.A.” refer to the Joint Appendix filed by the

parties in this appeal.

App. 6

counsel, his ineffective-assistance-of-trial-counsel claim

lacks merit, as he has not shown resulting prejudice for

the reasons explained below.”). The State “filed no

objection and agree[d] with the Magistrate’s Report

and Recommendation.” J.A. 3797. The district court

also agreed with the magistrate judge’s conclusions and

denied Stokes relief. See J.A. 3849 (concluding that

Stokes “fail[ed] to show Strickland prejudice” based on

trial counsel’s failure to present mitigating evidence).

Stokes then filed an appeal with this Court. During

briefing and oral argument, the State never argued

that § 2254(e)(2) prohibited us from considering

evidence from the federal evidentiary hearing when

evaluating his ineffectiveness-of-trial-counsel claims.

To the contrary, the State relied heavily on the federal

evidentiary hearing record and exhibits submitted

during the § 2254 proceedings to argue that Stokes’s

claims failed on the merits. See, e.g., Resp. Br. 31–32,

36–41, 48–52.

This Court vacated the district court’s decision.

Stokes v. Stirling, 10 F.4th 236, 239 (4th Cir. 2021).

Starting with the Martinez question, we held that

Stokes’s state PCR counsel were ineffective because

they “fail[ed] to develop and present a claim based on

trial counsel’s mitigation efforts.” Id. at 245. We

focused on state PCR counsel’s failure to adequately

investigate Stokes’s traumatic personal background or

retain an expert who could “screen for mental or

psychological defects,” even though they “knew about

adversity in Stokes’s background from trial counsel’s

cursory investigation” and “hired their own

investigator, whose additional interviews generated

App. 7

rich leads about Stokes’s psychological, educational,

and familial history.” Id. at 247. We rejected the State’s

argument that state PCR counsel had abandoned the

mitigation claim for strategic reasons, in part because

they admitted at the federal evidentiary hearing that

they had no strategic justification for not pursuing it.

Id. at 247–49. After concluding that Stokes’s

underlying ineffectiveness-of-trial-counsel claim was a

“substantial” one, we excused Stokes’s procedural

default under Martinez. Id. at 250–51.

Proceeding to the merits of Stokes’s underlying

claim, we held that his trial counsel provided

ineffective assistance by failing to investigate, develop,

and present personal mitigation evidence. Id. at 251.

As to Strickland’s deficient performance prong, trial

counsel failed to conduct an adequate investigation into

Stokes’s “extraordinarily traumatic childhood,” during

which he suffered chronic sexual and physical abuse

and witnessed firsthand his parents’ substance abuse

and their subsequent deaths. Id. at 240; see Strickland

v. Washington, 466 U.S. 668, 687–88 (1984). This

omitted evidence was particularly important because

trial counsel did not meaningfully contest Stokes’s

guilt, instead choosing to focus their defense on

sentencing. See Stokes, 10 F.4th at 241. Although they

“had little-to-no experience preparing a mitigation

defense,” they failed to consult any experienced

attorneys, hired an inexperienced investigator,

neglected to pursue the investigator’s findings, and

chose not to consult the expert witnesses they did

retain about the compelling mitigating evidence. Id. at

251–52. In addition, trial counsel’s decision to withhold

what personal mitigating evidence they had collected

App. 8

was objectively unreasonable. Id. at 252. At the federal

evidentiary hearing, they testified that they decided to

withhold the evidence because they believed jurors

would react negatively to Stokes’s life story. See id. at

252–53. We concluded that this rationale was

objectively unreasonable, particularly considering that

trial counsel failed to offer any personal mitigating

evidence. Id. The defense’s sole witness at sentencing

was a retired warden and “prison adaptability expert”

who had never spoken to Stokes and said nothing about

the trauma Stokes experienced as a child. See id. at

253.

Turning to Strickland’s prejudice prong, we held

that trial counsel’s deficient performance prejudiced

Stokes. Id. at 254–56; see Strickland, 466 U.S. at

694–95. While recognizing the substantial aggravating

evidence, we determined there was a reasonable

probability at least one juror would have voted against

a death sentence had they heard the compelling

mitigating evidence. Stokes, 10 F.4th at 256. Because

trial counsel were constitutionally ineffective, we

directed the district court to issue the writ of habeas

corpus unless the State granted Stokes a new

sentencing hearing.2 Id. at 239.

On appeal, Stokes also challenged the district court’s decision

denying him relief on two additional ineffective-assistance claims.

The first alleged that one of Stokes’s trial attorneys labored under

a conflict of interest because he had previously prosecuted Stokes

for assaulting his ex-wife, who testified as a State witness during

Stokes’s capital sentencing. The other claim focused on trial

counsel’s decision to rely on retired warden James Aiken, a prison

adaptability expert, as the defense’s sole witness during

sentencing. We did not reach those claims in our opinion.

App. 9

The State sought rehearing en banc, which we

denied. It then filed a petition for a writ of certiorari in

the Supreme Court. In both its petition for a rehearing

en banc and its cert. petition, the State argued that

§ 2254(e)(2) prohibited this Court from considering

evidence from Stokes’s federal evidentiary hearing

when analyzing the merits of his ineffective-assistance

claim. See Petition for Rehearing En Banc, Dkt. No. 81,

at 14–15; State’s Cert. Petition, Stirling v. Stokes,

No. 21-938, 2021 WL 6102329, at **34–35 (Dec. 21,

2021).

The Supreme Court did not act on the State’s

petition until it decided Shinn v. Ramirez. In Shinn, it

held that “under § 2254(e)(2), a federal habeas court

may not conduct an evidentiary hearing or otherwise

consider evidence beyond the state-court record based

on ineffective assistance of state postconviction

counsel” unless § 2254(e)(2)’s “narrow exceptions”

apply. 142 S. Ct. at 1734, 1739. This prohibits a

petitioner from introducing evidence to support either

their underlying constitutional claim or a Martinez

claim that state PCR counsel were ineffective. See id.

at 1739–40.

On May 31, 2022, the Supreme Court granted

certiorari, vacated this Court’s judgment, and

remanded to the Fourth Circuit “for further

consideration in light of Shinn.” Stirling v. Stokes, 142

S. Ct. 2751, 2751 (2022). On remand, we directed the

parties to file simultaneous supplemental briefs

addressing two issues: (1) whether the State waived

the § 2254(e)(2) argument decided in Shinn by failing

to raise it during earlier proceedings; and (2) what

App. 10

other issues this Court should consider when weighing

Shinn’s impact on our prior decision. Those issues are

before us now.

II.

We start by considering whether the State waived

or forfeited the argument that § 2254(e)(2) prohibited

us, in our 2021 opinion, from relying on the evidence

produced during the federal evidentiary hearing.3 We

conclude that it forfeited the argument by not raising

it on appeal and instead using evidence from the

hearing to argue that Stokes’s ineffective-assistance

claims failed on the merits. Because it would produce

manifest injustice for Stokes, we decline to exercise our

discretion to excuse the State’s forfeiture.

It is well-established that “[a] party’s failure to raise

or discuss an issue in [its appellate] brief is to be

deemed an abandonment of that issue.” Mayfield v.

Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d

369, 377 (4th Cir. 2012) (quoting 11126 Baltimore

Blvd., Inc. v. Prince George’s Cty., Md., 58 F.3d 988,

993 n.7 (4th Cir. 1995)). “Even appellees waive

Some of the precedents we quote in this opinion use “waiver” and

“forfeiture” interchangeably, but the terms technically have

different meanings. “Forfeiture” refers to a party’s inadvertent

failure to raise an argument; a court has discretion to reach a

forfeited issue. See Wood v. Milyard, 566 U.S. 463, 471–74 & n.4

(2012). By contrast, “waiver” refers to a knowing, and intelligent

decision to abandon an issue. Id. Unlike a forfeited issue, a court

does not have discretion to reach an issue that a party has waived.

Id.

App. 11

arguments by failing to brief them.” Mironescu v.

Costner, 480 F.3d 664, 677 n.15 (4th Cir. 2007) (quoting

United States v. Ford, 184 F.3d 556, 578 n.3 (6th Cir.

1999)); see Hillman v. I.R.S., 263 F.3d 338, 343 n.6 (4th

Cir. 2001). In Hillman, we explained that an appellee

need not state the precise relief sought on appeal,

because Federal Rule of Appellate Procedure 28(b)

clearly exempts appellees from that particular

requirement. 263 F.3d at 343 n.6. But we distinguished

a statement of the relief sought from a “substantive

legal argument” and clarified that failing to brief the

latter “risk[s] . . . abandonment of [the appellee’s]

argument.”4 Id. Enforcing waiver and forfeiture rules

against appellees reflects the principle that we “apply

[these] rules on a consistent basis” so that they

“provide a substantial measure of fairness and

certainty to the litigants who appear before us.” United

States v. Holness, 706 F.3d 579, 592 (4th Cir. 2013).

On multiple occasions, this Court has declined to

address an argument that an appellee did not raise

properly on appeal. In United States v. Clay, for

example, we concluded that the appellee’s “newly

minted argument, made for the first time at oral

argument, is waived in this appeal” because the

As our dissenting colleague recognizes, the Hillman majority

concluded that the appellees’ “failure to specify in their briefs the

alternative relief they desired does not prevent us from granting

such relief.” Id. (emphasis added). But the majority drew a

distinction between an appellee’s failure to request an alternative

form of relief (e.g., a remand) and an appellee’s “failure to raise a

substantive legal argument,” explaining that only the latter would

result in forfeiture. Id. Here, the State makes a substantive legal

argument about § 2254(e)(2) that may be forfeited.

App. 12

appellee failed to raise it in its brief. 627 F.3d 959, 966

n.2 (4th Cir. 2010). Similarly, in Mironescu, we

declined to address whether the district court had

violated the Suspension Clause by denying a habeas

petitioner (the appellee) an opportunity to present

certain claims because the petitioner did not raise the

issue on appeal. See 480 F.3d at 677 n.15 (citing

Hillman, 263 F.3d at 343 n.6).

So, too, here. In his opening appellate brief, Stokes

cited to evidence from the federal evidentiary hearing

to support his Martinez claim and his underlying

ineffectiveness-of-trial-counsel claims. The State, in its

response brief, relied heavily on evidence from that

hearing to argue that the district court correctly

rejected Stokes’s claims on the merits. Even assuming

the State preserved a § 2254(e)(2) objection in the

district court—which is anything but clear5—it

Before the magistrate judge, the State argued only that

§ 2254(e)(2) prohibited new evidence of Stokes’s underlying

ineffectiveness-of-trial-counsel claim. But the magistrate judge’s

analysis of that claim went further than was necessary to conclude

that the claim was not “substantial” for purposes of Martinez. See

Stokes, 10 F.4th at 250 n.8. When assessing the underlying claim,

the magistrate judge took the new evidence into account, which

was exactly what the State had argued was not permitted under

§ 2254(e)(2). However, the State did not object to the magistrate’s

analysis in the district court, which suggests it was content to

argue that the magistrate correctly denied Stokes relief on the

merits. We have explained that “a litigant who raises an issue

before the magistrate judge but fails to make a timely objection

directed to that issue before the district judge is in a position

similar to that of a litigant who fails to raise the issue at all prior

to appeal.” Arakas v. Comm’r, Soc. Sec. Admin., 983 F.3d 83, 103

(4th Cir. 2020); see also id. (stating that such a failure “constitutes

App. 13

abandoned that argument on appeal by inviting this

Court to consider the new evidence. Courts have held

that a government appellee abandons an issue by

taking one position at one stage of an appeal and then

asserting a contrary position at a later stage, which is

exactly what the State attempted to do here. See

Steagald v. United States, 451 U.S. 204, 208–11 (1981);

United States v. Smith, 781 F.2d 184, 184–85 (10th Cir.

1986).

The State now claims its appellate brief discussed

the evidence from the federal hearing only in relation

to the Martinez excuse-of-default question—that is, to

support its argument that Stokes’s underlying

ineffectiveness-of-trial-counsel claim was not

“substantial.” But a cursory look at the State’s brief

shows that its use of the evidence was not so limited.

The brief cited to dozens of pages from the federal

evidentiary hearing transcript in an effort to fully

establish that “deficient performance and prejudice do[]

not exist under Strickland v. Washington.” Resp. Br. 31

(cleaned up); see id. at 31–32, 36–41, 48–50, 51–52.

Nor was it enough that the State belatedly raised

the § 2254(e)(2) argument in its petition for a rehearing

en banc. This Court “generally do[es] not consider

issues raised for the first time in a petition for

rehearing.” United States v. Carter, 471 F. App’x 136,

a waiver of appellate review”). Ultimately, we need not determine

whether the State also forfeited the § 2254(e)(2) argument in the

district court, as its failure to raise the issue on appeal is

dispositive.

App. 14

137 (4th Cir. 2012) (per curiam). We see no reason to

depart from that rule here.

No other precedent in this Circuit requires a

contrary result. In Young v. Catoe, we remarked that

the appellees had raised an alternative ground for

affirming the district court’s judgment “via the

unnecessary vehicle of cross-appeal.” 205 F.3d 750, 762

n.12 (4th Cir. 2000). According to the State, Young

establishes that appellees are not bound by waiver and

forfeiture rules. But Young suggests only that the party

who prevailed in the district court is not required to file

a separate cross-appeal to preserve an argument. This

does not mean that an appellee can ignore an issue in

its briefing without forfeiting it.

Nor does our decision in Mahdi v. Stirling generally

exempt appellees from waiver and forfeiture rules. 20

F.4th 846 (4th Cir. 2021). There, the state PCR court

had held that a habeas petitioner waived a particular

claim. Id. at 895. When the petitioner tried to raise the

same claim in federal district court, the court rejected

it on the merits without addressing his earlier waiver

in state court. Id. On appeal, this Court relied on the

petitioner’s state-court waiver to affirm, even though

“neither the Parties nor the district court address[ed]”

it. Id. In the State’s view, Mahdi shows that an

appellee does not forfeit an argument (there, the

petitioner’s state-court waiver) by failing to raise it in

the district court or on appeal. But at most, Mahdi is a

reminder that we have discretion to affirm based on a

ground that neither party addresses. It does not

establish that an appellee is immune from waiver and

forfeiture rules.

App. 15

Finding no support in Fourth Circuit precedents,

the State seeks refuge from other circuits, some of

which have stated that appellees generally are “not

required to raise all possible alternative grounds for

affirmance in order to avoid waiving any of those

grounds.” Independence Park Apartments v. United

States, 449 F.3d 1235, 1240 (Fed. Cir. 2006); see, e.g.,

Ms. S. v. Reg’l Sch. Unit 72, 916 F.3d 41, 48–49 (1st

Cir. 2019). But even in those circuits, courts have

discretion to enforce waiver and forfeiture rules against

appellees; enforcement “depends on the particular facts

of the case.” Ms. S., 916 F.3d at 49 (quotation marks

omitted). In a similar context, our sister circuits have

held that the law-of-the-case doctrine may bar

appellees from raising in a successive appeal an issue

they failed to raise during the first. See, e.g., Haynes

Trane Serv. Agency, Inc. v. Am. Standard, Inc., 573

F.3d 947, 963 (10th Cir. 2009) (enforcing appellee’s

waiver when it would be “unfair” to the appellant to

excuse it); Schering Co. v. Ill. Antibiotics Co., 89 F.3d

357, 358–59 (7th Cir. 1996) (enforcing appellees’ waiver

because the appellees, “by reserving their challenge to

the district court’s evidentiary ruling[,] have put

themselves in the position of asking us to reexamine

our previous ruling on the basis of [previously

available] evidence”).

Accordingly, we hold that the State forfeited the

§ 2254(e)(2) argument by failing to raise it on appeal.

In an effort to avoid the consequences of its

forfeiture, the State claims we must reach the issue sua

App. 16

sponte because § 2254(e)(2) imposes jurisdictional

limits on the authority of federal courts. We disagree.

The Supreme Court “has long rejected the notion

that all mandatory prescriptions, however emphatic,

are . . . properly typed jurisdictional.” Gonzalez v.

Thaler, 565 U.S. 134, 146 (2012) (quotation marks

omitted). A rule is jurisdictional only “[i]f the

Legislature clearly states that [it] shall count as

jurisdictional.” Id. at 141–42 (emphasis added). In

Gonzalez, for example, the Supreme Court held that 28

U.S.C. § 2253(c)(1) satisfies this clear statement rule

because it expressly provides that “an appeal may not

be taken to the court of appeals” unless a judge issues

a certificate of appealability. Id. at 142. By contrast,

§§ 2253(c)(2) and (c)(3)—which set “threshold

condition[s]” for granting a certificate of appealability

—are not jurisdictional because they do not clearly

“speak in jurisdictional terms.” Id. at 142–43.

Likewise, § 2254(e)(2) does not “speak in

jurisdictional terms” and therefore is not a

jurisdictional rule. Id. at 143. In full, it provides as

follows:

(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—

(i) a new rule of constitutional law, made

retroactive to cases on collateral review

App. 17

by the Supreme Court,

previously unavailable; or

that

was

(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 by clear and convincing

evidence that but for constitutional error, no

reasonable factfinder would have found the

applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). In other words, this part of the

Antiterrorism and Effective Death Penalty Act

(“AEDPA”) establishes evidentiary rules for federal

habeas proceedings. See Cullen v. Pinholster, 563 U.S.

170, 186 (2011) (explaining that § 2254(e)(2) “restricts

the discretion of federal habeas courts to consider new

evidence when deciding claims that were not

adjudicated on the merits in state court”). Critically, it

applies only when a court already has jurisdiction over

the habeas claim. As Gonzalez makes clear, even

mandatory limits on a court’s authority in a case

properly before it do not qualify as jurisdictional. While

§ 2254(e)(2) states that “the court shall not hold an

evidentiary hearing” unless the statutory conditions

are met, the Supreme Court has repeatedly clarified

that the word “shall,” without more, does not render a

statute jurisdictional. Gonzalez, 565 U.S. at 146; Dolan

v. United States, 560 U.S. 605, 611–12 (2010).

The text of a neighboring AEDPA provision

reinforces our conclusion. Section 2254(b)(3) provides

that “[a] State shall not be deemed to have waived the

App. 18

exhaustion requirement or be estopped from reliance

upon the requirement unless the State, through

counsel, expressly waives the requirement.” 28 U.S.C.

§ 2254(b)(3). In other words, this provision expressly

exempts states from forfeiting arguments concerning a

petitioner’s procedural default. Section § 2254(e)(2), of

course, contains no such language. When read

alongside the express no-forfeiture provision in

§ 2254(b)(3), this indicates Congress chose not to

immunize states from forfeiting evidentiary objections

based on § 2254(e)(2).

We also find it relevant that in Shinn itself, the

Supreme Court treated § 2254(e)(2) as a nonjurisdictional provision subject to the ordinary rules of

forfeiture. In response to the petitioner’s argument that

the state of Arizona had forfeited its § 2254(e)(2)

defense, the Supreme Court did not hold that

§ 2254(e)(2) is a non-waivable jurisdictional provision,

though that question was raised in the briefing. Brief

for Respondents at 61–63 & n.16, Shinn v. Ramirez,

142 S. Ct. 1718 (2022) (No. 20-1009), 2021 WL

4197216. Instead, the Court considered whether

Arizona had in fact forfeited its defense and then

exercised its “discretion to forgive any forfeiture,” see

Shinn, 142 S. Ct. at 1730 n.1—as would be appropriate

if and only if § 2254(e)(2) is a non-jurisdictional rule

subject to waiver and forfeiture.

In short, we see no reason to treat this case any

differently than the Supreme Court has treated

forfeitures of other defenses to federal habeas claims:

we have discretion to excuse the forfeiture, but we are

not obligated to do so. See id.; Day v. McDonough, 547

App. 19

U.S. 198, 208–09 (2006) (timeliness of habeas

petitions); Schiro v. Farley, 510 U.S. 222, 229 (1994)

(nonretroactivity defense).

The next question, then, is whether we should

exercise our discretion to excuse the State’s forfeiture

in this case. We decline to do so because it would

produce marked injustice and reward the State for

“sandbagging” this Court during earlier proceedings.

Hillman, 263 F.3d at 343 n.6.

“[A] federal court does not have carte blanche to

depart from the principle of party presentation basic to

our adversary system.” Wood v. Milyard, 566 U.S. 463,

472 (2012). In a few different cases, the Supreme Court

has explained when it may be appropriate to excuse a

state’s failure to raise other defenses to federal habeas

claims. Excusing a state’s forfeiture is warranted in

“extraordinary circumstances,” where the state

“inadvertently” overlooked the issue earlier in the

proceedings. Id. at 471 (cleaned up). But before

reaching the issue, a court “must assure itself that the

petitioner is not significantly prejudiced by the delayed

focus on the [] issue, and ‘determine whether the

interests of justice would be better served’” by reaching

it. Day, 547 U.S. at 210 (quoting Granberry v. Greer,

481 U.S. 129, 136 (1987)); see also Arakas v. Comm’r,

Soc. Sec. Admin., 983 F.3d 83, 105–06 (4th Cir. 2020)

(stating that waiver and forfeiture rules “are devised to

promote the ends of justice,” and that this Court may

App. 20

reach a forfeited issue “where injustice might otherwise

result”).6

Stokes contends that the State did not merely forfeit

the § 2254(e)(2) argument, but made a conscious,

intelligent decision to waive it, which would make it

unreviewable. See Day, 547 U.S. at 210 n.11; see also

Milyard, 566 U.S. at 471 n.5 (“[A] federal court has the

authority to resurrect only forfeited defenses.”).

However, we have explained that a party may “waive”

an issue only in the district court, and that a party’s

“decision not to advance [an] argument on appeal is

better treated as abandonment or forfeiture.” Manning

v. Caldwell for City of Roanoke, 930 F.3d 264, 271 n.6

(4th Cir. 2019) (en banc); see also United States v.

Simms, 914 F.3d 229, 238 n.4 (4th Cir. 2019) (en banc)

(stating that “waiver, in a technical sense, concerns a

party’s relinquishment of rights before a district court”

This Court also has discretion to reach a forfeited issue “where

there is an intervening change in the case law.” Arakas, 983 F.3d

at 105. But that applies only if the issue “was not previously

available”—meaning there was “‘strong precedent’ prior to the

change, such that the failure to raise the issue was not

unreasonable and the opposing party was not prejudiced by the

failure to raise the issue sooner.” United States v. Chittenden, 896

F.3d 633, 639 (4th Cir. 2018) (quoting Holland v. Big River

Minerals Corp., 181 F.3d 597, 605–06 (4th Cir. 1999)). Here, prior

to Shinn, the Fourth Circuit had not addressed whether

§ 2254(e)(2) bars a federal evidentiary hearing for claims brought

under Martinez. See Moore v. Stirling, 952 F.3d 174, 182 & n.7 (4th

Cir. 2020). In the proceedings before the magistrate judge, the

State acknowledged this was an open question. D.S.C. Dkt.

No. 159, at 4–5. Thus, the intervening-change-in-law exception is

inapplicable here.

App. 21

(emphasis in original)). Thus, the State did not

irrevocably waive the § 2254(e)(2) argument on appeal.

That said, the nature of the State’s forfeiture is

relevant as we consider which direction “the interests

of justice” point. Day, 547 U.S. at 210. Here, the record

strongly suggests that the State made a conscious,

strategic decision not to litigate the § 2254(e)(2) issue

on appeal. The State recognized the issue early in the

proceedings; before the evidentiary hearing, it argued

that § 2254(e)(2) prevented the magistrate judge from

receiving or considering new evidence on Stokes’s

underlying ineffectiveness-of-trial-counsel claim. But

on appeal to this Court, the State did not merely fail to

argue that the statute prohibited us from considering

the new evidence; it relied extensively on the evidence

produced during the evidentiary hearing to argue that

Stokes’s underlying claim lacked merit. See Resp.

Br. 31–32, 36–41, 48–50, 51–52; see also id. at 71

(“[Stokes] had a full opportunity to present the merits

of his claim at an evidentiary hearing.”). In short, the

State invited this Court to use the evidence for the very

purpose it had previously argued (and now belatedly

argues) is prohibited. This is worlds apart from the

forfeiture the Supreme Court excused in Day, which

involved “merely an inadvertent error” and where

“nothing in the record suggest[ed] that the State

‘strategically’ withheld the defense or chose to

relinquish it.” Day, 547 U.S. at 211.

It is unsurprising that the State does not engage

with the Supreme Court’s decisions in Day or Wood,

given that considerations of justice and fairness point

so strongly against excusing its forfeiture. It is difficult

App. 22

to conceive of a case where a party would be more

“significantly prejudiced” by a decision to reach an

unpreserved issue. Id. at 210. We have already held

that Stokes was deprived of his Sixth Amendment right

to effective counsel during his capital sentencing. The

State now urges us to strike that decision—and rubberstamp an unconstitutional death sentence—based on

an evidentiary limitation the State knew might apply

but invited us to ignore on appeal. If excusing the

State’s forfeiture in this scenario best served “the

interests of justice,” id., justice would be a hollow word

indeed.

Nothing in Shinn requires us to excuse the State’s

forfeiture here. In Shinn, Arizona had not objected to

some evidentiary development during habeas

proceedings in the district court. See 142 S. Ct. at 1730

n.1. On appeal to the Supreme Court, the petitioner

argued that Arizona had also failed to raise the

§ 2254(e)(2) issue during the Ninth Circuit appeal. The

Supreme Court disagreed, noting that “Arizona did

object to further factfinding before the Ninth Circuit

panel” and that the “Ninth Circuit passed upon

§ 2254(e)(2) when it ordered additional factfinding on

remand.” Id. The Supreme Court then exercised its

discretion “to forgive the State’s forfeiture before the

District Court” because “our deciding the matter now

will reduce the likelihood of further litigation in a 30year-old murder case.” Id. (quotation marks omitted).

The present case is different than Shinn in

important respects. The record in Shinn indicated that

Arizona made “an inadvertent error” by neglecting to

App. 23

raise the § 2254(e)(2) argument in the district court,

Day, 547 U.S. at 210, but then sought to correct that

error by raising the issue on appeal, which gave the

Ninth Circuit an opportunity to consider it. Here, by

contrast, the State abandoned the § 2254(e)(2)

argument as soon as the magistrate judge

recommended denying Stokes relief on the merits, and

actually relied on the new evidence when arguing that

trial counsel were not constitutionally ineffective. This

“suggests that the State ‘strategically’ withheld the

defense or chose to relinquish it.” Id. And beyond the

obvious injustice it would create, overlooking the

State’s decision not to litigate the § 2254(e)(2) issue

certainly would not “enhanc[e] the efficiency of the

decisionmaking process and the conservation of scarce

judicial resources.” Holness, 706 F.3d at 592. The State

now tells us that our close review of the federal-court

record was a waste of time, even though it asked us to

look to that very evidence to rule on the merits of

Stokes’s claims.

To be sure, the Shinn Court looked to a state’s

interest in the finality of a criminal conviction and

sentence to justify excusing Arizona’s forfeiture of the

§ 2254(e)(2) argument. But such finality interests do

not require us to reach a forfeited issue when doing so

would lead to an unjust result. See Day, 547 U.S. at

210–11 (recognizing that non-jurisdictional AEDPA

rules may be forfeited despite “implicat[ing] values

beyond the concerns of the parties,” including the

“finality [of] state court judgments”) (quoting Acosta v.

Artuz, 221 F.3d 117, 123 (2d Cir. 2000)). In fact, the

Supreme Court has noted that a court’s discretionary

authority to excuse unintentional forfeitures itself

App. 24

affords sufficient respect to federal-state comity

interests. See Milyard, 566 U.S. at 471 (“With that

comity interest in mind, we held that federal appellate

courts have discretion, in exceptional cases, to consider

a[n argument] inadvertently overlooked by the State in

the District Court” (cleaned up).).

Finally, the State points out that the Supreme

Court granted certiorari, vacated our prior decision,

and remanded for further proceedings, even though

Stokes’s brief in opposition to certiorari argued that the

State had forfeited the § 2254(e)(2) argument. See Brief

in Opposition at 33–36, Stirling v. Stokes, 142 S. Ct.

2751 (2022) (mem.) (No. 21-938), 2022 WL 769491. But

a decision to grant certiorari, vacate, and remand for

further consideration in light of new Supreme Court

precedent does not resolve questions of waiver or

forfeiture. See, e.g., Dick v. Oregon, 140 S. Ct. 2712,

2712 (2020) (mem.) (Alito, J., concurring in decision to

grant, vacate, and remand) (“I concur in the judgment

on the understanding that the Court is not deciding or

expressing a view on whether the question was

properly raised below but is instead leaving that

question to be decided on remand.”). Indeed, in

previous cases returned to this Court following a grant,

vacate, and remand order, we have reaffirmed our prior

opinion because a litigant had waived or forfeited the

relevant issue. See United States v. Vanegas, 612

F. App’x 664, 666 (4th Cir. 2015) (per curiam); United

States v. One Male Juvenile, 149 F. App’x 213, 214 (4th

Cir. 2005) (per curiam). We are not breaking any new

ground by doing the same here.

App. 25

A § 2254 petitioner faces no shortage of procedural

obstacles in federal court, most of which are unrelated

to the actual merits of his or her constitutional claims.

For petitioners like Stokes, who (through no fault of his

own) did not exhaust a claim in state PCR proceedings,

AEDPA erects a high wall to excusing that procedural

default, even as § 2254(b)(3) shields states that fail to

timely raise a procedural default defense. And even

when new evidence would show cause for excusing a

petitioner’s procedural default, that evidence is almost

never admissible in federal court. See Shinn, 142 S. Ct.

at 1734.

That the playing field in § 2254 cases tilts heavily in

the State’s favor comes as no surprise—AEDPA was

enacted to “make[] winning habeas relief more

difficult.” Brown v. Davenport, 142 S. Ct. 1510, 1526

(2022). But here, the State takes a step too far, telling

us we must ignore its own flagrant forfeiture so it can

enforce a death sentence we have already held was

unconstitutional. Nothing in § 2254(e)(2), Shinn, or any

other precedent requires us to reach such a perverse

result, which would transform a “difficult” task for

Stokes into a Sisyphean one. Id.

Our forfeiture rules exist to “provide a substantial

measure of fairness and certainty to the litigants who

appear before us,” and “we strive to apply [them] on a

consistent basis.” Holness, 706 F.3d at 592. We have

not hesitated to enforce these rules against criminal

defendants on remand from a grant, vacate, and

remand order. See Vanegas, 612 F. App’x at 666.

Fairness dictates that we hold the State to the same

App. 26

standard, especially in a capital case. See Rummel v.

Estelle, 445 U.S. 263, 272 (1980) (noting that a death

sentence raises “unique” concerns).

Because the State abandoned any argument that

our prior opinion conflicts with § 2254(e)(2), and we

find no justification for overlooking its forfeiture, we

decline to revise our prior opinion.7

III.

For the reasons stated above, we reaffirm our prior

decision holding that Stokes’s trial counsel provided

constitutionally ineffective assistance. Accordingly, we

direct the district court to issue the writ of habeas

corpus unless the State grants Stokes a new sentencing

hearing within a reasonable time. The district court’s

order dismissing Stokes’s habeas petition is

VACATED AND REMANDED.

QUATTLEBAUM, Circuit Judge, dissenting:

Previously, we reversed the judgment of the district

court that dismissed Sammie Stokes’ 28 U.S.C. § 2254

habeas petition and instructed the district court to

grant the petition due to the ineffective assistance

provided by Stokes’ trial counsel. But the Supreme

Court vacated our judgment and remanded the case to

us with instructions to reconsider Stokes’ petition in

The State separately argues that our prior opinion misapplied the

Strickland test. These arguments rest in large part on

mischaracterizations of our analysis, and they give us no reason to

doubt our conclusion that Stokes’s trial counsel were

constitutionally ineffective.

App. 27

light of Shinn v. Ramirez, 142 S.Ct. 1718 (2022). In

Shinn, the Court held that 28 U.S.C. § 2254(e)(2)

prohibits a federal habeas court from conducting

evidentiary hearings or otherwise considering evidence

not developed in state court based on the ineffective

assistance of state post-conviction counsel. Id. at 1734.

Critically, that is exactly the type of evidence upon

which Stokes, and the opinion the majority reinstates,

rely. Both rely substantially, if not entirely, on

evidence developed at an evidentiary hearing during

federal habeas proceedings. Make no mistake about

it—Stokes’ petition and the opinion the majority

reinstates today are inescapably at odds with Shinn.

So, I would remand for the district court to rule on

Stokes’ petition based solely on the state court record.

Despite the Supreme Court’s express instruction for

us to reconsider this case in light of Shinn, the majority

holds that we can ignore that decision’s holding

because the State forfeited the § 2254(e)(2) issue by not

raising it prior to the State’s petition for rehearing. In

my view, the State did not forfeit the § 2254(e)(2)

argument. But even if it did, I would excuse such

forfeiture. In sum, I would do what the Supreme Court

instructed us to do—reconsider Stokes’ petition in light

of Shinn. And Shinn forecloses habeas relief based on

evidence developed in federal court. Accordingly, I

dissent.

I begin with a review of Shinn. There, two

petitioners were convicted of capital crimes in Arizona

state court and sentenced to death. The Arizona

Supreme Court affirmed the convictions and sentences

App. 28

on direct review. The petitioners were also denied state

post-conviction relief. After both filed for federal habeas

relief, the respective district courts held that the

petitioners’ ineffective assistance of trial counsel claims

were procedurally defaulted because they did not

properly present those claims in state court. Id. at

1729.

In one case, the district court permitted the

petitioner to supplement the record to include evidence

that was not presented in state court to support his

request to excuse the procedural default. Id. The

district court excused the procedural default based on

the new evidence but rejected the ineffective assistance

of counsel claim on the merits. The Ninth Circuit, like

the district court, held that the state post-conviction

counsel’s failure to develop the trial ineffective

assistance of counsel claim constituted sufficient cause

to forgive the procedural default. And it reversed and

remanded for the development of more evidence on the

merits of the ineffective assistance of counsel claim,

which it considered to be substantial.

In the other case, the district court held an

evidentiary hearing to determine whether cause

existed to excuse the procedural default and if

declining to hear the claim would result in actual

prejudice. The district court forgave the procedural

default and held, on the merits, that the state trial

counsel provided ineffective assistance of counsel. Id. at

1730. Arizona appealed, arguing that § 2254(e)(2) did

not permit the evidentiary hearing. The Ninth Circuit

affirmed in that case, holding that § 2254(e)(2) did not

apply because the state post-conviction counsel was

App. 29

ineffective in failing to develop the state court record.

Id. Both petitioners did not dispute, and therefore

conceded, that their habeas petitions failed based on

the state court records alone. Id.

The Supreme Court reversed the Ninth Circuit,

holding that the federal habeas courts may not conduct

an evidentiary hearing or consider evidence beyond the

state court record. The Court reasoned that § 2254(e)(2)

did not permit extending Martinez v. Ryan, 556 U.S. 1

(2012)1 to allow ineffective assistance of post-conviction

counsel to excuse a prisoner’s failure to develop the

state court record. It explained that in § 2254(e)(2),

Congress limited the authority of federal courts to

conduct such hearings. Federal courts, Shinn makes

clear, “have no power to redefine when a prisoner” has

failed to develop the factual basis of a claim in state

court proceedings. Id. at 1736. “Where Congress has

erected a constitutionally valid barrier to habeas relief,

a court cannot decline to give it effect.” Id. (internal

citation omitted) (“§ 2254(e)(2) is a statute that we

have no authority to amend.”).

Since Shinn, the Supreme Court reiterated

§ 2254(e)(2)’s limitation on the power of federal courts

in Shoop v. Twyford, 142 S. Ct. 2037 (2022). There, the

Court held that the district court’s Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) review

was limited to “the record that was before the state

Martinez recognized that “[i]nadequate assistance of counsel at

initial-review collateral proceedings may establish cause for a

prisoner’s procedural default of a claim of ineffective assistance at

trial.” Martinez v. Ryan, 566 U.S. 1, 9 (2012).

App. 30

court.” Id. at 2046 (internal quotation marks and

citation omitted). And the circuit courts that have

addressed this question post-Shinn have acknowledged

the Supreme Court’s clear guidance precluding federal

courts from conducting evidentiary hearings or

considering evidence beyond the state court record. See,

e.g., Houston v. Phillips, No. 20-6102, 2022 WL

3371349 (6th Cir. Aug. 16, 2022) (“In short, federal

habeas courts are prohibited, by statute, from granting

evidentiary hearings when petitioners have ‘failed to

develop the factual basis of [their] claim[s] in State

court proceedings.’” (quoting Shinn, 142 S.Ct. at 1728));

Williams v. Superintendent Mahanoy SCI, 45 F.4th

713, 720 (3d Cir. 2022) (“AEDPA does not allow us to

excuse Williams’s separate failure to develop the record

just because his state post-conviction lawyer did a bad

job . . . . We are therefore limited to the facts developed

in state court.”).

Without question, Shinn abrogates the opinion the

majority reinstates. The opinion’s analysis and

conclusions about Stokes’ ineffective counsel claim

depend almost entirely on the record developed before

the magistrate judge in federal court. That is the

precise type of evidence that § 2254(e)(2) prohibits. As

the Supreme Court explained, federal courts “have no

power” to develop or consider this evidence. Shinn, 142

S. Ct. at 1736. There is simply no way to square the

opinion the majority reinstates with Shinn.2

And neither Stokes nor the majority suggests that Stokes

satisfies the narrow exceptions of § 2254(e)(2). Section 2254(e)(2)

permits a federal habeas court to hold an evidentiary hearing

where an applicant has failed to develop the basis of the claim in

App. 31

II.

For good reason, the majority does not even try to

justify its decision under Shinn. Instead, it concludes

that the State forfeited the application of § 2254(e)(2)’s

ban on evidentiary hearings by not previously raising

it before us in its brief or at oral argument. I disagree.

First, the State preserved the § 2254(e)(2) issue in

the district court. As the majority acknowledges, the

State objected to the magistrate judge’s decision to

conduct a hearing to develop evidence outside the state

court record several times. Then, in its summary

judgment filings, the State asserted that Stokes

improperly included and relied “upon documents that

were not a part of the state court record.” J.A. 2838. It

also moved to strike such evidence, noting that

§ 2254(e)(2) expressly limits the district court’s ability

to accept new evidence. And, although not in our

record, the State filed a pretrial brief on the scope of

the district court’s ability to accept new evidence,

arguing that § 2254(e)(2) “bars the grant of an

evidentiary hearing to receive evidence not in the state

court record on the underlying claims of ineffective

state court only where the applicant shows that: (1) the claim

relies on “a new rule of constitutional law made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable” or “a factual predicate that could not have

been previously discovered through the exercise of due diligence”;

and (2) “the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have found the

applicant guilty of the underlying offense.” 28 U.S.C. § 2254 (e)(2).

App. 32

assistance of counsel.” Stokes v. Stirling, No. 1:16-CV00845-RBH (D.S.C.), ECF No. 159. It added that the

“Martinez equitable decision does not trump the clear

direction by Congress.” Id. Over the State’s objections,

the magistrate judge conducted an evidentiary hearing

and considered evidence developed from that hearing.

But even upon considering such evidence, it

recommended granting summary judgment to the State

and denying Stokes’ habeas petition, and the district

court, with certain modifications, adopted those

recommendations.

When Stokes then appealed to us, it is true that the

State did not raise the § 2254(e)(2) issue in its briefs or

at oral argument. It certainly could have raised the

issue as an alternative ground for relief in its brief or

at oral argument. As the Supreme Court has stated,

“without filing a cross-appeal or cross-petition, an

appellee may rely upon any matter appearing in the

record in support of the judgment below.” Blum v.

Bacon, 457 U.S. 132, 137 n.5 (1982).3 But just because

an appellee is permitted to raise such alternative

arguments does not mean that failing to do so forfeits

them.

True, an appellant is considered to have abandoned

an argument not included in his opening briefs. See A

Florida and Georgia call it the “tipsy coachman” rule borrowing

from Oliver Goldsmith’s poem “Retaliation”: “The pupil of impulse,

it forc’d him along, His conduct still right, with his argument

wrong; Still aiming at honour, yet fearing to roam, The coachman

was tipsy, the chariot drove home.” Carraway v. Armour & Co.,

156 So. 2d 494, 497 (Fla. 1963); see also Lee v. Porter, 63 Ga. 345,

346 (1879).

App. 33

Helping Hand, LLC v. Baltimore Cnty., 515 F.3d 356,

369 (4th Cir. 2008). But there is good reason for

treating an appellant and an appellee differently. They

are in materially different procedural postures. As the

losing party before the district court, the appellant

seeks relief on appeal. As such, the appellant carries

the burden of establishing an error. The appellee, in

contrast, won below. The appellee only seeks to

maintain the status quo. And without a burden to show

that the judgment below should be altered, we should

not require the appellant to raise an argument at the

risk of forfeiture.

Here, the first time the State sought relief from us

was when it moved for rehearing of our panel decision

that reversed the district court’s order granting it

summary judgment. At that point, it raised

§ 2254(e)(2)’s prohibition against the use of evidence

beyond the state court record. And it continued to press

the issue in petitioning the Supreme Court for

certiorari after we denied its petition for rehearing. So,

every time the State bore the burden of showing error,

it raised § 2254(e)(2). Under these facts, I would not

find the State forfeited the issue.

To be fair, the circuits appear divided on this issue.

See Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th

Cir. 1995) (unlike the obligations of the appellant, the

briefing requirements for the appellee’s brief are not

considered categorical imperatives since a court of

appeals may affirm the district court on any grounds

supported by the record, including grounds not relied

on by the district court or contained in the appellee’s

brief); International Ore & Fertilizer Corp. v. SGS

App. 34

Control Servs., Inc., 38 F.3d 1279, 1286 (2d Cir. 1994)

(“This rule applies even when the alternate grounds

were not asserted until the court’s questioning at oral

argument.”); Kennedy v. City of Villa Hills, Ky., 635

F.3d 210, 214 n.2 (6th Cir. 2011) (noting that appellees

do not waive claims by failing to respond to appellant’s

arguments on appeal); see also Eichorn v. AT&T Corp.,

484 F.3d 644, 657-58 (3d Cir. 2007) (concluding that

appellees were not required to raise all possible

alternative grounds for affirmance to avoid waiving

those grounds); Laitram Corp. v. NEC Corp., 115 F.3d

947, 954 (Fed. Cir. 1997) (recognizing that appellees do

not select the issues to be appealed); but see Hamilton

v. Southland Christian Sch, 680 F.3d 1316, 1318-19

(11th Cir. 2012)(concluding that the appellee

abandoned a defense by failing to list or state it as an

issue on appeal).

In deciding that the State forfeited the issue, the

majority joins the Eleventh Circuit’s approach. It

suggests that result is dictated by Mayfield v. National

Association for Stock Car Auto Racing, Inc., 674 F.3d

369 (4th Cir. 2012), United States v. Clay, 627 F.3d 959

(4th Cir. 2010), Mironescu v. Costner, 480 F.3d 664 (4th

Cir. 2007), and Hillman v. I.R.S., 263 F.3d 338 (4th

Cir. 2001). But while those cases provide some support

for the majority’s conclusion, they do not settle the

issue. Mayfield involved the obligations of appellants,

not appellees, which, as already explained, are in

materially different procedural positions. The pertinent

language in Mironescu and Clay are dicta contained in

footnotes. And Hillman actually rejected the argument

that the taxpayers had forfeited their alternative

argument by not including it in their appellee’s brief,

App. 35

finding that the “failure to specify in their briefs the

alternative relief they desired does not prevent us from

granting such relief.” Hillman, 263 F.3d at 343, n. 6. To

be sure, part of the majority’s reasoning was that the

alternative argument related to the form of available

relief rather than a separate substantive argument.

But it nonetheless allowed the taxpayers to pursue an

argument they had not briefed. So, I do not agree that

our precedent compels a finding of forfeiture.

But even if the State forfeited an argument that

§ 2254(e)(2) precluded the evidentiary hearing, I would

excuse. We retain the “inherent authority to consider

and decide pertinent matters that otherwise may be

ignored as abandoned or waived.” United States v.

Holness, 706 F.3d 579, 592 (4th Cir. 2013). And for

several reasons, we should exercise our discretion to do

so here.

First, the Supreme Court instructed us to consider

the appeal in light of Shinn. And it did so over Stokes’

objections that the State had forfeited the § 2254(e)(2)

issue. I realize that we should not generally consider

the Court’s decision to grant certiorari, vacate an

opinion and remand to express a view on the merits.

See, e.g., Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001).

But in Shinn, this same issue arose. There, the habeas

petitioner “allege[d] that Arizona forfeited any

§ 2254(e)(2) argument in his case because it did not

object to some evidentiary development in the District

Court or before the Ninth Circuit panel.” Shinn, 142

S.Ct. at 1730 n.1. Even so, the Supreme Court said that

it had “discretion to forgive any forfeiture,” and chose

App. 36

to do so because doing so would reduce the likelihood of

further litigation in decades old murder cases. Id. We

should hesitate to chart a path so at odds with the one

traversed by the Supreme Court.

Second, as described above, § 2254(e)(2) does not

involve a discretionary decision or claims processing

issue. It limits the power of federal courts. To me,

exercising our discretion so that our decision does not

extend beyond the limits Congress placed on federal

courts is appropriate.

Third, declining to excuse any forfeiture reinstates

an opinion that, by any measure, is directly foreclosed

by the Supreme Court’s holding in Shinn. Any

frustration with the State not raising the § 2254(e)(2)

issue to us sooner should not cause us to issue an

opinion inconsistent with current Supreme Court law.

Fourth, the majority explains that one of the

reasons we should not excuse forfeiture is because

doing so would allow an unconstitutional sentence to

stand. I disagree with that conclusion for two reasons.

One, in determining that the sentence was

unconstitutional, the panel majority considered

evidence that, by law, we cannot consider. And two, I

would not deny his petition. Although I find it hard to

see how Stokes could succeed if, as the law requires,

his petition is limited to the state court record, I would

nevertheless remand the case to the district court to

evaluate the petition in accordance with § 2254(e)(2)

and Shinn.

App. 37

III.

The decision we reinstate today could not possibly

stand under Shinn. It is based on evidence that

§ 2254(e)(2) precludes federal courts from developing

and considering. Shinn requires that we remand the

case to the district court for consideration of Stokes’

petition based solely on the state court record.

App. 38

APPENDIX B

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-6

[Filed August 19, 2021]

__________________________________________

SAMMIE LOUIS STOKES,

)

Petitioner – Appellant,

)

BRYAN P. STIRLING, Director,

)

South Carolina Department of Corrections; )

MICHAEL STEPHAN, Warden of Broad

)

River Correctional Institution,

)

Respondents – Appellees.

)

__________________________________________)

Appeal from the United States District Court for the

District of South Carolina, at Aiken. R. Bryan Harwell,

Chief District Judge. (1:16-cv-00845-RBH)

Argued: May 6, 2021

Decided: August 19, 2021

Before GREGORY, Chief Judge, HARRIS, and

QUATTLEBAUM, Circuit Judges.

App. 39

Reversed and remanded by published opinion. Chief

Judge Gregory wrote the opinion, in which Judge

Harris joined. Judge Quattlebaum wrote a dissenting

opinion.

ARGUED: Paul Alessio Mezzina, KING & SPALDING

LLP, Washington, D.C., for Appellant. Michael Douglas

Ross, OFFICE OF THE ATTORNEY GENERAL OF

SOUTH CAROLINA, Columbia, South Carolina, for

Appellees. ON BRIEF: Diana L. Holt, DIANA L.

HOLT, LLC, Columbia, South Carolina; Michele J.

Brace, VIRGINIA CAPITAL REPRESENTATION

RESOURCE CENTER, Charlottesville, Virginia;

Ashley C. Parrish, Joshua C. Toll, Isra J. Bhatty,

Edward A. Benoit, KING & SPALDING LLP,

Washington, D.C., for Appellant. Alan Wilson, Attorney

General, Donald J. Zelenka, Deputy Attorney General,

Melody J. Brown, Senior Assistant Deputy Attorney

General, OFFICE OF THE ATTORNEY GENERAL OF

SOUTH CAROLINA, Columbia, South Carolina, for

Appellees.

GREGORY, Chief Judge:

Sammie Louis Stokes confessed to capital murder,

putting mitigation of the death penalty at the heart of

his defense. His trial counsel prepared some personal

mitigation evidence but, at the last minute, withheld it.

Instead, counsel presented a single witness at

sentencing: a retired prison warden who was

unprepared and counterproductive. The jury returned

a death sentence without hearing a word from the

defense about Stokes as an individual. In

postconviction proceedings, new counsel found more

information about Stokes’s traumatic upbringing, but

App. 40

failed to pursue a mitigation-based ineffective

assistance of counsel claim. We conclude that

postconviction counsel were ineffective, providing good

cause for Stokes’s procedural default of such a claim.

On the merits, we find that trial counsel’s failure to

adequately investigate and present personal evidence

was objectively unreasonable and prejudicial. We

reverse the district court order dismissing Stokes’s

petition and remand for issuance of the writ unless the

State grants resentencing.

Stokes’s childhood in Branchville, South Carolina

was marked by extreme abuse and neglect. His parents

were serious alcoholics. Stokes initially lived with his

father. He met his mother, Pearl, for the first time

when he was four years old. When he was five, Stokes

went to live with Pearl and met his sister Sara for the

first time.

Pearl lived with a man, Richard, whom the kids

regarded as a stepfather. As one relative put it, the

family lived in a “run-down wooden shack” without

running water or indoor plumbing. Richard and Pearl

sometimes took the children along to clubs and bars,

and other times the children were left unsupervised.

Stokes and Sara often skipped school and sometimes

stole food from neighbors to eat. On some weekends,

they stayed with their paternal grandmother, who ran

a liquor house and brothel out of her home. When

Stokes was nine years old, his father died suddenly on

App. 41

the front lawn, where Stokes saw his body. Afterwards,

the kids lived with Pearl and Richard permanently.

The children witnessed and suffered physical and

sexual abuse. Richard sexually abused Sara, regularly

and openly. When Sara was as young as 13 years old,

Pearl sometimes “gave” Sara to men as “payment” in

exchange for car rides. Stokes was disciplined by

whippings with an extension cord. Pearl and Richard

fought explosively. One witness recalled Pearl being

hospitalized after Richard broke a bottle over her head;

Stokes recalled Richard breaking her jaw. When Stokes

was 13, he witnessed his mother, on the couch,

intoxicated, as she fell into a coma and then died,

leaving Stokes parentless.

Stokes remembers his mother’s death as a point

when his life turned for the worse. Stokes and Sara

briefly lived with an aunt but ultimately chose to live

unsupervised with Richard. Stokes began using drugs

and alcohol. He attended under-resourced schools

where his failure to progress was ignored. Stokes

repeated the eighth grade three times, yet only stopped

attending school at age 18, when he was in the ninth

grade. Around age 11 or 12, Stokes had been sexually

abused by a babysitter. Thereafter, he had many sexual

encounters, and at age 15, impregnated two partners.

At that same age, a “relationship” began between

Stokes and Audrey Smith, a friend of his mother’s, who

was almost ten years older than him. Stokes was

“obsessed” with Smith, and their relationship was often

tumultuous. When Stokes was 18 and Smith was 27,

they married.

App. 42

According to the child development expert retained

by Stokes’s federal counsel, these facts amount to an

extraordinarily traumatic childhood that impaired

Stokes’s future emotional regulation and social

adaptation.1

In 1988, Stokes was convicted of assaulting Smith

with a knife. Soon after his release in 1990, the couple

became involved again. Before long, Stokes assaulted

Smith for a second time, choking her in a park and

leaving her unconscious. He was convicted of that

assault in 1991 and sentenced to ten years. While

serving the sentence, in 1998, Stokes was cellmates

with Roy Toothe. Toothe’s mother, Pattie Syphrette,

lived with his children and their mother, Connie

Snipes. Syphrette wanted to gain custody of her

grandchildren by having Snipes killed. Stokes agreed

to carry out the murder for $2,000.

Stokes was released from prison several months

later. Within weeks, he and Syphrette met to make

plans. Syphrette falsely told Snipes that she had

kidnapped and planned to murder Doug Ferguson, a

The expert, Dr. James Garbarino, applied the Centers for Disease

Control and Prevention’s well-known “Adverse Childhood

Experiences” (ACE) standard to quantify the adversity Stokes

experienced on a ten-point scale. According to Dr. Garbarino, only

13 percent of the population have an ACE score of four or greater,

with less than one percent scoring seven or greater. Based on his

evaluation, Dr. Garbarino concluded Stokes has an ACE score of

nine, meaning he was exposed to more childhood adversity than

999 out of 1,000 individuals on average. See generally J.A.

2173–2201.

App. 43

man who sometimes lived with them. Syphrette invited

Snipes to join, and Snipes agreed. Stokes also invited

Norris Martin, a longtime friend from childhood.

Martin, who has an intellectual disability, was a

“follower” of Stokes growing up. Snipes went with

Syphrette, Stokes, and Martin on a drive to an isolated

area. While Syphrette waited by the car, Snipes walked

with Stokes and Martin into the woods. Though the

factual accounts differ about exactly what happened

next, it is undisputed that Stokes drew a gun and held

Snipes at gunpoint; Martin raped Snipes, followed by

Stokes; and Martin and Stokes each shot Snipes once

in the head, killing her. When a car passed nearby,

they fled, leaving the body in the woods where it was

found days later. At the scene, police found a hat, knife,

and wallet belonging to Martin. The group was

arrested soon after, and Stokes penned a detailed

confession in county jail.

Martin later testified to further details about the

crime. According to Martin, Stokes instigated the rape

and murder of Snipes; Stokes was especially abusive,

anally raping Snipes and using Martin’s knife to

mutilate her breasts; Stokes pushed the gun into

Martin’s hand and forced him to pull the trigger; and

Stokes mutilated the corpse, cutting off a portion of the

scalp and cutting off the genitals.

The jury also heard about the subsequent murder of

Doug Ferguson. In the days after the Snipes murder,

Syphrette feared Ferguson’s knowledge of her plans to

murder Snipes. Syphrette enlisted Stokes and a friend,

Faith Lapp, to kidnap Ferguson. The group had bound

Ferguson with duct tape when police arrived at

App. 44

Syphrette’s home. Ferguson died of suffocation from his

bindings. In a subsequent prosecution, Stokes pleaded

guilty to Ferguson’s murder.

In 1998, the trial court appointed Thomas Sims as

Stokes’s lead counsel and Virgin Johnson as second

chair. The lawyers were former prosecutors with

several years of experience in private practice. They

had some limited death penalty experience, but little to

no experience preparing a mitigation defense. Trial

preparation spanned nine months. Sims and Johnson

began preparing mitigation evidence six months in.

Trial counsel’s efforts on the mitigation investigation

totaled around 45 hours out of the hundreds they

billed. They hired their fact investigator’s receptionist

as the mitigation investigator, though she had no prior

experience with mitigation investigations. She was

conducting an interview the same day that the jury

reached its initial verdict.

The guilt phase of the trial began on October 25,

1999. The parties agreed to restrict the guilt phase to

a bare recitation of the facts and reserve any

aggravating facts about the crime for the penalty

phase. Four days later, the jury returned a guilty

verdict after an hour’s deliberation. For the penalty

phase, trial counsel decided to focus on prison

adaptability: they planned to argue that Stokes’s

health condition made him especially suitable for a life

sentence. Stokes was HIV-positive. His health was

declining significantly around this time; he even

needed an emergency blood transfusion in the days

before trial. Trial counsel retained a neurologist who

App. 45

was prepared to testify to evidence of brain damage

possibly caused by AIDS. They also prepared a forensic

psychiatrist to testify that Stokes was likely to

imminently die of AIDS in prison.

Stokes was hesitant about this strategy, and trial

counsel knew it. They repeatedly intervened to secure

his consent. For example, a memorandum by the

mitigation investigator describes a “very tense

meeting” with Stokes five days before trial, in which

Stokes opposed disclosing his HIV status. J.A. 2544.

She secured his approval on the condition that the

courtroom be cleared when the issue would be

discussed. Ultimately, though, on the eve of sentencing,

Stokes withdrew his consent, refusing to allow his

counsel to mention his HIV status under any

circumstances.

Still, the defense team had other evidence ready.

Their investigation had not uncovered the full extent of

Stokes’s life story, but they knew the broad outlines. At

the start of sentencing, Stokes’s sister and aunt were

on the witness list and prepared to testify. The same

was true of the psychiatrist and neurologist, as well as

a social worker who was prepared to testify about

Stokes’s psychological profile. However, in another lastminute decision, trial counsel decided not to present

any personal evidence about Stokes.

In post-conviction testimony, Sims and Johnson

explained that they reached this decision based on

their impressions of the jury from the guilt phase,

knowing that the worst details of the crimes were yet

to come. They believed that “an Orangeburg County

jury” “back in ’97, ’98, ’99, when this was going on,”

App. 46

would not be receptive to evidence about “the

background of the individual and the kind of life that

they had had as a child” after hearing the prosecution’s

case in aggravation. J.A. 3469–73; J.A. 3423–25. Trial

counsel was also mindful of the jury’s racial

composition and “certain inner biases” that they

believed would follow. J.A. 3523–24. They believed

white jurors might react especially to Stokes, a Black

man, raping Snipes, a white woman. And for Black

jurors, especially “with the older Black females during

that time,” there was “this whole idea of

homosexuality.” Id.; J.A. 3520–21 (“AIDS,

homosexuality . . . during that time there was a

prejudice and a bias against it.”). On this basis, trial

counsel declined to present any background evidence

about Stokes and proceeded with their prison

adaptability approach. But because Stokes withdrew

consent to present evidence related to his HIV status,

this approach amounted to a single witness, James

Aiken, offered as an adaptability expert.

Aiken was a retired prison warden. He opined that

Stokes “does not demonstrate the behaviors of being a

predator” and does not demonstrate an “unusual” risk

of harm in prison. J.A. 1309–14. Aiken explained that

his opinion was based on the prison facility more than

Stokes as an individual. Indeed, he refused to meet

Stokes, or interview anyone who knew Stokes,

explaining that his analysis simulated how a prison

official would evaluate an inmate from their case file

alone. Yet the record Aiken reviewed was apparently

incomplete, and he often could not recall the details. He

emphasized the prison system’s punitive nature,

stating that if Stokes acted out, he would be punished,

App. 47

including by lethal force if necessary.2 In total, direct

examination of Aiken—the entirety of the defense’s

case at sentencing—spans around four pages of trial

transcript, while the State’s cross-examination spans

over 25. J.A. 1310–14; J.A. 1315–41. In closing

arguments, the State emphasized that Aiken effectively

agreed that Stokes may commit violence while in

prison: “So it’s sort of like an Alice in Wonderland

thing, where he’s using the punishment for infractions,

the ability to deal with that, to say that the man is

adaptable. It’s just the opposite. If it’s adapting to

prison, you don’t have to punish him.” J.A. 1365–66.

Meanwhile, the State presented robust aggravating

evidence, calling 12 witnesses. Martin and the state

pathologist added further details about the violence of

the Snipes murder, and Faith Lapp testified about

Stokes’s role in the Ferguson murder. The State also

presented evidence related to Stokes’s prior criminal

convictions. Early in his second prison stint, Stokes

assaulted an inmate with a box cutter, and the State

presented graphic pictures of the victim and the crime

scene. Smith, Stokes’s ex-wife, testified to the facts

underlying Stokes’s 1988 and 1991 assault convictions.

Aiken stated: “[Prison guards] have the ability, have the

technique, have the training and have the equipment to effect

lethal force if that person does not adequately follow certain rules

and regulations,” and “I have ordered inmates killed because they

did not follow rules and regulations and that inmate has been

killed.” J.A. 1321. He said the facility could “put[] [Stokes] in a

prison within a prison . . . [using] lethal force and taking his life if

required.” J.A. 1327.

App. 48

The evidence of Stokes’s 1991 assault of Smith is

especially relevant on appeal. Stokes’s lead trial

counsel, Sims, personally prosecuted that case against

Stokes. In so doing, he developed and presented

extensive testimony from Smith. Stokes had refused to

be present in the courtroom for the 1991 trial, so he

had not personally witnessed Sims’s arguments and

presentation. Sims never disclosed this issue to the

court.3 He later explained, “It was never asked, and I

did not—it just didn’t come up.” J.A. 1612. It is

undisputed that Sims told Stokes about his prior role;

he recalled, “[W]e did discuss with Mr. Stokes, my role,

who I was, and what my role had been in the previous

matter with him. . . . He never expressed any desire not

to have me as his attorney.” J.A. 1612; see J.A.

1640–56. Despite his prior prosecution of the crime now

being presented by the State as aggravating evidence

against his client, Sims elected to personally crossexamine Smith. Indeed, the second chair, Johnson,

never spoke a word on the record.

After the close of evidence, the jury deliberated for

around three hours before returning a death sentence.

Sims did point out that his name appeared on the 1991

indictment when it was entered into evidence, requesting that it

be redacted. J.A. 1426–27. However, in the brief exchange, he

states that his name was on every indictment the office issued at

that time; it does not appear that the request put the court on

notice that Sims had personally prosecuted the case against Stokes

and presented extensive testimony from Smith. See id.

App. 49

Stokes filed an application for postconviction relief

(“PCR”) in October 2001, claiming ineffective assistance

based on trial counsel’s mitigation presentation. The

court appointed PCR counsel—Keir Weyble and Robert

Lominack—who filed an amended application in May

2002, adding some additional claims. PCR counsel

deposed trial counsel, hired new experts, and hired a

mitigation investigator.

In August 2004, PCR counsel filed another amended

application, this time dropping the mitigation claim

while adding an Eighth Amendment intellectual

disability claim and a Sixth Amendment conflict-ofinterest claim. As a result, the State initiated a formal

competency assessment process that stretched on for

years. Stokes was eventually found competent, and

PCR counsel dropped the disability claim. They

proceeded on their remaining claims, including the

conflict-of-interest claim and other ineffective

assistance claims but not the mitigation theory.

The PCR court denied Stokes’s application in

October 2010. The parties litigated issues related to the

court’s order into 2013. Stokes petitioned for South

Carolina Supreme Court review in November 2014,

which was denied in February 2016. The United States

Supreme Court also denied Stokes’s petition for review,

and the State set an execution date.

Stokes then filed a petition for habeas corpus,

asserting two mitigation-based ineffective assistance

claims and the conflict-of-interest claim. Because the

ineffectiveness claims were not exhausted in state

App. 50

proceedings, a federal magistrate judge held an

evidentiary hearing to determine whether there was

good cause for the default under Martinez v. Ryan, 566

U.S. 1 (2012). After hearing testimony from both sets

of counsel, the magistrate recommended denying all

relief. Stokes filed objections to the magistrate’s report

and the district court overruled them. The court

adopted the report and concluded that PCR counsel

were not ineffective, meaning the unexhausted

mitigation-based claims were defaulted. Alternatively,

the court found that trial counsel’s alleged

ineffectiveness was not prejudicial. Finally, the court

found no actual conflict of interest, and, even if there

had been a conflict, that Stokes waived any objection.

Stokes filed a timely appeal. Under 28 U.S.C.

§ 2253, we may consider whether Stokes is entitled to

a certificate of appealability on his exhausted claims,

and under Martinez, 566 U.S. 1, we may determine

whether Stokes is entitled to appellate review of his

defaulted claims. See Owens v. Stirling, 967 F.3d 396,

423–26 (4th Cir. 2020).

II.

In general, a state prisoner must exhaust all state

court remedies before filing a 28 U.S.C. § 2254 petition.

Williams v. Stirling, 914 F.3d 302, 311 (4th Cir. 2019).

We then apply the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) standard of review,

under which a petitioner is entitled to relief only if the

state court adjudication of their claim was 1) “contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court”; or 2) “based on an unreasonable determination

App. 51

of the facts in light of the evidence presented.” Long v.

Hooks, 972 F.3d 442, 457–58 (4th Cir. 2020) (en banc)

(quoting 28 U.S.C. § 2254(d)).

Under this framework, a federal habeas court may

not hear a claim that was procedurally defaulted in

state proceedings unless the petitioner can show cause

for the default. Coleman v. Thompson, 501 U.S. 722,

750 (1991). Ordinarily, an attorney’s error is not valid

cause for such a default because “[t]here is no

constitutional right to an attorney in state postconviction proceedings.” See id. at 752–57. Ineffective

assistance claims complicate matters, however, because

state law sometimes dictates that collateral postconviction proceedings are a defendant’s first

opportunity to challenge their trial counsel’s

effectiveness. See id. at 755–57. That is the case here

under South Carolina law. Sigmon v. Stirling, 956 F.3d

183, 198 (4th Cir. 2020). In Martinez v. Ryan, the

Supreme Court adopted a narrow exception to address

this gap. See 566 U.S. at 9. The Court held

that—if state law restricts ineffective assistance claims

to initial-review collateral proceedings—the

ineffectiveness of a petitioner’s state PCR counsel may

provide cause in a federal habeas proceeding to excuse

the petitioner’s failure to challenge the ineffectiveness

of his trial counsel. See id. “[B]ecause a petitioner

raising a Martinez claim never presented the claim in

state court, a federal court considers it de novo, rather

than under AEDPA’s deferential standard of review.”

Gray v. Zook, 806 F.3d 783, 789 (4th Cir. 2015).

Stokes argues the district court erred in concluding

that his PCR counsel provided constitutionally effective

App. 52

representation. Therefore, Stokes argues, we may

reach his underlying claim against his trial counsel. He

asserts two distinct theories of trial counsel’s

ineffectiveness: that trial counsel unreasonably failed

to investigate and present personal mitigation

evidence, and trial counsel unreasonably presented

Aiken as their sole mitigation witness. Finally, Stokes

argues the state court’s conclusions as to the conflict-ofinterest claim were an unreasonable application of

clearly established federal law.

III.

We first address PCR counsel’s effectiveness to

determine whether Stokes has shown good cause for

defaulting his ineffectiveness claims. We conclude that

PCR counsel’s failure to develop and present a claim

based on trial counsel’s mitigation efforts amounts to

ineffective assistance. Proceeding to the underlying

claim, we conclude that trial counsel’s mitigation

investigation and choice not to present any personal

mitigation evidence was unreasonable and prejudicial,

establishing ineffectiveness. Because these conclusions

alone require resentencing, we do not reach Stokes’s

remaining claims.

The Martinez exception applies when, first, the

petitioner shows that “appointed counsel in the initialreview . . . was ineffective under the standards of

Strickland [ v. Washington, 466 U.S. 668, 687 (1984)].”

Martinez, 566 U.S. at 14. This means that PCR counsel

“performed deficiently[] under the first prong of

Strickland, . . . but not that said counsel’s deficient

App. 53

performance was prejudicial[] under the second prong

of Strickland.”4 Owens, 967 F.3d at 423. Second, the

petitioner must show that the underlying

ineffectiveness claim against trial counsel “is a

substantial one,” meaning that it “has some merit.”5

Martinez, 566 U.S. at 14.

To establish ineffectiveness under Strickland, a

petitioner must show counsel’s performance was

constitutionally deficient, meaning it fell below an

objective standard of reasonableness. 466 U.S. at 687.

Counsel’s performance is evaluated based on

Asking the petitioner to show that PCR counsel’s ineffectiveness

prejudiced the state proceedings would effectively require the

petitioner “to show that the defaulted claim is itself meritorious.”

Owens, 967 F.3d at 423 (explaining this “apparent incongruity”).

Circularly, the petitioner would have to “prevail on the merits of

[their] underlying claim merely to excuse the procedural default

and obtain consideration on the merits.” Id. (internal quotations

omitted). Therefore, we have joined our sister circuits in reading

Martinez’s use of the phrase “the standards of Strickland” to refer

only to performance, not prejudice. See id.

In imposing this requirement, the Supreme Court cited the

standard that governs certificates of appealability under 28 U.S.C.

§ 2253(c)(2). See Martinez, 566 U.S. at 14 (citing Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003)); Owens, 967 F.3d at 423. Under

that standard, “a petitioner must ‘sho[w] that reasonable jurists

could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

further.”’ Miller-El, 537 U.S. at 327 (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000) (internal quotations omitted)); Owens, 967

F.3d at 423.

App. 54

“prevailing professional norms” at the time of the

representation and in light of “all the circumstances.”

Id. at 688. Professional norms may be reflected in

American Bar Association (“ABA”) standards, or other

comparable guides, though such guides are not

dispositive of what constitutes reasonable

representation in any given case. Owens, 967 F.3d at

412 (“[N]o fixed set of rules may ‘take account of the

variety of circumstances faced by defense counsel.”’)

(quoting Strickland, 466 U.S. at 688–89). Our

assessment of counsel’s performance is “highly

deferential.” Id. “[A] fair assessment of attorney

performance requires that every effort be made to

eliminate the distorting effects of hindsight . . . and to

evaluate the conduct from counsel’s perspective at the

time.” Strickland, 466 U.S. at 689.

Capital defense counsel have a duty to investigate

and present substantial mitigating evidence, which

includes the “obligation to conduct a thorough

investigation of the defendant’s background.” See

Williams v. Taylor, 529 U.S. 362, 391–99 (2000). The

Supreme Court reaffirmed this duty several times

before and during PCR counsel’s representation of

Stokes. See, e.g., id.; Wiggins v. Smith, 539 U.S. 510

(2003); Rompilla v. Beard, 545 U.S. 374 (2005); Porter

v. McCollum, 558 U.S. 30 (2009) (per curiam); Sears v.

Upton, 561 U.S. 945 (2010). Counsel’s investigation

should cover the defendant’s “psychological history,”

which “could explain or lessen the client’s culpability

for the underlying offense.” See Williams v. Stirling,

914 F.3 d at 313. A reviewing court considers not only

the “quantum of evidence already known to counsel,”

but also whether that evidence “would lead a

App. 55

reasonable attorney to investigate further.” Id. (quoting

Wiggins, 539 U.S. at 527). If counsel declined to present

their findings, the inquiry focuses on “whether the

investigation supporting counsel’s decision . . . was

itself reasonable.” Wiggins, 539 U.S. at 523.

Here, the district court found that PCR counsel

performed reasonably because they investigated

Stokes’s background “to some extent” and then

“intentional[ly]” withdrew the mitigation claim. J.A.

3839. True, “[w]hen counsel focuses on some issues to

the exclusion of others, there is a strong presumption

that [they] did so for tactical reasons rather than

through sheer neglect.” Yarborough v. Gentry, 540 U.S.

1, 5 (2003).

But intentionality does not guarantee

reasonableness, and presumptions are rebuttable. The

adequacy of counsel’s investigation informs the

strength of the presumption of strategy. See Strickland,

466 U.S. at 690–91 (“[S]trategic choices made after less

than complete investigations are reasonable precisely

to the extent that reasonable professional judgments

support the limitations on investigation.”); Wiggins,

539 U.S. at 527–28 (“[C]ounsel were not in a position to

make a reasonable strategic choice . . . because the

investigation supporting their choice was

unreasonable.”). For example, in Williams v. Stirling,

counsel’s investigation uncovered evidence of the

defendant’s brain damage and his mother’s alcoholism,

but counsel “did not even consider whether [the

defendant] had [fetal alcohol syndrome]” and “whether

to pursue that evidence.” 914 F.3d at 314. That counsel

conducted some investigation in general was not

App. 56

enough; they were ineffective because they “failed to

conduct any investigation” into a potentially mitigating

condition “despite the red flags.” Id. at 315.

Similarly, in Wiggins, counsel learned of the

defendant’s “alcoholic, absentee mother” and his

“physical torment [and] sexual molestation” in foster

care, but they did not pursue either discovery further.

See id. at 523–25. “Counsel’s decision not to expand

their investigation” violated professional standards

because they did not attempt to discover “all

reasonably available mitigating evidence.” Id. (“[A]ny

reasonably competent attorney would have realized

that pursuing these leads was necessary to making an

informed choice among possible defenses, . . . .”). Thus,

Wiggins rejected the “presumption” of strategy: “[T]he

‘strategic decision’ the state courts and respondents all

invoke to justify counsel’s limited pursuit of mitigating

evidence resembles more a post hoc rationalization of

counsel’s conduct than an accurate description of their

deliberations.” Id.

The same is true here of PCR counsel. Though they

investigated “to some extent,” their investigation was

nevertheless inadequate because they ignored the

valuable leads they uncovered. They knew about

adversity in Stokes’s background from trial counsel’s

cursory investigation. They hired their own

investigator, whose additional interviews generated

rich leads about Stokes’s psychological, educational,

and familial history. At that point, an objectively

reasonable attorney would be prompted to investigate

further. See Williams v. Stirling, 914 F.3d at 313–15

(holding “there was necessarily no opportunity for

App. 57

counsel to make a strategic decision” after counsel

failed to “further explor[e]” significant “red flags”). Yet

PCR counsel conducted essentially no investigation

beyond the investigator’s interviews. They did not reinterview any of the witnesses themselves or seek out

corroborating documentary evidence. They did not

speak to or request files from the social worker

retained by trial counsel. While they interviewed the

neurologist, who had found indicators of brain damage,

they did not obtain his files or his testing results.

And, perhaps most consequentially, they did not

retain an expert capable of applying their investigator’s

findings. Because “psychological and social history” and

“emotional and mental health” are often of “vital

importance” to a mitigation defense, “the defense team

should include at least one person qualified to screen

for mental or psychological defects.” Id. That duty was

certainly implicated in this case when the investigator

found reports of Stokes’s childhood experiences of

physical and sexual abuse and neglect, domestic

violence, and substance abuse. Without consulting an

expert capable of analyzing these significant “red

flags,” counsel did not make “efforts to discover all

reasonably available mitigating evidence.” See Wiggins,

539 U.S. at 524 (quoting ABA Guideline § 11.4.1(C)

(1989)); see, e.g., Gray v. Branker, 529 F.3d 220, 229–32

(4th Cir. 2008) (holding counsel ineffective where they

“simply missed or ignored—and failed to act on—the

many signs that [the defendant] was mentally and

emotionally unstable” and failed to “explor[e] the need

for mental health testimony from an expert”); Hamilton

v. Ayers, 583 F.3d 1100, 1114–17 (9th Cir. 2009)

(finding ineffectiveness where indicators of mental

App. 58

illness meant that counsel “should have retained a

mental health expert and provided the expert with the

information needed to form an accurate profile of [the

defendant’s] mental health”).

PCR counsel themselves testified that this error

explained their unreasoned approach to the mitigation

issues. When asked whether they “consult[ed] an

expert to assess [the] rather wealth of mitigation

information,” Weyble responded, “No, we didn’t.” J.A.

2718. And when asked “Did you have a strategic reason

for failing to do that?” he said, “No.” Id. Similarly,

Lominack testified, “We did not hire a social worker.

And I do not think that I worked on a case before or

since . . . in which I did not hire a social worker.” J.A.

2998 (“I absolutely need someone who has the

knowledge and the expertise to take this evidence and

characterize it and put it in the right boxes.”); see also

J.A. 3377 (“[W]e stopped short of putting [the findings]

in front of people who could help us understand it and

generate that plausible explanation for behaviors.”). He

explained that this error was due to a lack of

experience, as opposed to strategy:

I look back at the cases I handled early in my

career with some degree of embarrassment. I

think the most specific example is ever working

on a case without a social worker. I can’t

imagine doing that at the end of my career. And

when I encountered that in other cases, it was

shocking because it’s not the standard of care

and wasn’t when I worked on this case.

J.A. 2621. And while it is true that a decision not to

investigate may itself be strategic—for example, if the

App. 59

findings would be more harmful than helpful, see

Wiggins, 539 U.S. at 525 (collecting cases)—there is no

evidence that informed PCR counsel’s decisions here.

Instead, PCR counsel cited non-strategic reasons for

their investigatory decisions and abandonment of the

claim. See, e.g. J.A. 2983–85 (explaining that the

failure to “personally interview[] any of those

[mitigation witnesses]” was either “lazy or not knowing

that should have been done or not knowing I should

have done it.”); J.A. 3018 (“We didn’t have a social

worker. . . . I don’t think we had enough information at

the time to decide that it was a claim that needed to be

thrown out, and I don’t think that’s what we did,

certainly not with any intentionality.”); J.A. 3031 (“We

weren’t thoughtful enough to have personally

interviewed any of the people that were relevant to the

claim that we dropped.”). Because PCR counsel’s

investigation fell short of professional standards, it

cannot support the presumption that their subsequent

abandonment of the claim was strategic. See Wiggins,

539 U.S. at 527–28, 536 (“[C]ounsel chose to abandon

their investigation at an unreasonable juncture,

making a fully informed decision with respect to

sentencing strategy impossible.”); Williams v. Stirling,

914 F.3d at 316–17 (“[T]he PCR court relied on the

factual assumption that trial counsel made a strategic

choice not to present” mitigation evidence, but “it was

impossible for trial counsel to have made a strategic

choice because there was no investigation into” that

issue).

Beyond the investigation’s shortcomings, PCR

counsel’s testimony directly rebuts the presumption

App. 60

that they dropped the mitigation claim strategically.

PCR counsel testified that they neglected the

mitigation theory after becoming preoccupied with

other claims. When asked if he recalled “why [he]

would have omitted that claim,” Weyble explained: “At

that same time, what was then called mental

retardation [and] is now called intellectual disability

claim arose, somewhat to our surprise, frankly. And I

think we became somewhat distracted by the shiny

object, if you will, and thought we—that we were really

on to something there.” J.A. 3259. Likewise, when

asked “why did [he] withdraw the mitigation claim,”

Lominack responded:

[W]e were so focused at the time on the

intellectual disability claim, . . . somewhat to the

detriment of . . . [a] mitigation claim. I don’t

recall having a specific reason why we would

abandon a general mitigation claim, especially

when at trial nothing was presented, which is

quite rare, actually, for there not to be any

mitigation presented about a client’s childhood.

I don’t recall in Mr. Stokes’s case, and frankly,

in any case, how I could have thought that that

was going to be a wise or reasonable choice, and

the only thought that I have now is that we were

so focused on the I.D. claim that we dropped it

and focused on that instead.

J.A. 2918. This testimony does not describe strategic

prioritization among multiple claims. Rather, counsel

testified that their prioritization of other claims was

uninformed and happenstance, the product of

distraction, inexperience, and carelessness. See, e.g.,

App. 61

J.A. 3018 (“I’d love to, in hindsight, say, yeah, we knew

what we were doing. We didn’t. We were focusing on

the [disability], adaptability, and IQ investigation.”);

J.A. 3031 (“I think one of the reasons I’m not

remembering a real strategic reason . . . is that, to be

blunt, I’m not sure that we were that thoughtful about

it.”); cf Wood v. Allen, 558 U.S. 290, 309 (2010)

(Stevens, J., dissenting) (distinguishing a decision that

is “the product of a deliberate choice between two

permissible alternatives” from one that is “the product

of inattention and neglect by attorneys preoccupied

with other concerns”).

Also, Stokes was ultimately found competent years

later, and PCR counsel dropped the disability claim

that had been hogging their attention. PCR counsel did

not testify to any strategic basis for declining to pursue

the mitigation theory at that point. See, e.g., J.A. 2993

(“[T]o me, it’s nonsensical to be so hyper-focused [on

intellectual disability], . . . especially when th[at claim]

went by the wayside after the [state] evaluation.”); J.A.

3262 (responding, after being asked why they did not

revive the mitigation claim after the intellectual

disability claim failed, “I don’t have a good answer to

that question”).6 Nothing suggests that counsel was

The district court largely ignored PCR counsel’s testimony. It

relied on one exchange from Weyble’s cross-examination, where

Weyble responded “yes” to the prosecutor’s statement that “there

had to be a reason that [he] withdrew [the claim]” because if he

“thought it was a strong claim,” he would have presented it. See

J.A. 3840–41. The court discredited the countervailing portions of

PCR counsel’s testimony as “fall[ing] on their sword for their

former client.” J.A. 3840. But nothing in the record justifies

selectively crediting this exchange while disregarding extensive

App. 62

strategically winnowing the claims, selecting only those

few deemed most meritorious: In their original petition,

PCR counsel raised six claims in addition to the

intellectual disability claim, three of which were so

weak that they later abandoned them and two of

which, alleging ineffective assistance of appellate

counsel, had obvious and dispositive weaknesses.7

Considering the dramatic lack of mitigation evidence

presented at trial despite Stokes’s background, PCR

contrary evidence from the same witnesses. An evidentiary ruling

may not rest solely on the court’s presumption of the witness’s

sympathies and intentions. For example, the dissent the district

court cited as its sole authority called out perceived “sword falling”

in a footnote, but it supported that charge by arguing the witness’s

testimony about “the particulars of his investigation” contradicted

his “self-denigrating” characterizations. Dugas v. Coplan, 428 F.3d

317, 346 n.39 (1st Cir. 2005) (Howard, J., dissenting). Here, the

district court pointed to no factual contradictions in Weyble and

Lominack’s testimony that undermined their generally negative

portrayal of their performance. They gave reasonable explanations

for why they made decisions they now believed to be improper,

such as a lack of experience or being distracted by new

developments. The district court did not identify, nor do we find,

anything in the record making PCR counsel any less credible than

trial counsel, whose testimony the district court relied on

extensively.

As the PCR court explained, the two claims alleging ineffective

assistance by appellate counsel were without merit because they

improperly faulted appellate counsel for failing to argue points

that had not been preserved at trial. Additionally, the PCR court

noted that one of the claims—that appellate counsel should have

argued that the trial court erred by failing to instruct on a

mitigating factor for the victim’s participation or consent in the

act—was “groundless” in any event, because “Snipes did not

consent to the violence that was about to strike her.” J.A. 1775–76

n.6.

App. 63

counsel’s failure to consider adding the mitigation

claim back into the petition is further evidence of

unreasonableness, not strategy. See McKee v. United

States, 167 F.3d 103, 106 (2d Cir. 1999) (“A petitioner

may rebut the suggestion that the challenged conduct

reflected merely a [tactical] choice . . . by showing that

counsel omitted significant and obvious issues while

pursuing issues that were clearly and significantly

weaker.”). Here, like in Wiggins, the purportedly

strategic decision “resembles more a post hoc

rationalization of counsel’s conduct than an accurate

description of their deliberations.” See 539 U.S. at

523–25.

Absent strategic justifications, PCR counsel’s

abandonment of the mitigation claim was objectively

unreasonable. PCR counsel knew that trial counsel’s

investigation was paltry. Further, trial counsel

presented no background mitigation evidence at all,

and the Supreme Court had recently deemed trial

counsel ineffective for even more robust presentations.

See, e.g., Williams v. Taylor, 529 U.S. at 368, 395

(finding mitigation presentation ineffective, despite

testimony from the defendant’s “mother, two neighbors,

and . . . a psychiatrist,” because counsel failed to relay

“[the defendant’s] nightmarish childhood”); Porter, 558

U.S. at 32, (finding ineffectiveness, despite testimony

about the defendant’s relationship with his son,

because counsel “failed to . . . present any evidence of

[the defendant’s] mental health . . ., his family

background, or his military service”).

PCR counsel’s own failure to pursue and present a

mitigation-based claim arising from trial counsel’s

App. 64

performance constitutes ineffective assistance. See, e.g.,

Blake v. Baker, 745 F.3d 977, 982–83 (9th Cir. 2014)

(finding PCR counsel ineffective where counsel did

nothing with witness statements describing “the

abhorrent conditions of [the petitioner’s] upbringing

and family history” and “failed to . . . retain experts” to

review the findings); Trevino v. Davis, 829 F.3d 328,

348–49 (5th Cir. 2016) (holding that PCR counsel were

ineffective in failing to pursue a mitigation claim where

trial counsel “presented only one mitigation witness

and no other evidence,” and “[t]he deficiency in that

investigation would have been evident to any

reasonably competent habeas attorney”).

Given the extraordinary facts of this case, Stokes’s

underlying ineffectiveness claim against his trial

counsel is “substantial” for Martinez purposes. See 566

U.S. at 14. The basis for questioning trial counsel’s

effectiveness is plain enough that PCR counsel’s failure

to adequately pursue it was objectively unreasonable.

It follows that the underlying claim has “some merit”—

meaning, at the very least, reasonable jurists could

debate its viability.8 See id.; Miller-El, 537 U.S. at 327.

The district court also found, alternatively, that Stokes could not

show prejudice from trial counsel’s alleged ineffectiveness, and

therefore “his underlying claim . . . is not substantial.” J.A. 3849

(citing Martinez, 566 U.S. at 14). Though inconsequential, this was

an improper application of Martinez’s substantiality requirement.

A claim that fails on the merits may very well still be “substantial”

for purposes of showing cause for a procedural default. See Owens,

967 F.3d at 423. The question is whether the claim has “some

merit,” meaning that reasonable jurists could at least debate its

App. 65

Therefore, under Martinez, Stokes has established

cause for procedurally defaulting his mitigation-based

ineffective assistance claim against trial counsel in

state proceedings. Accordingly, we proceed to the

merits.

To establish trial counsel’s ineffectiveness, the

petitioner must show that 1) their performance fell

below an objective standard of reasonableness, and

2) the deficient performance was prejudicial. See

Strickland, 466 U.S. at 687. To establish prejudice, the

petitioner must show “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” See id. at 694.

Trial counsel were constitutionally deficient for

much the same reasons as PCR counsel. Their

investigation was inadequate, and their decision to

withhold all personal mitigation evidence was

unreasonable.

Trial counsel had little-to-no experience preparing

a mitigation defense, yet they consulted with no

experienced attorneys or mitigation experts. Their

mitigation efforts, totaling around 45 hours, began six

months into their nine-month representation, though

the ABA Guidelines stated that sentencing

investigation should “begin immediately upon counsel’s

entry into the case and should be pursued

viability. See Martinez, 566 U.S. at 14 (citing Miller-El, 537 U.S.

at 327); Owens, 967 F.3d at 423.

App. 66

expeditiously.” ABA Guidelines § 11.4.1 (1989). They

hired an inexperienced mitigation investigator who was

still conducting interviews through the guilt phase of

the trial. They did not personally conduct any follow-up

interviews or otherwise develop the investigator’s

findings. They retained experts to testify at sentencing,

but those experts were apparently not consulted about

the personal mitigation evidence. In a capital murder

trial where mitigating the death penalty was the

central issue in the defense, such an investigation is

objectively unreasonable.9 See Wiggins, 539 U.S. at

523–25 (“Despite these well-defined norms, . . . counsel

abandoned their investigation of petitioner’s

background after having acquired only rudimentary

knowledge of his history from a narrow set of

sources.”); see also Earp v. Ornoski, 431 F.3d 1158,

1175–76 (9th Cir. 2005) (“Wiggins . . . establishes that

the presence of certain elements in a capital

defendant’s background, such as a family history of

Trial counsel did conduct some investigation. Their investigator

subpoenaed records and interviewed several friends and family

members, going beyond some investigations that have been

deemed unreasonable. See, e.g., Wiggins, 539 U.S. at 523–24

(counsel only obtained the presentence report and one set of social

services records); Porter, 558 U.S. at 39 (counsel obtained no

records and conducted no interviews of the defendant’s family).

Nevertheless, trial counsel unreasonably failed to pursue the

indications of extreme childhood trauma, neglect, and abuse. See

Gray v. Branker, 529 F.3d at 229–32 (finding unreasonableness,

even where counsel interviewed “friends and associates” and

retained experts, because they “failed to investigate for mental

health evidence”); Williams v. Stirling, 914 F.3d at 313–16

(faulting counsel for ignoring “red flags,” though their

investigation otherwise “did bear the hallmarks of effective

assistance”).

App. 67

alcoholism, abuse, and emotional problems, triggers a

duty to conduct further inquiry before choosing to cease

investigating.”).

Trial counsel’s subsequent decision to withhold the

personal mitigation evidence they did have was also

objectively unreasonable. At the outset of sentencing,

members of Stokes’s family and a social worker were

prepared to testify. A neurologist and psychiatrist were

prepared to testify about Stokes’s HIV status, but

presumably could have offered other personal

testimony about Stokes instead. Yet counsel abandoned

this evidence based on their impressions of the jury,

deciding the jurors—the Black jurors in particular—

would react negatively to evidence of Stokes’s life story

after hearing the prosecution’s aggravating case. As

Johnson put it:

[H]ow do you go to a jury and say, look, we want

you to look at the fact that he had a poor

upbringing, particularly African-American,

which a lot of us had struggles coming up, how

do you say, well, just because he had a poor

upbringing, you need to overlook the fact that he

raped this woman, you need to overlook the fact

that he cut her vagina out, you need to overlook

the fact that he cut her nipples off, you need to

overlook the fact that he killed somebody else.

J.A. 3424–25.

This concern reflects a misunderstanding of the

duty to mitigate. Trial counsel were not obliged to ask

the jury to excuse Stokes’s actions. Instead, their duty

was to mitigate Stokes’s “moral culpability.” See, e.g.,

App. 68

Williams v. Taylor, 529 U.S. at 398 (explaining that

“the graphic description of [the defendant’s] childhood,

filled with abuse and privation, . . . might well have

influenced the jury’s appraisal of his moral culpability”

by showing that his violence was “compulsive” as

opposed to “cold-blooded premeditation”); Caro v.

Woodford, 280 F.3d 1247, 1258 (9th Cir. 2002) (“By

explaining that [the defendant’s] behavior was

physically compelled, . . . or even due to a lack of

emotional control, his moral culpability would have

been reduced.”). Counsel can carry out this duty

without diminishing the defendant’s responsibility for

their actions or the seriousness of their crimes. See

Eddings v. Oklahoma, 455 U.S. 104, 115–16 (1982)

(qualifying, after explaining why youth mitigates moral

culpability, that “[a]ll of this does not suggest an

absence of responsibility for the crime of murder,

deliberately committed in this case”). As one mitigation

specialist has put it:

Mitigation is not a defense to prosecution. It is

not an excuse for the crime. It is not a reason the

client should “get away with it.” Instead,

mitigation is a means of introducing evidence of

a disability or condition which inspires

compassion, but which offers neither

justification nor excuse for the capital crime. . . .

It explains the influences that converged in the

years, days, hours, minutes, and seconds leading

up to the capital crime, and how information

was processed in a damaged brain. It is a basis

for compassion—not an excuse.

App. 69

Russell Stetler, The Mystery of Mitigation, 11 U. Pa. J.

L. & Soc. Change 237, 261 (2008). Thus, trial counsel

did not have to ask the jury to “overlook” the graphic

details of the prosecution’s case. Instead, their personal

evidence could have provided humanizing context,

allowing the jury to reach a more sympathetic

understanding of the individual behind the aggravating

evidence. See Allen v. Woodford, 395 F.3d 979, 1000

(9th Cir. 2005) (“[Using] mitigation evidence to

complete, deepen, or contextualize the picture of the

defendant presented by the prosecution can be crucial

to persuading jurors that the life of a capital defendant

is worth saving.”).

But because trial counsel had no experience or

formal training in mitigation, conducted a shallow

investigation, and failed to consult with experts, they

underestimated the value of their evidence. Stokes’s

life story contains far more than a merely “difficult

upbringing” and “struggles coming up”; the evidence

shows profound and chronic trauma that was about as

extreme as any child can experience. Such evidence is

prototypical for a personal mitigation narrative.

Wiggins, 539 U.S. at 535 (referring to “severe privation

and abuse in the first six years of [the defendant’s] life”

as “the kind of troubled history we have declared

relevant to assessing a defendant’s moral culpability”);

Hooks v. Workman, 689 F.3d 1148, 1203–04 (10th Cir.

2012) (“[E]ven the most minimal investigation would

have uncovered a life story worth telling, . . . [ which is]

exactly the sort of evidence that garners the most

sympathy from jurors.”). If trial counsel believed the

jury would not have responded well to a presentation

that minimized Stokes’s conduct, their duty was to find

App. 70

a way to convey this highly significant evidence

without doing so.

That is especially true when considered against

their alternative decision: to offer almost no mitigation

presentation at all. Having declined to present their

personal mitigation evidence, trial counsel put forward

one witness, the former prison warden, who never met

Stokes and was repeatedly unfamiliar with the details

of Stokes’s records. Trial counsel’s direct examination

produced about four pages of trial transcript, the

entirety of their sentencing presentation. Cf. Wiggins,

539 U.S. at 526–27 (describing counsel’s presentation,

which failed to provide details of the defendant’s

history, but did provide one expert’s testimony about

prison adaptability, a “halfhearted mitigation case”

taking a “shotgun approach”). Meanwhile, as

anticipated, the government put forward 12 witnesses

detailing Stokes’s violence in the Snipes murder and in

previous incidents. Thus, the only evidence the jury

heard about Stokes detailed his crimes and violence,

distorting the jury’s perception of “the uniqueness of

the individual” facing execution. See Lockett v. Ohio,

438 U.S. 586, 604–05 (1978); see, e.g., Ferrell v. Hall,

640 F.3d 1199, 1234, 1236 (11th Cir. 2011) (concluding

that, because “the jury heard absolutely nothing about

the substantial mitigating evidence,” including

childhood abuse, “[t]he jury labored under a profoundly

misleading picture of [the defendant’s] moral

culpability”).

The basis for trial counsel’s decision—that a South

Carolina jury in the 1990s, and particularly Black

people, would not be open to a personal mitigation

App. 71

narrative—was objectively unreasonable. In 1989, ten

years before Stokes’s trial, the Supreme Court referred

to “the belief, long held by this society, that defendants

who commit criminal acts that are attributable to a

disadvantaged background, or to emotional and mental

problems, may be less culpable than defendants who

have no such excuse.” Penry v. Lynaugh, 492 U.S. 302,

319 (1989) (emphasis added) (quoting California v.

Brown, 479 U.S. 538, 545 (1987) (O’Connor, J.,

concurring)), overruled on other grounds by Atkins v.

Virginia, 536 U.S. 304 (2002). Even earlier, in 1976,

the Court explained: “A process that accords no

significance to relevant facets of the character and

record of the individual offender . . . excludes from

consideration in fixing the ultimate punishment of

death the possibility of compassionate or mitigating

factors stemming from the diverse frailties of

humankind.” Woodson v. North Carolina, 428 U.S. 280,

304 (1976). There is no reason to believe that South

Carolinians in 1999—no matter their race—would have

been indifferent to the “frailties of humankind” and

these bedrock principles of mercy and morality.

Therefore, even when giving appropriate deference

to trial counsel’s strategic judgment, trial counsel’s

failure to investigate and present personal mitigation

evidence was objectively unreasonable under

professional standards at the time of the

representation.

As to prejudice, “the question is whether there is a

reasonable probability that, absent the errors, the

sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not

App. 72

warrant death.” Strickland, 466 U.S. at 694–95. “A

reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. Because the

sentencer in this case was a unanimous jury, prejudice

“requires only ‘a reasonable probability that at least

one juror would have struck a different balance”’ when

appraising Stokes’s moral culpability and deciding on

death. See Andrus v. Texas, 140 S. Ct. 1875, 1886

(2020) (quoting Wiggins, 539 U.S. at 537). To determine

whether the petitioner has made that showing, “the

reviewing court must consider ‘the totality of the

available mitigation evidence,”’ both at trial and from

postconviction proceedings, “and ‘reweig[h] it against

the evidence in aggravation.”’ Id. (quoting Williams v.

Taylor, 529 U.S. at 397–98).

The district court summarized the evidence of

Stokes’s life story in a sentence, referring to the death

of his parents, his “abusive[] and neglectful” childhood,

and “that he struggled in school with no intervention.”

J.A. 3843. It also considered the report of Stokes’s new

expert, who concluded that these “aspects of [Stokes’s]

background” likely impacted his adult behavior. J.A.

3843–44. The court then summarized the State’s case

in aggravation and concluded that Stokes failed to

establish prejudice because the aggravating evidence

“was overwhelming.” J.A. 3844–48. The court especially

emphasized the “horrific circumstances” of the Snipes

and Ferguson murders, noting that an additional

murder is recognized as “the most powerful imaginable

aggravating evidence.”10 Id. (citing Wong v. Belmontes,

In emphasizing these aspects of the Snipes murder, and the

commission of the Ferguson murder, the district court considered

App. 73

558 U.S. 1, 27–28 (2009); Morva v. Zook, 821 F.3d 517,

532 (4th Cir. 2016)). Thus, the court concluded that “all

the mitigating evidence does not outweigh all the

aggravating evidence presented at trial,” and so Stokes

did not show “a reasonable probability that at least one

juror would have voted against the death penalty had

it heard the additional mitigating evidence in

question.” J.A. 3848–49.

We disagree. While there is no doubt that the

State’s aggravation case was extensive, the analysis is

not as simple as comparing two piles of evidence and

asking which is greater. The addition of just some

meaningful mitigating evidence could be enough to

sway one juror against death, even in the face of

plentiful aggravating evidence. See, e.g., Williams v.

Taylor, 529 U.S. at 398 (“Mitigating evidence . . . may

alter the jury’s selection of penalty, even if it does not

undermine or rebut the prosecution’s death-eligibility

case.”). And when a jury heard virtually no mitigation

evidence at trial, and nothing about the defendant as

evidence going to the aggravating factors that the jury did not find.

The jury found the evidence established: 1) criminal sexual

conduct; 2) kidnapping; 3) murder for the purpose of receiving

money; and 4) that the defendant caused another person to

participate. But the jury did not find that the State established:

1) physical torture; or 2) that two or more persons were murdered

by the defendant. While there were surely other “horrific” elements

of the Snipes murder that the court may have been referring to,

the court should not have given weight to Stokes’s alleged torture

of Snipes or his role in the Ferguson murder. Cf. Porter v.

McCollum, 558 U.S. 30, 41–42 (2009) (explaining that “the weight

of evidence in aggravation” was “not as substantial as the

sentencing judge thought” where one of two aggravating factors

was reversed on appeal).

App. 74

an individual, the unheard personal evidence is

especially impactful on the prejudice calculus. See

Porter, 558 U.S. at 41–44.

In Porter, the jury “heard almost nothing that would

humanize [the defendant] or allow them to accurately

gauge his moral culpability.” 558 U.S. at 41–44. The

jury could have heard about the defendant’s PTSD from

military service, a “childhood history of physical

abuse,” and a “brain abnormality” that caused learning

disabilities. Id. “Instead, they heard absolutely none of

that evidence, evidence which ‘might well have

influenced the jury’s appraisal of [the defendant’s]

moral culpability.”’ Id. (quoting Williams v. Taylor, 529

U.S. at 398). Some negative facts in the mitigation

evidence were not enough to undermine its impact

because the negative aspects were still “consistent with

th[e] theory of mitigation and d[id] not impeach or

diminish the evidence.” Id. The Court found the

prejudice requirement satisfied, especially because

“[w]e do not require a defendant to show ‘that counsel’s

deficient conduct more likely than not altered the

outcome, . . . but rather that he establish ‘a probability

sufficient to undermine confidence in [that] outcome.’”

Id. at 44 (quoting Strickland, 466 U.S. at 693–94).

The same reasoning applies here. The unheard

mitigation evidence would have shown Stokes

experienced an “extraordinarily high” degree of

childhood adversity, likely surpassing 99.9% of the

population. J.A. 2181–82; see generally J.A. 2173–2201.

And, through expert evidence, the defense could have

explained the likely consequences of such a childhood,

connecting “chronic trauma” to brain development and

App. 75

adult behavior. Instead, by presenting no personal

evidence at all, counsel failed to “explain to the jury

why [Stokes] may have acted as he did . . . connect[ing]

the dots between, on the one hand, [his] mental

problems, life circumstances, and personal history and,

on the other, his commission of the crime in question.”

See Hooks v. Workman, 689 F.3d at 1204. As a result,

“jurors faced with an especially brutal crime were left

with almost nothing to weigh in the balance.” See id.

Thus, the prejudice analysis turns on the likely

influence of dramatic mitigation evidence on a jury that

heard dramatically little about the defendant. In that

context, the weight of the unpresented mitigation

evidence is significantly increased, enough to outweigh

even the upsetting and extensive aggravating evidence.

See, e.g., Williams v. Taylor, 539 U.S. at 537 (finding

prejudice in failure to present personal evidence even

where the petitioner “had savagely beaten an elderly

woman, stolen two cars, set fire to a home, stabbed a

man during a robbery, and confessed to choking two

inmates and breaking a fellow prisoner’s jaw”); see also

Smith v. Stewart, 189 F.3d 1004, 1013–14 (9th Cir.

1999) (explaining that “[t]he horrific nature of the

crimes . . . does not cause us to find an absence of

prejudice,” especially “where the presentation of

mitigating evidence was wholly inadequate”). If the

jury could have placed Stokes’s “excruciating life

history on the mitigating side of the scale,” then “there

is a reasonable probability that at least one juror would

have struck a different balance.” See Wiggins, 539 U.S.

at 537; Porter, 558 U.S. at 42. Simply put, “there exists

too much mitigating evidence that was not presented to

now be ignored.” Porter, 558 U.S. at 44 (quoting Porter

App. 76

v. Florida, 788 So.2d 917, 937 (Fla. 2001) (Anstead, J.,

concurring in part and dissenting in part)).

The district court failed to consider that trial

counsel’s decisions meant they presented almost no

mitigating evidence. It cited cases where additional

personal evidence was insufficient to show prejudice

after a jury heard a significant quantity of such

evidence at trial. See Wong, 558 U.S. at 20–21 (noting

that “the mitigating evidence [the defendant] did

present” at sentencing “was substantial,” including

nine witnesses who “highlighted [his] terrible

childhood”); Morva, 821 F.3d at 522–23 (listing

mitigation efforts including two court-appointed mental

health experts, a specialist investigator, and thirteen

witnesses). The hypothetical impact of Stokes’s life

story and expert evidence on a jury that heard nothing

about Stokes at all is quite distinct from the impact of

a few more witnesses on a jury that heard an alreadyrobust mitigation presentation. Cf. Wong, 558 U.S. at

22 (finding that the proposed evidence “was merely

cumulative of the humanizing evidence [the defendant]

actually presented” and “would have offered an

insignificant benefit”); Morva, 821 F.3d at 522–23, 529

(stating that counsel interviewed “many” family

members, and several testified or submitted affidavits,

but the defendant “complains that counsel could have

interviewed other[s]”).

In sum, trial counsel’s unreasonable mitigation

efforts prejudiced Stokes. Given Stokes’s immediate

confession, his defense turned almost exclusively on

mitigation from its very outset. Yet trial counsel spent

too little time on their investigation and failed to

App. 77

appreciate their findings. Then, despite the wealth of

reasonably available, highly compelling mitigation

evidence, counsel told the jury effectively nothing about

Stokes as an individual. Had the jury heard the

unpresented evidence, the probability that at least one

juror would have voted against death is great enough

to undermine our confidence in the outcome. See Porter,

558 U.S. at 44; Andrus, 140 S. Ct. at 1886.

We conclude that Stokes has satisfied both the

deficient performance and prejudice prongs of

Strickland on his mitigation-based claim, establishing

that he received ineffective assistance of counsel at

sentencing. Because this conclusion alone requires

resentencing, we do not reach the remaining claims.

IV.

For the foregoing reasons, we reverse the judgment

of the district court and remand with instructions that

the district court issue the writ of habeas corpus unless

the State of South Carolina grants Stokes a new

sentencing hearing within a reasonable time.

REVERSED AND REMANDED

QUATTLEBAUM, Circuit Judge, dissenting:

When considering the important skills of a trial

attorney, those that might first come to mind are the

skills we see in action—opening statements, examining

witnesses and closing arguments. But as important as

those skills are, just as important is a skill we don’t

see—strategic decision-making. A lawyer must make

many decisions before and during the course of a trial.

And what often makes those decisions so difficult is

App. 78

that many cut both ways. The decision to advance an

argument, introduce certain evidence, call a witness,

cross-examine a witness aggressively or lightly and so

many other decisions can be—and often are—doubleedged swords. There are pros and cons each way.

Evaluating these decisions, a lawyer must consider

a litany of questions. How much benefit can be gained?

How much harm can be caused? Can the harm be

mitigated? Is the benefit that can be gained worth the

harm that can result? And so on.

Oftentimes, the answers to these questions are not

obvious. In fact, answering them is more a matter of

art than science because intangible factors come into

play. A lawyer must rely on experience, intuition and

even gut instinct.

Making things even harder, trials are fluid. What

might have made sense before trial may become a bad

idea based on events that transpire during trial. To

address that fluidity, a lawyer must constantly

consider how the trial is progressing, and how the

judge and jury are responding to the evidence and

arguments.

In these difficult decisions, different lawyers can,

and do, come to different conclusions. For some issues,

you could ask ten lawyers and often get ten different

decisions. Nevertheless, decisions must be made.

In this appeal, we review the decisions made by

lawyers in the weightiest of circumstances—the

defense of a capital defendant. Although the decisions

were quintessentially strategic and informed by a

thorough investigation, the majority determines that

App. 79

they amounted to ineffective assistance of counsel. I

disagree. These decisions, according to our precedent,

merit our highest deference. In my view, the record

does not come close to overcoming that required

deference. Accordingly, I dissent.

Over twenty years ago, Thomas Sims and Virgin

Johnson’s client, Sammie Stokes, was charged with the

gruesome murder of Connie Snipes. The State sought

the death penalty. The evidence against Stokes was

overwhelming and horrific. Stokes even confessed to

the murder. Because Sims and Johnson suspected

Stokes would be convicted, they developed a strategy

they felt would be most effective during the probable

sentencing phase of the case. They wanted to

emphasize Stokes’ remorse and highlight the conduct

and motivation of Norris Martin, who participated in

the murder with Stokes, with the hope that the jury

would view him as “the bad guy.” J.A. 1543.

Trial counsel also planned to focus on the fact that

Stokes had AIDS. Counsel planned for experts,

including a forensic psychiatrist, to talk about Stokes’

mental health and related medical issues. Sims and

Johnson felt the best way to move the jury to spare

Stokes’ life would be to point out how AIDS would

debilitate Stokes and given the knowledge about that

disease at the time, that AIDS effectively was its own

death sentence.

But trial counsel’s preparation did not stop there.

Sims and Johnson also investigated mitigating

evidence. They hired a mitigation investigator and

App. 80

interviewed witnesses including Stokes’ family and

friends. From that work, trial counsel learned that

Stokes’ childhood included significant trauma and

abuse which might be useful in providing some context

for Stokes’ conduct.

For example, the trial defense team’s interview with

Stokes’ sister revealed that Stokes’ parents, who did

not live together, both drank excessively. After their

father died, Stokes’ mother remarried. The stepfather

also drank a lot but was violent as well. Stokes’ sister

reported that he abused their mother. Stokes’ sister

told the team that she and Stokes had to fight their

stepfather to keep him from beating their mother.

Other family members revealed similar information

to the trial team. A cousin told the trial team Stokes’

mother was “a drinker, fighter and was wild” and that

her children “grew to be the same.” J.A. 2535. Another

relative told the team that Stokes’ mother and

stepfather “liked to drink, party, go to clubs and often

took [Stokes and his sister].” J.A. 2536. She added that

Stokes’ mother and stepfather both assaulted each

other.

In addition to uncovering this evidence through

their mitigation investigator, trial counsel assembled

experts to testify about the mitigation evidence if they

decided to use it. They engaged and worked with a

forensic psychiatrist, a jury consultant and an expert in

social work.

But Sims and Johnson’s investigation revealed risks

of utilizing this mitigation evidence. The witnesses who

would, if asked, be able to provide mitigating evidence,

App. 81

also had information that was damaging to their

strategy of portraying Martin as the main culprit.

Stokes’ sister, during the trial team’s interview of her,

described Stokes as “very moody” and that his

personality would “flip.” J.A. 2529. She also talked

about Stokes’ relationship with Martin. She said

Stokes frequently made Martin, who had been his

friend since childhood, “hustle for him.” J.A. 2529. And

Stokes was violent toward Martin if he was not

successful in those activities. More specifically, Stokes

“beat [Martin] up when he did not get his money on

time.” J.A. 2529. Stokes’ sister told the trial team that

Martin was “very afraid of [Stokes].” J.A. 2529.

An ex-girlfriend provided additional information

that Sims and Johnson had to consider. She told the

team that they dated when she was fifteen but broke

up after she became pregnant with Stokes’ child. She

said Stokes never supported the child in any way. She

also revealed that it was rumored that Stokes was a

bisexual and sexually abused Martin in the past.

With knowledge of the background of Stokes’

relationship with Martin from these interviews and of

the fact that there was even “some question as to

whether or not there was even a homosexual

relationship between [Stokes and Martin],” trial

counsel “didn’t want it to come out that [Stokes] had,

you know, used him and had him doing everything

. . . .” J.A. 1537.

Trial counsel’s predictions about guilt proved to be

correct. An Orangeburg County, South Carolina jury

found Stokes guilty of murder, kidnapping, first degree

criminal sexual conduct and criminal conspiracy

App. 82

arising from the murder of Connie Snipes. J.A. 990–91.

That set the stage for the penalty phase where the jury

would determine whether Stokes would be sentenced to

death or life in prison. J.A. 1013. South Carolina

sought to prove several statutory aggravating

circumstances in seeking the death penalty. With

Stokes’ life on the line, Sims and Johnson had to decide

whether any statutory mitigating circumstances or

other evidence might help save his life. J.A. 997–98.

Complicating their decision-making, about five days

before trial, Stokes developed cold feet about

introducing information about his AIDS prognosis to

the jury. Even so, he decided that theme could only be

pursued if certain people, particularly family and

friends, were removed from the courtroom. J.A. 2544.

And that was the plan—to clear the courtroom prior to

offering the evidence. J.A. 1548–49, 3480.

Then Stokes changed his mind. As the sentencing

phase began, “[j]ust as [they] got ready to start

presenting that evidence, [Stokes] then said, no, I don’t

want it coming in,” forcing the court into a recess as the

defense team tried to persuade Stokes to allow the

prepared defense to go forward. J.A. 1546. At the

eleventh hour, Stokes decided he did not want his

children and family, and the jury for that matter, to

hear he had AIDS. While that was his choice, it

substantially gutted his mitigation defense.

Based on this, Sims and Johnson had to adapt and

decide what to do instead. Presenting mitigating

evidence about Stokes’ traumatic and abuse-ridden

childhood was an option. The benefit of that mitigating

evidence was that it might give jurors some

App. 83

understanding of how and why Stokes came to the

point of committing the horrific events the jury had

just learned about. If jurors understood how such an

upbringing could cause real psychological harm and

lead to a propensity toward violence, they might be

willing to spare Stokes’ life. Sims and Johnson had

gathered this evidence. The witnesses were available.

But they also knew that many of the witnesses who

would testify about Stokes’ childhood and background

in a manner that provided some explanation or context

for Stokes’ criminal conduct—like Stokes’ sister and

aunt—also knew about Stokes’ temperament and his

relationship with Martin. They knew that along with

the potential mitigating evidence, there was damaging

information that would likely come out on crossexamination, information that would be harmful to

Stokes’ defense.

And they also felt the mitigating evidence might

not, in this context, be helpful at all. They felt the jury

might perceive the evidence not as mitigating evidence,

but as an attempt to avoid responsibility for the crime.

So, after considering the issue, they decided not to

introduce it. Sims described how they came to that

decision:

Q. So did -- ultimately, did Sara Stokes, Ruth

Davis, or Dr. Rodgers testify on Mr. Stokes’

behalf at sentencing?

A. No, they didn’t.

Q. And why was that?

A. We made a strategic decision -- after having

the opportunity to get together, we made a

strategic decision that certain -- that mitigation

App. 84

kind of evidence that was the ongoing way that

things were done at that time was not going to

work in Orangeburg County.

Having had the opportunity to look at the

jury, having had the opportunity to see how they

reacted to a number of things that were going on

in the courtroom, we made a decision that we

were going to take another avenue in order to

try to save his life.

J.A. 3469. He continued:

Q. Okay. At the -- what made you decide that

the jury would not be receptive to that

testimony?

A. In trial work, and having been in trial work

for a period of time up to that time -- this is

going on my 40th year of being a trial lawyer -you get the opportunity to look at the jury, you

see their reaction to what is happening in the

courtroom, you look at those who are leaning

forward at certain times to certain testimony,

you look at those who are leaning back and

closing their arms at certain testimony, you try

to look to see if anybody’s shaking their head

with where you want to go, and you try to -- and

during the trial you look at things that are

developing.

I always say that a trial has a life of its own.

You may start out with a theory and a process

that you want to go through, but in the middle of

the trial, as it begins to progress, you may have

to change the way that you are actually going to

go, and that’s what happened in this case.

App. 85

And take into consideration also you’re in

Orangeburg County and there were things that,

back in ‘97, ‘98, ‘99 when this was going on, that

we have to take into consideration too. When

you -- the way I looked at it, and I believe Mr.

Johnson will verify this also, when we looked at

it and we talked about the kind of crime that

had been committed, we talked about some of

the things that had happened to the young lady

who was killed, how her body was mutilated,

and those kind of things in Orangeburg County,

we have to take that into consideration too.

Q. Can you help me understand what about the

jury made you think that the type of evidence

that you had intended to introduce originally

through Sara Stokes, Ruth Davis, Dr. Rodgers,

would not be persuasive to them?

A. I would have looked at that jury, I would have

looked at the composition of the jury, probably

during the trial would have gone home and

reviewed the jurors’ background information

again to determine the best way that you could

probably get that juror on your side. I would

have -- would have -- there were AfricanAmericans and there were white people on the

jury too.

Looking at that, taking it into consideration

as a whole and how the trial had been going and

what was being brought out, the question at that

point is whether or not putting out the

background of the individual and the kind of life

that they had had as a child would be effective

App. 86

in light of the facts of the case and the people

that you had on the jury.

J.A. 3470–3472.

Johnson also testified about their decision:

Q. So in terms of deciding how to or whether to

investigate [Stokes’] childhood and background,

did the aggravated nature of the case affect how

you approached that?

A. It didn’t affect how I approached it, but it

sure enough affected how we presented it.

Q. In what way?

A. When you had to present it -- in your

presentation at trial, you had to try to find a

way to present it, if you had to present it, in the

preparation. If you had to present it, you had to

try to find a way to present it where it didn’t

seem so offensive, yet you can’t play it down. It’s

just a fine balance, because how do you -- how do

you tell somebody, how do you go to a jury and

say, look, we want you to look at the fact that he

had a poor upbringing, particularly AfricanAmerican, which a lot of us had struggles

coming up, how do you say, well, just because he

had a poor upbringing, you need to overlook the

fact that he raped this woman, you need to

overlook the fact that he cut her vagina out, you

need to overlook the fact that he cut her nipples

off, you need to overlook the fact that he killed

somebody else.

And my job was to defend [Stokes]. So what

I did was I looked at every aspect of the case. If

I was trying that case now, it would be a heck of

App. 87

a lot different because the tolerance we have

now. But I would change nothing because they

just wasn’t tolerant of that.

J.A. 3524– 3525.

This testimony reveals that Sims and Johnson, in

the exercise of their reasonable professional judgment,

undertook a contemplative thought process about the

pros and cons of using mitigation evidence of Stokes’

childhood and upbringing. After doing so, they felt the

circumstances of Stokes’ crime were just too horrific for

such evidence to be helpful. They decided not to

introduce it.

They did, however, offer a different kind of

mitigating evidence. They presented James Aiken, a

prison adaptability expert, to testify about Stokes’

ability to adapt to prison. Aiken’s testimony was

intended to dovetail with evidence concerning Stokes’

AIDS diagnosis. Of course, Stokes’ refusal to allow the

AIDS evidence to be used made this strategy more

challenging. But even without the AIDS evidence,

Aiken emphasized that Stokes could be managed in a

maximum-security environment for the rest of his life.

Trial counsel used this testimony to argue that Stokes’

life should be spared.

The jury was not convinced. They deliberated for 3

hours and 15 minutes before returning a death

sentence finding four of the six aggravating factors

alleged by the State to make Stokes eligible for the

death sentence and recommended the death penalty.

App. 88

II.

Now, over two decades later, the majority grades

trial counsel’s strategic decisions about mitigation

evidence as ineffective. In my view, that conclusion

ignores the reality of trial work and conflicts with

Supreme Court precedent.

Importantly, Stokes did not press the mitigation

strategy in his state PCR efforts. Since he did not, he

must satisfy Martinez v. Ryan, 566 U.S. 1 (2012), which

“provides a narrow exception to the general rule . . .

that errors committed by state habeas counsel do not

provide cause to excuse a procedural default.” Gray v.

Zook, 806 F.3d 783, 788 (4th Cir. 2015). Martinez

permits a petitioner to excuse certain procedurally

defaulted ineffective-assistance-of-trial counsel claims.

Id. at 789. But the petitioner must establish cause to

excuse the procedural bar before the federal court will

consider the merits of that defaulted claim. This

standard reflects the “well-established principle that

[f]ederal 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.” Owens v. Stirling, 961 F.3d 396,

422 (4th Cir. 2020) (alteration in original) (internal

quotation marks omitted).

Thus, Stokes must show that the underlying

ineffective assistance of trial counsel claim is

substantial, and that PCR counsel was deficient in not

pursing that claim. Id. at 423. And if Stokes crosses

those two hurdles, he must then show trial counsel was

App. 89

deficient and that the deficiency prejudiced his defense.

While ordinarily I would address these issues in that

order, here I will address them chronologically because

this really is somewhat of a chicken or the egg

dilemma. PCR counsel could not have been ineffective

unless trial counsel was as well. In my view, neither

was defective.

I begin with a discussion of Stokes’ trial counsel

because I do not believe that Stokes has shown a

substantial underlying ineffective of assistance of

counsel claim. Where a state prisoner claims ineffective

assistance of counsel as the basis of habeas relief, the

Court must also review the claim through the highly

deferential lens of Strickland v. Washington, 466 U.S.

668 (1984). First, a petitioner must show counsel’s

performance was deficient and fell below an objective

standard of reasonableness. Id. at 687–88. Second, the

petitioner must show the deficient performance

prejudiced the defense, meaning “there is a reasonable

probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.”

Id. at 694. But in considering these two factors, the bar

is higher for strategic decisions. Much higher. Counsel

is “strongly presumed to have rendered adequate

assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Id. at

690. “[S]trategic choices made after thorough

investigation of law and facts relevant to plausible

options are virtually unchallengeable.” Id.

Stokes’ complaints involve classic strategic decisions

that the Supreme Court has determined to be “virtually

unchallengeable.” Sims and Johnson—seasoned trial

App. 90

lawyers with experience trying capital cases in

Orangeburg County—felt the personal mitigation

evidence cut both ways. Despite the potential benefits

of that evidence to humanize Stokes, there were risks.

Their strategy throughout the trial was to admit guilt,

portray the other participants in the murder as more

culpable than Stokes and ask for mercy. And they felt

that jurors might view mitigating evidence as to

Stokes’ background as a poor excuse for him

committing a gruesome murder. They questioned

whether those jurors, from a poor county in South

Carolina, many of whom may have had tough

upbringings and life experiences, might take offense at

the mitigating evidence. In other words, “the question

at that point [was] whether or not putting out the

background of the individual and the kind of life that

they had had as a child would be effective in light of

the facts of the case and the people that you had on the

jury.” J.A. 3472.

In weighing the pros and cons, Sims and Johnson

evaluated how the trial was going. They had been with

the jurors throughout the trial. They saw how the jury

reacted to the opening statements and closing

arguments and to the evidence presented. They also

drew upon their knowledge of the community where

the jurors lived. Recall that Sims and Johnson lived in

that community too.

All of these things went into making the decision,

that at that time, in that venue, with that jury, against

the evidence that had been presented so far in that

trial, they should not introduce certain mitigating

evidence. Sims and Johnson made the choice—the

App. 91

excruciating choice—that the benefits of the mitigation

evidence, in this situation, were not worth the risks.

To be sure, one could have a different view. Like the

majority, one could conclude that in the face of the

inevitably gruesome evidence about what Stokes did,

the best chance to save his life was to attempt to

humanize that conduct through the personal mitigation

evidence. Maj. Op. at 28.

But trial counsel considered that approach. Their

best judgment, sitting in counsel’s chair with an

appreciation of the dynamics at the moment, was that

the mitigating evidence would do more harm than

good. We are in no position to label that decision

unreasonable. In fact, the Supreme Court has provided

guidance in the context of similar arguments.

Substituting Stokes for the petitioner in Wong v.

Belmontes, 558 U.S. 15, 25 (2009), Stokes would argue

for a “more-evidence-is-better” approach; “after all,

what is there to lose?” “But here there was a lot to lose.

A heavyhanded case to portray [Stokes] in a positive

light, with or without experts, would have invited the

strongest possible evidence in rebuttal—the evidence

that [Stokes] was responsible for not one but two

murders.” Id. The Supreme Court tells us that we

should not second guess those decisions.

Despite that, the majority engages in just that sort

of second guessing, chastising Sims and Johnson about

how they should have tried the case. According to the

majority, the concern counsel identified “reflects a

misunderstanding of the duty to mitigate. Trial counsel

were not obliged to ask the jury to excuse Stokes’s

actions. Instead, their duty was to mitigate Stokes’s

App. 92

‘moral culpability.”’ Maj. Op. at 27. Remarkably, the

majority goes on: “[i]f trial counsel believed the jury

would not have responded well to a presentation that

minimized Stokes’s conduct, their duty was to find a

way to convey this highly significant evidence without

doing so.” Maj. Op. at 29.

I agree with the majority that the purpose of

mitigating evidence is not to excuse conduct, but to

help place the moral judgment about the conduct in a

context more favorable to the defendant. And in

sociology classes, law review articles and even

appellate court chambers, that distinction may seem

clear. But in the fast-paced and intense context of a

trial, particularly one in which a defendant’s life is in

the hands of twelve jurors from the community, the

line is blurry. Even if presented in the best way by the

most capable of lawyers, it seems far from

unreasonable for Sims and Johnson to be concerned

that the jury would not accept that distinction. In my

view, this is the exact type of strategic judgment to

which we must defer. Indeed, Strickland tells us that.

It counsels us to make every effort to “eliminate the

distorting effects of hindsight” and to “indulge a strong

presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance . . . .”

Strickland, 466 U.S. at 689.

Likely recognizing the difficult hurdle of claiming

ineffective assistance based on strategic decisions,

Stokes tries to masquerade his criticism of those

strategic decisions as criticism about preparation. He

is right that without a reasonable investigation,

counsel does not get the benefit of the strong deference

App. 93

we afford to strategic decisions. Seizing on that law,

Stokes argues that trial counsel did not sufficiently

investigate mitigation evidence and did not do so soon

enough. Although the majority largely agrees with

Stokes, in my view this argument also falls short. “The

question is whether an attorney’s representation

amounted to incompetence under prevailing

professional norms, not whether it deviated from best

practices or most common custom.” Harrington v.

Richter, 562 U.S. 86, 105 (2011) (internal quotation

marks omitted). Capital sentencing counsel has an

“obligation to conduct a thorough investigation of the

defendant’s background . . . to discover all reasonably

available mitigating evidence,” but the investigation

need only be “reasonably thorough.” Owens, 961 F.3d at

413 (internal quotation marks and citations omitted).

We are to employ a highly deferential view of trial

counsel’s performance, recognizing the dangers of

second-guessing counsel’s assistance after an adverse

sentence and acknowledging there are “countless ways

to provide effective assistance in any given case.”

Strickland, 466 U.S. at 689.

Here, as noted above, the record demonstrates the

significant work that trial counsel and their team did

in interviewing witnesses and working with experts to

develop a trial strategy. As described above, trial

counsel’s investigative efforts involved interviewing a

significant number of Stokes’ family and friends to

learn about his upbringing. Through those efforts, trial

counsel learned extensive and specific information

about the traumatic and abusive upbringing Stokes

endured. While I recognize not every detail of

mitigation evidence was discovered, that, of course, is

App. 94

not required. What is clear is that trial counsel’s

investigation went well beyond broad outlines of

Stokes’ childhood troubles.

This simply is not a situation where trial counsel

overlooked “red flags” about Stokes in investigating

their case. Rompilla v. Beard, 545 U.S. 374, 392 (2005).

It is also not a case where trial counsel “did not even

take the first step of interviewing witnesses or

requesting records.” Porter v. McCollum, 558 U.S. 30,

39 (2009). Indeed, trial counsel’s investigative efforts

here were more than sufficient, particularly when

compared to the attorneys’ work in Bobby v. Van Hook,

558 U.S. 4, 9–10 (2009) where the record there showed

that counsel “looked into enlisting a mitigation

specialist when the trial was still five weeks away” and

were in touch with expert witnesses “more than a

month before trial.” The Supreme Court there found

that trial counsel’s performance was not

constitutionally deficient in terms of the timing and

scope of the investigation, and that “even if . . . counsel

performed deficiently by failing to dig deeper, [the

defendant] suffered no prejudice as a result.” Id. at 12.

Interestingly enough, the majority’s analysis

confirms that trial counsel’s investigation went “beyond

some investigations that have been deemed

unreasonable.” Maj. Op. at 26 n.9. It also rightly notes

that counsel responded to that investigation by

identifying witnesses who could have presented the

personal mitigating evidence available. “[M]embers of

Stokes’s family and a social worker were prepared to

testify. A neurologist and psychiatrist were prepared to

testify about Stokes’s HIV status, but presumably could

App. 95

have offered other personal testimony about Stokes

instead.” Maj. Op. at 27. The absence of mitigating

evidence about Stokes’ upbringing and childhood was

not a matter of preparation, or lack thereof. It was the

result of strategic decision-making by trial counsel in

the thick of an intense trial.

In hindsight, one could argue that counsel could

have done more. Hindsight, after all, is always twentytwenty. But that is simply not the standard we apply

here. “Strickland does not require counsel to

investigate every conceivable line of mitigating

evidence no matter how unlikely the effort would be to

assist the defendant at sentencing.” Wiggins v. Smith,

539 U.S. 510, 533 (2003).

Trial counsel conducted the “reasonably thorough”

investigation required of capital sentencing counsel.

Owens, 967 F.3d at 413, 417 (finding no deficiency in

counsel’s mitigation team’s efforts and further rejecting

the complaint that counsel failed to present mitigating

evidence within their possession, noting that counsel

“judged with reasonable competence in avoiding such

‘double-edged’ evidence” (quoting Gray, 529 F.3d at

239)); see also Strickland, 466 U.S. at 691 (1984). With

a thorough investigation of law and facts completed, we

must credit counsel’s exercise of reasonable

professional judgment. Strickland, 466 U.S. at 690.

One thing professional judgment teaches is that the

evidence can cut both ways. Here, trial counsel thought

the burdens outweighed the possible benefits. Stokes

has not presented sufficient evidence to overcome the

presumption of adequate assistance for trial counsel’s

strategic decisions.

App. 96

I turn now to Stokes’ PCR counsel. Stokes claims

that not only was his trial counsel ineffective, his PCR

counsel was also. Like trial counsel, PCR counsel

investigated mitigation evidence. They hired a

mitigation investigator to conduct more interviews of

family, friends, teachers and Stokes’ ex-wife. That

investigation also unearthed even more aggravating

evidence against Stokes. They had the benefit of trial

counsel’s consultation with a social worker who was a

part of Stokes’ trial defense and had met with Stokes

as well. But, Stokes’ PCR counsel, like trial counsel,

decided not to pursue the mitigation claim, focusing

instead on an intellectual disability claim and an

actual conflict of trial counsel claim, which they felt

were the stronger claims.*

Stokes claimed that trial counsel labored under an actual conflict

of interest because the State’s key witness at trial was Stokes’ exwife. Trial counsel Sims prosecuted Stokes in his earlier assault

case. Stokes claimed this conflict prejudiced him because Sims

failed to explore several lines of inquiry in cross-examining Stokes’

ex-wife during the sentencing phase allegedly due to this conflict.

I am not convinced that trial counsel Sims labored under any

actual conflict of interest. This issue was adjudicated below and as

the district court recognized, the PCR court credited Sims’

testimony that he knew Stokes’ ex-wife would testify and his

declaration that there was nothing in his earlier prosecution that

would inhibit his defense. Sims testified that he had a theory in

mitigation as to how to address the incident involving Stokes’ exwife and noted that one of the issues he was trying to show was

Stokes’ remorse. As for his representation as a whole, when asked

if he labored under a conflict Sims stated that “if I thought I

couldn’t have represented Mr. Stokes to the best of my ability I

would not have been in the case.” J.A. 1618.

App. 97

Stokes claims in doing so, PCR counsel’s assistance

was ineffective. He claims that the mitigation issue

should have been pressed. And as he and the majority

note, PCR counsel now agree. In this collateral

proceeding, PCR counsel conceded that they should

have pursued the claim.

The testimony of PCR counsel certainly supports

Stokes’ claim. But their testimony as a whole must be

considered from counsel’s perspective at that time and

without the “distorting effects of hindsight.” Strickland,

466 U.S. at 689. And importantly, PCR counsel

admitted that if they thought the ineffective assistance

of counsel claim was strong, they would have presented

that claim. In their own words, they “made some sort

of judgment, explicit or implicit” in deciding not to

pursue the referenced mitigation claim. J.A. 3259. That

was the judgment at the time.

That testimony suggests that PCR counsel

considered presenting mitigating evidence but decided

against it. In other words, like trial counsel, they made

a strategic decision not to include that and other claims

that, at the time, they considered weaker. Instead, they

felt the best approach was to focus only on the

strongest claims.

Consistent with that conclusion, the record reveals

that Stokes’ pro se application for habeas relief

includes the mitigating evidence issue. Then PCR

counsel filed an amended application removing the

mitigation issue. Removing an existing ground provides

additional evidence of a conscious decision.

App. 98

And let’s not forget that PCR counsel are

experienced death penalty lawyers. One of Stokes’ PCR

attorneys is currently a law professor and director of

death penalty litigation at a law school who

transitioned to that role after working almost

exclusively on post-conviction and federal habeas cases

while in private practice. He was trained in the

development and presentation of mitigating evidence in

death penalty cases and had done this work before.

While even the best lawyers can make mistakes, PCR

counsel’s experience is even more evidence that counsel

made a strategic decision not to pursue the mitigating

evidence claim.

Finally, I find it significant that PCR counsel

acknowledged “falling on [the] sword” for Stokes. J.A.

3044. In fairness, counsel admitted that in using that

term, he meant “I didn’t do as good a job as I should

have.” J.A. 3044. But to me, when considered in the

context of his testimony as a whole, PCR’s admission

amounts to acceptance of responsibility in hindsight for

a failed effort; not necessarily an effort that was

ineffective at the time. In other words, PCR counsel,

after his efforts proved unsuccessful, stated that he

would have done things differently as he thought about

that case several years later. Accepting that as true, it

does not change the fact that PCR counsel, at the time,

made a strategic decision to pursue the claims that

they felt were the strongest. That view of the decision

in hindsight is precisely what the Supreme Court has

prohibited.

While one might reasonably say PCR counsel took

the wrong approach in dropping the claim, it was

App. 99

hardly unreasonable. In presenting arguments, lawyers

often debate whether to pursue all potential arguments

hoping one will stick—or to laser in on the best

arguments because of concerns that the weaker ones

may dilute the stronger ones. Reasonable minds can

differ on that question. But the Supreme Court tells us

that this approach is not unreasonable. “Even if some

of the arguments would unquestionably have supported

the defense, it does not follow that counsel was

incompetent for failing to include them.” Yarborough v.

Gentry, 540 U.S. 1, 7 (2003). As is the case with almost

any trial decision, “[f]ocusing on a small number of key

points may be more persuasive....” Id. Thus, “[w]hen

counsel focuses on some issues to the exclusion of

others, there is a strong presumption that he did so for

tactical reasons rather than through sheer neglect.” Id.

at 8; see also Workman v. Superintendent Albion SCI,

915 F.3d 928, 942 (3d Cir. 2019) (discussing this

presumption in an attorney’s decision to pursue some

claims and decline to pursue others as a tactical choice

in relation to Martinez). Guided by Strickland, we must

indulge the strong presumption that counsel’s conduct

falls within the wide range of reasonable professional

assistance. Strickland, 466 U.S. at 689. Here, PCR

counsel made a strategic decision to focus on other

claims and that was reasonable under Strickland.

But even if Stokes could establish his trial counsel

and his PCR counsel were deficient, he must show

prejudice under Strickland. To show prejudice, a

petitioner must demonstrate a reasonable probability

that “at least one juror would have struck a difference

App. 100

balance” and voted against the death penalty after

having heard additional available mitigation evidence.

Wiggins, 539 U.S. at 537. “To assess that probability,

we consider ‘the totality of the available mitigation

evidence—both that adduced at trial, and the evidence

adduced in the habeas proceeding’—and ‘reweig[h] it

against the evidence in aggravation.”’ Porter, 558 U.S.

at 41 (quoting Williams v. Taylor, 529 U.S. 362, 397–98

(2000)).

Considering the totality of the evidence, both

aggravating and mitigating, I do not see where Stokes

has “affirmatively prove[n] prejudice.” Strickland, 466

U.S. at 693. Even crediting mitigating evidence derived

from both trial counsel and PCR counsel’s efforts and

interviews, as well as potential testimony about Stokes’

troubled childhood, neglectful parents, abuse, and

trauma, and even if federal habeas counsel’s child

development expert testified, the aggravating evidence

is simply overwhelming. It is ha

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