Opposition Brief — Bryan P. Stirling, Director, South Carolina Department of Corrections, et al., Petitioners v. Sammie Louis Stokes

NO. 22-1234

In the

Supreme Court of the United States

________________

BRYAN P. STIRLING, Director,

South Carolina Department of Corrections; and

LYDELL CHESTNUT, Deputy Warden of Broad River

Road Correctional Secure Facility,

v.

Petitioners,

SAMMIE LOUIS STOKES,

________________

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

________________

BRIEF IN OPPOSITION

________________

Diana L. Holt

DIANA HOLT, LLC

P.O. Box 6454

Columbia, SC 29260

(803) 782-1663

Ashley C. Parrish

Paul Alessio Mezzina

Counsel of Record

Alexander Kazam

Edward Benoit

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

pmezzina@kslaw.com

Counsel for Respondent

September 7, 2023

**CAPITAL CASE**

QUESTIONS PRESENTED

1. Did the Fourth Circuit abuse its discretion in

concluding that the State forfeited its 28 U.S.C.

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

and affirmatively relying on evidence that the State

now asserts was barred by § 2254(e)(2)?

2. Applying the Strickland standard to the facts

of this case, did the Fourth Circuit err in concluding

that Stokes’ trial counsel provided ineffective

assistance by failing to reasonably investigate and

present compelling mitigation evidence, and that

Stokes’ collateral counsel were ineffective for failing to

develop and present a claim based on that ineffective

assistance?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE ................................... 4

A. Stokes’ Social History ................................... 4

B. The Crime ..................................................... 5

C. The Trial ....................................................... 6

D. State Post-Conviction Proceedings .............. 8

E. Federal Habeas Proceedings ........................ 9

REASONS FOR DENYING THE PETITION ......... 12

I.

The Forfeiture Issue Is Unworthy of Review ... 13

A. The Fourth Circuit Complied with This

Court’s GVR Order ..................................... 13

B. The State’s Forfeiture Arguments

Request Factbound, Splitless Error

Correction ................................................... 15

C. The Forfeiture Decision Is Correct ............ 18

II. The Strickland Issue Is Unworthy of Review .. 23

A. The State’s Strickland Arguments

Request Factbound, Splitless Error

Correction ................................................... 23

B. The Strickland Decision Is Correct ........... 24

CONCLUSION ......................................................... 36

iii

TABLE OF AUTHORITIES

Cases

Anderson v. City of Bessemer City,

470 U.S. 564 (1985) ................................................ 30

Atkins v. Virginia,

536 U.S. 304 (2002) ................................................ 32

Barnes v. Alabama,

578 U.S. 994 (2016) ................................................ 14

Day v. McDonough,

547 U.S. 198 (2006) .............................. 16, 21, 22, 23

Dick v. Oregon,

140 S. Ct. 2712 (2020)............................................ 14

Easley v. Reuss,

532 F.3d 592 (7th Cir. 2008).................................. 18

Eichorn v. AT&T Corp.,

484 F.3d 644 (3d Cir. 2007) ................................... 17

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) .................................................... 33

Fontroy v. Owens,

23 F.3d 63 (3d Cir. 1994) ....................................... 14

Gonzales v. Thaler,

565 U.S. 134 (2012) ................................................ 21

Griswold v. Coventry First LLC,

762 F.3d 264 (3d Cir. 2014) ................................... 18

Hamer v. Neighborhood Hous. Servs. of Chi.,

583 U.S. 17 (2017) .................................................. 21

Harrington v. Richter,

562 U.S. 86 (2011) .................................................. 33

iv

Haynes Trane Serv. Agency

v. Am. Standard, Inc.,

573 F.3d 947 (10th Cir. 2009)................................ 18

Henry v. City of Rock Hill,

376 U.S. 776 (1964) ................................................ 14

Hernandez v. Starbuck,

69 F.3d 1089 (10th Cir. 1995)................................ 17

Hightower v. Tex. Hosp. Ass’n,

73 F.3d 43 (5th Cir. 1996)...................................... 19

Hillman v. IRS,

263 F.3d 338 (4th Cir. 2001).................................. 16

Int’l Ore & Fertilizer Corp.

v. SGS Control Servs., Inc.,

38 F.3d 1279 (2d Cir. 1994) ................................... 17

Kao Corp. v. Unilever U.S., Inc.,

441 F.3d 963 (Fed. Cir. 2006) ................................ 18

Kennedy v. City of Villa Hills,

635 F.3d 210 (6th Cir. 2011).................................. 17

Laitram Corp. v. NEC Corp.,

115 F.3d 947 (Fed. Cir. 1997) ................................ 17

Martinez v. Ryan,

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

Norton v. Sam’s Club,

145 F.3d 114 (2d Cir. 1998) ................................... 18

Penry v. Lynaugh,

492 U.S. 302 (1989) .......................................... 23, 26

Porter v. McCollum,

558 U.S. 30 (2009) ........................................ 1, 24, 32

v

Rompilla v. Beard,

545 U.S. 374 (2005) .......................................... 24, 33

Schiro v. Farley,

510 U.S. 222 (1994) ................................................ 21

Sears v. Upton,

561 U.S. 945 (2010) ................................................ 24

Shinn v. Martinez Ramirez,

142 S. Ct. 1718 (2022).................................. 2, 15, 16

Singleton v. Wulff,

428 U.S. 106 (1976) ............................................ 3, 18

Smith v. Robbins,

528 U.S. 259 (2000) ................................................ 30

Sniado v. Bank Austria AG,

378 F.3d 210 (2d Cir. 2004) ................................... 14

Spears v. United States,

555 U.S. 261 (2009) ................................................ 13

Squaw Valley Dev. Co. v. Goldberg,

395 F.3d 1062 (9th Cir. 2005)................................ 19

Strickland v. Washington,

466 U.S. 668 (1984) .......................................... 32, 36

Texas v. United States,

798 F.3d 1108 (D.C. Cir. 2015) .............................. 15

Tyler v. Cain,

533 U.S. 656 (2001) ................................................ 14

United States v. Ardley,

242 F.3d 989 (11th Cir. 2001)................................ 15

United States v. Burnette,

423 F.3d 22 (1st Cir. 2005) .................................... 14

vi

United States v. Cavett,

304 F. App’x 458 (7th Cir. 2008) ........................... 15

United States v. Ford,

184 F.3d 566 (6th Cir. 1999).................................. 17

United States v. Kennedy,

137 F. App’x 685 (5th Cir. 2005) ........................... 14

United States v. Norman,

427 F.3d 537 (8th Cir. 2005).................................. 15

United States v. Samora-Sanchez,

143 F. App’x 90 (10th Cir. 2005) ........................... 15

United States v. Vanegas,

612 F. App’x 664 (4th Cir. 2015) ........................... 14

Wellness Int’l Network, Ltd. v. Sharif,

575 U.S. 665 (2015) ................................................ 15

Wiggins v. Smith,

539 U.S. 510 (2003) ............................... 1, 13, 24, 25,

27, 28, 29, 33, 34

Williams (Terry) v. Taylor,

529 U.S. 362 (2000) .......................................... 24, 33

Williams v. Norris,

576 F.3d 850 (8th Cir. 2009).................................. 22

Wood v. Milyard,

566 U.S. 463 (2012) ................................................ 21

Statutes

28 U.S.C. § 2254(b)(3) ............................................... 21

28 U.S.C. § 2254(e)(2) ...................... 1, 2, 3, 10, 12, 15,

16, 17, 18, 19, 20, 21, 22

INTRODUCTION

Sammie Stokes was sentenced to death without

representation by competent counsel. Stokes suffered

an exceptionally traumatic childhood marred by abuse

and extreme deprivation—the “kind of troubled

history [this Court has] declared relevant to assessing

a defendant’s moral culpability.” Porter v. McCollum,

558 U.S. 30, 41 (2009) (per curiam) (quoting Wiggins

v. Smith, 539 U.S. 510, 535 (2003)). In that traumatic

history, any reasonably competent lawyer would have

found an abundance of mitigating evidence that might

well have persuaded jurors to spare Stokes’ life. Yet

his trial counsel neither investigated that evidence

thoroughly nor presented any of it at sentencing. As a

result, the jury heard only the worst about Stokes, a

one-sided presentation with no counterbalancing

mitigation evidence. Stokes’ collateral counsel then

inexplicably failed to raise a mitigation-based claim in

state post-conviction proceedings, which excuses

Stokes’ procedural default of that claim under

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

The Fourth Circuit granted Stokes habeas relief,

which meant only that the State would have to either

grant him a new sentencing hearing with

constitutionally adequate counsel or resentence him to

life in prison. Instead of accepting that decision, the

State attempted to resurrect, in a rehearing petition,

an objection it had long ago abandoned in the district

court and never even mentioned on appeal: that 28

U.S.C. § 2254(e)(2) prohibited an evidentiary hearing

on the merits of Stokes’ ineffective-assistance claim.

In response, Stokes pointed out the obvious: The State

had failed to preserve that objection. The Fourth

2

Circuit denied rehearing and refused to stay the

mandate.

After the Fourth Circuit denied the State’s

rehearing petition and while the State’s petition for

certiorari was pending, this Court addressed

§ 2254(e)(2) in Shinn v. Martinez Ramirez, 142 S. Ct.

1718 (2022). The Court then issued an order granting

the State’s petition in this case, vacating the Fourth

Circuit’s decision, and remanding the case for further

consideration in light of Shinn. Consistent with that

GVR order, the Fourth Circuit requested

supplemental briefing from the parties and held oral

argument on whether the Shinn issue had been

preserved. In a thorough, well-reasoned opinion, the

panel held that the State had forfeited the issue by

failing to raise it on appeal and by inviting the panel

to rely on the allegedly improper evidence to reject

Stokes’ claim on the merits. Accordingly, the panel

reinstated its prior decision and again ordered

resentencing.

The State’s main argument in its latest petition is

that the Fourth Circuit “shockingly defie[d]” this

Court’s GVR order by undertaking a preservation

analysis.

Pet. 2–3.

That argument betrays a

fundamental misunderstanding of this Court’s GVR

practice.

As every court of appeals has long

recognized, and as Justices of this Court have

emphasized, GVR orders are not determinations on

the merits and do not purport to resolve factbound

issues of preservation. The Fourth Circuit had every

right to address the State’s forfeiture on remand—

indeed, it had an obligation to do so.

3

The State’s further contention that the Fourth

Circuit’s forfeiture analysis “is simply wrong,” Pet. 3,

is a plea for factbound error correction—one all the

more unconvincing because it involves an issue that is

“left primarily to the discretion of the courts of

appeals.” Singleton v. Wulff, 428 U.S. 106, 121 (1976).

In any event, the Fourth Circuit’s analysis is correct.

Even apart from the State’s abandonment of the

§ 2254(e)(2) issue in the district court, the State failed

to raise the issue in its 100-page brief on appeal. Not

only that—the State affirmatively invited the court to

rely on the allegedly improper evidence to reject

Stokes’ claim on the merits. The Fourth Circuit’s

refusal to overlook that blatant forfeiture is perfectly

reasonable. Indeed, giving the State a do-over would

have amounted to a perverse double standard—

enforcing Stokes’ counsel’s inadvertent forfeiture (of a

meritorious ineffective-assistance claim) while

excusing

the

State’s

apparently

strategic

relinquishment (of the Shinn issue)—all so the State

could execute a man who had never received a fair

sentencing.

Apart from the forfeiture issue, the State raises a

jumble of factbound objections to the Fourth Circuit’s

Strickland analysis. The State does not identify any

circuit split, any conflict with this Court’s precedent,

or any other issue that warrants this Court’s review.

And the Fourth Circuit’s carefully reasoned decision

remains correct on the merits. As that court rightly

observed in its decision on remand, the State’s

arguments that it “misapplied the Strickland test …

rest in large part on mischaracterizations of our

analysis.” App. 26 n.7. This Court should deny

review.

4

STATEMENT OF THE CASE

A. Stokes’ Social History

Sammie Louis Stokes was born on December 21,

1966. Growing up in Branchville, South Carolina, he

faced extraordinary adversity, even by the standards

of that community. Stokes’ mother, Pearl, was known

as an aggressive, verbally abusive alcoholic who was

often too drunk to care for him. App. 40; see also

JA2528, JA2552, JA2558, JA2868–69, JA3116–19.

Stokes and his sister Sara sometimes stole food from

neighbors just to have something to eat. App. 40. On

some weekends, they stayed with their grandmother,

who ran a brothel out of her home. Id. When Stokes

was nine years old, his father died suddenly on the

front lawn, where Stokes saw his body. App. 40–41.

Pearl lived with a man, Richard, who was also a

notorious drunk. App. 40; JA2528, JA2553. Richard

was violent and abusive. App. 41. He beat Pearl

regularly, often in front of the children. Id.; see also

JA2552, JA2528. On one occasion, he threw Pearl to

the ground and stomped on her face, breaking her jaw.

App. 41; see also JA2558, JA3117. On another, he

broke a liquor bottle over her head. App. 41; see also

JA2552.

The children, too, experienced physical and sexual

abuse. Stokes received whippings with an electrical

cord. App. 41. Richard also regularly had sex with

Sara. Id.; see also JA2552. When Stokes was 11 or 12,

his babysitter sexually abused him. App. 41. When

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

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

5

leaving him parentless. Id. Stokes and his sister then

lived unsupervised with Richard. Id.

According to the child development expert

retained by Stokes’ federal habeas counsel, Dr. James

Garbarino, Stokes experienced an extremely

traumatic childhood that impaired his future

emotional regulation and social adaptation. App. 42.

Applying the CDC’s standard for measuring childhood

adversity, Dr. Garbarino found that Stokes was

exposed to more childhood adversity than 999 out of

1,000 Americans. App. 42 n.1.

B. The Crime

In 1998, while completing a prison sentence for

assault, Stokes agreed to carry out the murder of his

cellmate’s girlfriend, Connie Snipes, for $2,000. On

the day of the crime, Snipes agreed to accompany

Stokes and his childhood friend, Norris Martin, into

the woods, where she thought the three of them were

going to murder someone else (Doug Ferguson).

App. 42–43. The plan was a ruse. Stokes and Martin

each raped Snipes and then each shot her once in the

head, killing her. App. 43.

Stokes and Martin were arrested soon afterward.

Id. While in jail, Stokes penned a detailed letter

confessing to the murder. Id.; see also JA1439–50. In

that letter he expressed remorse, stating that “God is

going to punish me for my part” in the crime and that

“God is going to bless [Snipes’ family] and help them

make it through this.” JA1449.

6

C. The Trial

The trial court appointed Thomas Sims as Stokes’

lead counsel and Virgin Johnson as second chair.

App. 44. Although former prosecutors, they had

limited death-penalty experience and virtually no

experience preparing a mitigation defense. Id.

Trial was bifurcated into a guilt phase and a

penalty phase.

Given Stokes’ confession, his

conviction in the guilt phase was essentially

guaranteed. Hence, trial counsel’s main task was to

prepare for the penalty phase. Yet counsel waited six

months before starting that work and began the

mitigation investigation only six weeks before trial.

App. 44; see also JA2507–25.

They hired a

receptionist as their investigator even though she had

no experience, and they devoted only 45 hours to the

investigation. App. 44.

That investigation, meager as it was, uncovered

several red flags about Stokes’ early life. App. 66 n.9.

For example, the investigation revealed that Stokes’

parents were alcoholics, that Stokes and his sister

were frequently left unsupervised, and that Stokes’

mother was regularly abused. JA2529, JA2553–54,

JA2947, JA2868–69, JA3116–19. During the penalty

phase, however, trial counsel declined to present any

witnesses—such as Stokes’ family members, a social

worker, or a psychologist—who could speak to that

adversity or explain how it may have affected Stokes.

The reason for this omission, trial counsel later

claimed, was their assumption that the predominantly

“African-American” jury would lack sympathy for

Stokes’ “poor upbringing.” App. 67 (quoting JA3524).

7

Instead of presenting mitigation evidence, trial

counsel put on a single witness: “prison adaptability

expert” James Aiken. Aiken testified only that a

prison could “manage” Stokes by using “lethal force” if

necessary. App. 46–47, 170; see also JA1320–21.

Aiken offered no opinion that Stokes was actually

capable of adapting to life in prison. The State

highlighted the weakness of Aiken’s testimony in

closing argument, noting that if a man is “adapting to

prison, you don’t have to punish him.” App. 47

(quoting JA1365–66).

Meanwhile, the State called 12 witnesses as part

of its case in aggravation. Id. Norris Martin testified

in graphic detail about the violence of the Snipes

murder, and another witness testified about Stokes’

role in the later murder of Doug Ferguson. Id. The

State also called Stokes’ ex-wife, Audrey Smith, to

testify about a time Stokes had assaulted her—an

incident for which Sims had successfully prosecuted

Stokes before returning to private practice. App. 112–

15.

In closing argument, the State emphasized the

lopsidedness of the evidence: “Have you heard one

piece of evidence favorable to Sammie Stokes that

maybe you should consider a life sentence?” JA1370.

In response, having failed to present any evidence of

Stokes’ childhood trauma, Stokes’ counsel was left to

plead for life based on Stokes’ “remorse.” JA1382.

Still, the jury apparently contemplated sparing

Stokes’ life. The jurors sent a note to the court

requesting information about the privileges Stokes

would have if he lived in a maximum-security prison.

8

JA1405. But ultimately the jury returned a death

sentence. App. 48.

Of the six statutory aggravating factors alleged by

the State to establish eligibility for the death penalty,

the jury rejected two—the ones associated with the

State’s allegations that Stokes tortured Snipes and

murdered Ferguson. JA1390, JA1406–07.

Stokes’ convictions and death sentence were

affirmed on direct appeal. App. 106–07.

D. State Post-Conviction Proceedings

In October 2001, Stokes filed an application for

post-conviction relief (“PCR”) in state court. His

petition included an ineffective-assistance claim based

on trial counsel’s failure to develop and present

mitigating evidence, as well as a claim that Sims had

a conflict of interest because he had prosecuted Stokes

for the Smith assault. App. 49; see also JA2887,

JA3245.

The court appointed as PCR counsel Keir Weyble

and Robert Lominack, who filed an amended

application in May 2002 adding several more claims.

App. 49. They also deposed trial counsel and hired

new experts and a new mitigation investigator, who

uncovered new evidence showing that Stokes had a

traumatic childhood marked by extreme neglect,

dysfunction, and abuse. Id.; see also JA2552, JA2557–

58, JA2868, JA3114–19. Despite this compelling new

evidence, in August 2004, PCR counsel filed another

amended application dropping the mitigation claim.

In its place they added an Eighth Amendment

intellectual-disability claim.

They ultimately

abandoned that claim after Stokes was found

9

competent. App. 49. But even after the intellectualdisability claim failed to pan out, PCR counsel never

attempted to revive the mitigation claim. See, e.g.,

JA2918, 2992, 3262, 3371.

The PCR court denied Stokes’ application in

October 2010. App. 49. The South Carolina Supreme

Court and this Court both denied review. Id.

E. Federal Habeas Proceedings

In March 2016, Stokes filed a federal habeas

petition. As relevant here, he raised three claims:

(1) trial counsel were ineffective for failing to develop

and present mitigating evidence, (2) trial counsel were

ineffective for relying on Aiken as their only penaltyphase witness and failing to prepare him properly, and

(3) Sims labored under a conflict of interest that

adversely affected his performance. App. 52.

Because the first two claims were not exhausted

in state proceedings, the magistrate judge held an

evidentiary hearing to determine whether there was

good cause for the default under Martinez. App. 52–

53. Stokes’ trial counsel testified that they declined to

pursue mitigation because “there were AfricanAmericans” on the jury who they assumed would be

unsympathetic. JA3471–72. PCR counsel, for their

part, acknowledged that they had no valid reason for

abandoning the mitigation claim. App. 58–59; see also

JA2918, JA3017.

The magistrate judge’s report recommended

denying all relief. App. 50. The district court adopted

the report with modifications, holding that PCR

counsel did not perform deficiently in abandoning the

mitigation claim and that, in any event, Stokes had

10

not been prejudiced by counsel’s failure to present

mitigation evidence. App. 153, 163. The court also

denied relief on the Aiken claim and the conflict-ofinterest claim. App. 50.

The Fourth Circuit reversed. The panel first

concluded that “PCR counsel’s failure to develop and

present a claim based on trial counsel’s mitigation

efforts”

amounted

to

ineffective

assistance,

establishing good cause for Stokes’ default. App. 52.

Proceeding to the underlying claim, the panel

concluded that trial counsel were ineffective on two

independent grounds. First, trial counsel failed to

conduct an adequate mitigation investigation. And

second, even based on what trial counsel knew at the

time, the decision not to present any meaningful

mitigation evidence was objectively unreasonable.

App. 65–67. Because that meritorious claim by itself

entitled Stokes to a new sentencing, the court did not

reach his other claims.

The State petitioned for rehearing en banc. In its

petition, the State tried to a revive an argument it had

briefly mentioned to the magistrate judge, but which

it had neither included in its briefs before the Fourth

Circuit panel nor mentioned at oral argument. The

State argued that 28 U.S.C. § 2254(e)(2) precluded the

district court from holding an evidentiary hearing on

the merits of Stokes’ ineffectiveness claim, and thus

the Fourth Circuit panel should not have considered

any evidence outside the state-court record in ruling

on Stokes’ ineffective-assistance claim. CA4 Dkt. 811 at 14–15. In response, Stokes pointed out that the

State had forfeited the issue by not raising it before

the panel and by urging the panel to rely on that same

11

evidence to reject Stokes’ claim on the merits. CA4

Dkt. 84 at 4–5. No judge called for a vote on the

State’s petition, and the petition was denied.

The Fourth Circuit denied the State’s motion to

stay its mandate pending the filing of a petition for

certiorari (CA4 Dkt. 90), and the Chief Justice denied

the State’s application for a stay or recall of the

mandate (No. 21A61 (Oct. 22, 2021)). While the

State’s petition for certiorari was pending, the Court

decided Shinn. The Court then issued a summary

order granting the State’s petition, vacating the

Fourth Circuit’s decision, and remanding for further

consideration in light of Shinn.

On remand, the Fourth Circuit requested

supplemental briefing regarding any issues the

parties deemed relevant, including whether the State

had preserved the Shinn issue. After hearing oral

argument, the Fourth Circuit held that the State had

“forfeited the argument by not raising it on appeal and

instead using evidence from the hearing” to advocate

rejecting Stokes’ claims on the merits. App. 10. The

court therefore did not reach the question (which it

acknowledged was “anything but clear”) whether the

State had preserved the issue in the district court.

App. 12 & n.5. The court also declined to exercise its

discretion to excuse the State’s forfeiture. App. 19–26.

Accordingly, the court reinstated its Strickland

decision. The State sought a stay of the mandate

pending its petition for certiorari, which was denied,

and then filed its petition.

12

REASONS FOR DENYING THE PETITION

The State fails to present any issues worthy of this

Court’s review. Its petition urges this Court to wade

into a dense factual record to resolve case-specific

questions of no meaningful importance to other

litigants or lower courts. The State makes no real

attempt to identify a circuit split, and the questions

presented turn on the application of well-established

legal principles to case-specific facts—the routine

business of the lower courts.

Moreover, the Fourth Circuit’s decision is correct.

Regarding the preservation issue, the court applied

traditional rules of waiver and forfeiture—as it was

obliged to do following this Court’s GVR—and it relied

on the familiar principle that parties (including

appellees) forfeit issues by failing to brief them. If the

State had wanted to press its § 2254(e)(2) objection, it

had to raise it on appeal, because Stokes expressly

asked the Fourth Circuit to reach the merits of his

ineffective-assistance claim and grant him relief based

on evidence outside the state-court record. Instead,

the State joined Stokes in inviting the panel to

consider that evidence in order to rule on the merits of

Stokes’ claim. Only after the panel sided with Stokes

on the merits did the State change tack and raise the

§ 2254(e)(2) issue in a petition for rehearing. The

Fourth Circuit did not abuse its discretion by refusing

to indulge that sandbagging.

Regarding the Strickland issue, the Fourth

Circuit correctly held—and the State no longer

contests—that Stokes’ trial counsel performed

deficiently by failing to conduct an adequate

mitigation investigation and failing to present any

13

mitigation evidence. The Fourth Circuit also correctly

held that Stokes’ PCR counsel were ineffective for

neglecting to develop and present a mitigation-based

ineffective-assistance claim.

As PCR counsel

themselves acknowledged, they had no good reason for

abandoning that powerful claim in favor of other,

much weaker claims. And the Fourth Circuit correctly

held that trial counsel’s failures prejudiced Stokes

because, if the jury had heard the compelling

mitigation evidence that was available, there is a

“reasonable probability that at least one juror would

have struck a different balance” and voted to spare

Stokes’ life. Wiggins, 539 U.S. at 537.

In sum, the petition fails to satisfy any of the

traditional criteria for certiorari. And there is no error

in the decisions below—let alone “any error … so

apparent as to warrant the bitter medicine of

summary reversal.” Spears v. United States, 555 U.S.

261, 268 (2009) (Roberts, C.J., joined by Alito, J.,

dissenting).

I.

The Forfeiture Issue Is Unworthy of Review.

A. The Fourth Circuit Complied with This

Court’s GVR Order.

Seeking to manufacture a basis for certiorari, the

State accuses the Fourth Circuit of “defy[ing]” this

Court’s remand instruction. Pet. i, 3, 15. That

accusation is baseless. It rests on a misunderstanding

of this Court’s GVR practice and a dramatic

overreading of this Court’s summary order vacating

the Fourth Circuit’s prior decision “for further

consideration in light of Shinn v. Martinez-Ramirez.”

Pet. ii.

14

The Fourth Circuit complied with that order. As

the panel correctly observed, “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.” App. 24. In the wake of a new precedent,

this Court often issues GVR orders in dozens of

pending cases. This Court does not thereby take a

position on other issues, such as preservation, that

may affect the outcome on remand in each case. See

Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001) (rejecting

petitioner’s attempt to “find support” in a GVR order

because a GVR order is “not a ‘final determination on

the merits’” (quoting Henry v. City of Rock Hill, 376

U.S. 776, 777 (1964) (per curiam))); Dick v. Oregon,

140 S. Ct. 2712, 2712 (2020) (mem.) (Alito, J.,

concurring) (emphasizing that GVR order was “not

deciding or expressing a view on whether the question

was properly raised below but [was] instead leaving

that question to be decided on remand”); Barnes v.

Alabama, 578 U.S. 994, 994 (2016) (mem.) (Thomas,

J., concurring) (noting that GVR order did “not reflect

any view” regarding “whether petitioner’s asserted

entitlement to retroactive relief is properly presented

in the case” (quotation marks omitted)).

Accordingly, courts of appeals routinely assess

preservation following a GVR. See United States v.

Burnette, 423 F.3d 22, 23 & n.2 (1st Cir. 2005); Sniado

v. Bank Austria AG, 378 F.3d 210, 212–13 (2d Cir.

2004) (per curiam); Fontroy v. Owens, 23 F.3d 63, 66

(3d Cir. 1994); United States v. Vanegas, 612 F. App’x

664, 666 (4th Cir. 2015) (per curiam); United States v.

Kennedy, 137 F. App’x 685, 687 (5th Cir. 2005) (per

curiam); United States v. Cavett, 304 F. App’x 458, 459

15

(7th Cir. 2008); United States v. Norman, 427 F.3d

537, 539 (8th Cir. 2005); United States v. SamoraSanchez, 143 F. App’x 90, 92 (10th Cir. 2005); United

States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001)

(per curiam); Texas v. United States, 798 F.3d 1108,

1116, 1119 (D.C. Cir. 2015).

The Fourth Circuit thus broke no new ground

when, in a thorough opinion, it concluded that the

State had forfeited the Shinn issue. That disposition

was consistent with this Court’s GVR order.

B. The State’s Forfeiture Arguments

Request Factbound, Splitless Error

Correction.

Addressing the State’s forfeiture arguments

“would require a deeply factbound analysis of the

procedural history unique to this protracted litigation”

and “would provide little guidance to litigants or the

lower courts.” Wellness Int’l Network, Ltd. v. Sharif,

575 U.S. 665, 685 (2015). The State barely attempts

to argue that the Fourth Circuit’s decision conflicts

with precedent of this Court or other courts of appeal.

Nor does the State claim that the issue is one of

exceptional importance.

The State suggests that the Fourth Circuit’s

forfeiture analysis is inconsistent with this Court’s

resolution of a forfeiture issue in a footnote in Shinn.

See Pet. 23–24 (citing 142 S. Ct. at 1730 n.1). In fact,

that footnote confirms that the Court “treated

§ 2254(e)(2) as a non-jurisdictional provision subject to

the ordinary rules of forfeiture.” App. 18. This Court

acknowledged “the State’s forfeiture” and exercised its

16

“discretion to forgive” that forfeiture based on casespecific circumstances. 142 S. Ct. at 1730 n.1.

The Fourth Circuit was not bound to exercise its

discretion in the same way, let alone in materially

different circumstances. As the panel explained, this

case “is different than Shinn in important respects.”

App. 22–23.

In

Shinn,

the

State

had

“‘inadvertent[ly]’” neglected to raise the issue in the

district court but had raised it on appeal, and the

Ninth Circuit had considered it. Id. (quoting Day v.

McDonough, 547 U.S. 198, 211 (2006)); Shinn, 142 S.

Ct. at 1730 n.1. Here, in contrast, the record “suggests

that the State strategically withheld the defense or

chose to relinquish it.” App. 23 (quotation marks

omitted) (quoting Day, 547 U.S. at 211). The State

demonstrated its awareness of the issue by initially

raising it before the magistrate judge, but then

declined to raise it before the district judge or the

appellate panel, even though Stokes’ opening brief

requested relief on the merits based on the allegedly

improper evidence. See CA4 Dkt. 36 at 29–64, 107. In

fact, the State’s brief affirmatively invited the panel to

rely on that evidence to rule on the merits. See

App. 21. Only after the panel did so—and ruled

against the State—did the State attempt to backtrack

and argue that § 2254(e)(2) barred consideration of

that evidence. The Fourth Circuit acted well within

its discretion in declining to excuse that

“sandbagging.” App. 19 (quoting Hillman v. IRS, 263

F.3d 338, 343 n.6 (4th Cir. 2001)).

The State does not identify a single case from

another circuit holding that a finding of forfeiture is

inappropriate in circumstances like those presented

17

here. It makes a passing reference to “cases from the

Second, Third, Sixth, Tenth and Federal Circuit[s]”

cited in Judge Quattlebaum’s dissent. Pet. 20 (citing

App. 34). But the Second, Sixth, and Tenth Circuit

cases stand only for the universally acknowledged

proposition that “a court of appeals may affirm the

district court on any grounds supported by the

record”—not that it must do so. App. 33 (emphasis

added) (citing Hernandez v. Starbuck, 69 F.3d 1089,

1093 (10th Cir. 1995)); see also Int’l Ore & Fertilizer

Corp. v. SGS Control Servs., Inc., 38 F.3d 1279, 1283

(2d Cir. 1994); Kennedy v. City of Villa Hills, 635 F.3d

210, 214 n.2 (6th Cir. 2011). And the Third and

Federal Circuit cases hold only that, where the

appellant’s requested relief would result in a remand

for further merits proceedings, the appellee need not

raise all its merits arguments on appeal but can

reserve some arguments to raise on remand if

necessary. See Eichorn v. AT&T Corp., 484 F.3d 644,

657–58 (3d Cir. 2007); Laitram Corp. v. NEC Corp.,

115 F.3d 947, 953–54 (Fed. Cir. 1997). Here, in

contrast, Stokes’ appeal sought a favorable ruling on

the merits of his claim, meaning that if the panel

granted his requested relief, the § 2254(e)(2) issue

would not be “open for the District Court to address on

remand.” Eichorn, 484 F.3d at 657. If the State

wanted to preserve that issue, it had an obligation to

raise it as a basis for rejecting Stokes’ requested

relief—not hide it away like a timebomb to explode as

soon as the panel released its opinion.

Indeed, every one of the circuits identified by the

State recognizes that “[e]ven appellees waive

arguments by failing to brief them.” United States v.

Ford, 184 F.3d 566, 578 n.3 (6th Cir. 1999); see also,

18

e.g., Griswold v. Coventry First LLC, 762 F.3d 264, 274

n.8 (3d Cir. 2014); Haynes Trane Serv. Agency v. Am.

Standard, Inc., 573 F.3d 947, 963–64 (10th Cir. 2009);

Kao Corp. v. Unilever U.S., Inc., 441 F.3d 963, 973 n.4

(Fed. Cir. 2006); Norton v. Sam’s Club, 145 F.3d 114,

117–18 (2d Cir. 1998). It is the State’s contrary view

that is out of step with the uniform practice of lower

courts. And even if the State could identify some

variation among the circuits, this Court has long held

that preservation is a matter “left primarily to the

discretion of the courts of appeals, to be exercised on

the facts of individual cases.” Singleton, 428 U.S. at

121.

C. The Forfeiture Decision Is Correct.

Although the splitless and factbound nature of the

forfeiture issue is reason enough to deny review, the

Fourth Circuit’s analysis is also correct.

It is

undisputed that the State was aware of the

§ 2254(e)(2) argument well before Shinn. In fact, the

State initially raised a version of that argument before

the magistrate judge. See App. 12 n.5; JA2862. Yet

the State failed to obtain a ruling on the issue in the

district court. It is also undisputed that the State did

not raise the issue on appeal.

See App. 32

(Quattlebaum, J., dissenting) (acknowledging that

“[the State] certainly could have raised the issue” but

“did not” do so). Although the State belatedly raised

the argument in a petition for rehearing en banc,

courts generally do not entertain arguments raised for

the first time in a rehearing petition. App. 13; see

Easley v. Reuss, 532 F.3d 592, 594 (7th Cir. 2008) (per

curiam) (collecting cases). That rule applies to

appellants and appellees alike. See Squaw Valley Dev.

19

Co. v. Goldberg, 395 F.3d 1062, 1063 (9th Cir. 2005)

(“We reject the argument because it is made for the

first time in [appellee]’s petition for rehearing”);

Hightower v. Tex. Hosp. Ass’n, 73 F.3d 43, 44 (5th Cir.

1996) (similar).

The State’s forfeiture began in the district court.

After initially objecting to the scope of the magistrate’s

evidentiary hearing, the State fell silent on the issue,

and the magistrate’s report considered evidence

outside the state-court record in addressing “the

merits of the underlying ineffective assistance of trial

counsel claim.” JA3721. Yet the State did not mention

§ 2254(e)(2) in its response to Stokes’ objections to the

report. Instead, the State itself relied on evidence

outside the state-court record to defend the

magistrate’s ruling on “the merits of the underlying

claim” and urged the district court to adopt the

magistrate’s report in its entirety. JA3801, JA3804.

The State thus never sought or obtained a ruling from

the district court on the § 2254(e)(2) issue. 1

The State doubled down on that strategy on

appeal. Not only did it fail to cite § 2254(e)(2) in its

oversize briefing or at oral argument; it also “relied

extensively on the evidence produced during the

evidentiary hearing to argue that Stokes’s underlying

claim lacked merit.” App. 21. The State argued that

1 As the Fourth Circuit noted, “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.” App. 12 n.5. But the panel decided that it

“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.” Id.

20

even if Stokes’ default could be excused under

Martinez, the court should affirm because Stokes “had

a full opportunity to present the merits of his claim at

an evidentiary hearing” (which the State did not

suggest was improper) and failed to “prove his case

under Strickland.” CA4 Dkt. 55-1 at 71.

The State has no good explanation for keeping

§ 2254(e)(2) up its sleeve. The State now says it

“merely argued in support of the district court’s ruling

that Stokes failed to show cause and prejudice”

because that was “the only ruling available for

appeal.” Pet. 16–17. But as the State acknowledges,

the magistrate concluded that “the underlying claim

lacked merit,” and the district court held that the

claim was not even “substantial.” Id. And on appeal,

Stokes not only challenged the ruling that his claim

was defaulted—he also argued that he should prevail

on the merits of that claim. E.g., CA4 Dkt. 36 at 11,

14. He did not seek a remand for the district court to

analyze the merits (which would not have made sense

because the district court had already done so); he

instead asked that his death sentence be “vacated.”

Id. at 107. The State thus had ample notice that the

Fourth Circuit might reach the merits. Yet instead of

objecting to that possibility under § 2254(e)(2), the

State embraced it.

Perhaps recognizing the weakness of its

preservation argument, the State suggests that it did

not need to preserve its § 2254(e)(2) objection at all

because § 2254(e)(2) “limits the power of federal

courts” and is therefore impervious to waiver or

forfeiture. See Pet. 23–27 (emphasis omitted) (quoting

21

App. 36). The Fourth Circuit rejected that argument,

and for good reason.

As the panel observed, this Court “has long

rejected the notion that all mandatory prescriptions,

however emphatic, are … properly typed

jurisdictional.” App. 16 (quoting Gonzales v. Thaler,

565 U.S. 134, 146 (2012)). Congress has established

myriad “threshold condition[s]” that regulate the

timing and scope of habeas review. Id. (quoting

Thaler, 565 U.S. at 143). A provision qualifies as

jurisdictional, however, only if it clearly “speak[s] in

jurisdictional terms.” Id. (quoting Thaler, 565 U.S. at

142–43). Other limits on a court’s authority are at

most “[m]andatory claim-processing rules,” which

“may be waived or forfeited.” Hamer v. Neighborhood

Hous. Servs. of Chi., 583 U.S. 17, 20 (2017). That

principle applies with full force to “AEDPA’s statute of

limitations” and “other threshold constraints on

federal habeas petitioners.” Wood v. Milyard, 566 U.S.

463, 472 (2012); see also Schiro v. Farley, 510 U.S. 222,

229 (1994). Courts are “permitted, but not obliged” to

excuse the forfeiture of such constraints. Day, 547

U.S. at 209.

Statutory context reinforces this conclusion. As

the Fourth Circuit noted, a neighboring AEDPA

provision says that “[a] State shall not be deemed to

have waived the exhaustion requirement … unless the

State, through counsel, expressly waives the

requirement.”

App. 17–18 (quoting 28 U.S.C.

§ 2254(b)(3)). That proviso, which is missing from

§ 2254(e)(2), shows that Congress knows how to

restrict the normal rules of waiver and forfeiture when

it wants to.

22

The State has no meaningful response. It does not

seriously argue that § 2254(e)(2) speaks in

jurisdictional terms. That § 2254(e)(2) “limits the

power” of the courts in some way, Pet. 24., does not

distinguish it from a host of other procedural rules

that confine and channel judicial review. Nor is

§ 2254(e)(2) akin to the AEDPA standard of review,

which courts have treated as non-waivable because

the standard of review is an “unavoidable legal

question.” See Pet. 26–27. In contrast, § 2254(e)(2)

merely regulates what evidence can be considered and

for what purpose. It is no more “part of the structure

of review,” Pet. 26, than any other evidentiary rule.

The State’s own cited cases confirm that

§ 2254(e)(2) is subject to waiver and forfeiture. In

Williams v. Norris, the Eighth Circuit found no

forfeiture because the State “objected to an

evidentiary hearing.” 576 F.3d 850, 860 (8th Cir.

2009). Although the court also said it would have

“exercise[d] [its] discretion” to excuse any forfeiture,

id., that statement only confirms that § 2254(e)(2)

objections are forfeitable. As discussed above, the

same goes for this Court’s decision to forgive any

forfeiture in Shinn. If § 2254(e)(2) could not be

forfeited, there would be nothing to forgive.

The Fourth Circuit also had ample justification

for concluding that on the facts of this case, excusing

the State’s forfeiture would not have served “the

interests of justice.” App. 19 (quoting Day, 547 U.S. at

210). The State asked the court to “rubber-stamp an

unconstitutional death sentence” based on “an

evidentiary limitation the State knew might apply but

invited [the court] to ignore on appeal.” App. 22. As

23

the court rightly concluded, “[i]f excusing the State’s

forfeiture in this scenario best served ‘the interests of

justice,’ justice would be a hollow word indeed.” Id.

(citation omitted) (quoting Day, 547 U.S. at 210).

II. The Strickland

Review.

Issue

Is

Unworthy

of

The State’s recycled Strickland question fares no

better. The State does not contend that the Fourth

Circuit’s reinstated decision creates a circuit split, and

the panel’s factbound application of Strickland

comports with this Court’s precedent.

A. The State’s Strickland Arguments

Request Factbound, Splitless Error

Correction.

The State’s failure to allege a split is unsurprising

because the Strickland question turns on the

factbound application of settled law. Applying the

well-established Strickland standard, the Fourth

Circuit held that trial counsel’s failure to adequately

investigate and develop a mitigation defense based on

Stokes’ traumatic childhood constituted ineffective

assistance. This Court has long recognized that

“evidence about the defendant’s background and

character is relevant because of 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.’’ Penry v. Lynaugh, 492 U.S. 302, 319 (1989)

(quotation marks omitted).

Time after time, the Court has emphasized the

importance of such evidence and held that trial

counsel fall short of constitutional standards when

24

they unreasonably fail to develop it and present it to

the jury. See, e.g., Williams (Terry) v. Taylor, 529 U.S.

362, 395 (2000) (finding mitigation presentation

ineffective because counsel failed to convey

defendant’s “nightmarish childhood”); Wiggins, 539

U.S. at 536–38; Rompilla v. Beard, 545 U.S. 374, 392–

93 (2005); Porter, 558 U.S. at 32; Sears v. Upton, 561

U.S. 945, 948 (2010) (per curiam). The Fourth

Circuit’s decision fits comfortably within that line of

cases.

B. The Strickland Decision Is Correct.

The State’s factbound attacks on the Strickland

decision are meritless. The Fourth Circuit correctly

held that (1) trial counsel performed deficiently in

failing to develop and present mitigating evidence;

(2) PCR counsel performed deficiently in failing to

raise the ineffective-assistance-of-trial-counsel claim;

and (3) trial counsel’s failures prejudiced Stokes.

1.

Trial

Counsel

Deficiently.

Performed

The panel found trial counsel’s performance

deficient on two distinct grounds: First, their

“investigation was inadequate”; and second, their

“decision to withhold all personal mitigation evidence

was unreasonable.” App. 65. The State makes no

sustained effort to challenge either ground; its petition

contends only that postconviction counsel was not

deficient and that trial counsel’s failures were not

prejudicial.

See Pet. 27, 31.

Each ground is

independently sufficient to justify the Fourth Circuit’s

conclusion.

25

1. Start with counsel’s slipshod investigation.

Given Stokes’ written confession, counsel knew that

securing strong mitigation evidence was essential.

See App. 65–66. But counsel did not begin mitigation

efforts until shortly before trial, and their

inexperienced investigator started interviewing

potential witnesses less than three weeks before trial.

See id.; JA2527–45. Trial counsel did not personally

conduct any follow-up interviews or otherwise try to

develop the investigator’s findings. App. 66. And they

ultimately spent only 45 hours in total preparing for

the penalty phase. See App. 65–66; JA2507–21,

JA2522–25. Even though counsel had virtually no

experience preparing a mitigation defense, see

JA3454–57, 3507, they consulted no experienced

attorneys or mitigation experts.

App. 65.

Furthermore, despite red flags pointing to a troubled

childhood, trial counsel “failed to pursue the

indications of extreme childhood trauma, neglect, and

abuse.” App. 66 n.9. As the Fourth Circuit concluded,

“[i]n a capital murder trial where mitigating the death

penalty was the central issue in the defense, such an

investigation is objectively unreasonable.” App. 66

(citing Wiggins, 539 U.S. at 523–25).

The inadequacy of trial counsel’s investigation is

also underscored by their testimony that they thought

Stokes had simply experienced a “poor upbringing”

comparable to “struggles” that “a lot of us had.”

App. 67 (quoting JA3524). If counsel had acquired

anything like adequate familiarity with Stokes’

upbringing, they would have realized that Stokes

experienced far more than run-of-the-mill poverty.

Indeed, interviews with people from Stokes’ town

confirmed that they considered his upbringing

26

unusually difficult even for their community.

JA3220, JA3214.

See

2. The Fourth Circuit correctly held that counsel’s

“subsequent decision to withhold the personal

mitigation evidence they did have was also objectively

unreasonable.”

App. 67.

Given the State’s

aggravating evidence, trial counsel should have

known that mitigating evidence would be critical to

persuading at least one juror to spare Stokes’ life. In

such a case, the decision to present no mitigation

defense whatsoever is an extraordinary one that

demands a commensurate justification.

Yet trial counsel’s own testimony shows that the

decision to abandon a mitigation defense was based on

little more than crude stereotypes and faulty

reasoning. Johnson questioned how he could “go to a

jury … particularly African-American” and highlight

Stokes’ “poor upbringing” as a reason to “overlook” the

brutality of his crime. JA3524–25. The State accepts

this explanation at face value. See Pet. 29–30. But

counsel’s assumption that South Carolina jurors in the

1990s, especially Black jurors, would scoff at

mitigation evidence was unreasonable. See App. 70–

71. The idea that a troubled childhood can have

lasting psychological effects is not an invention of the

twenty-first century. Nor is it dependent on race.

Indeed, ten years before Stokes’ trial, this Court

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

defendants who commit criminal acts that are

attributable to a disadvantaged background … may be

less culpable than defendants who have no such

excuse.” App. 71 (quoting Penry, 492 U.S. at 319).

27

Moving beyond trial counsel’s testimony and into

the realm of post hoc rationalization, the State

speculates that counsel wanted to avoid undercutting

a strategy of “shifting blame to Martin.” Pet. 29

(emphasis omitted). But trial counsel never raised

that concern, and the State cites no record evidence

that it factored into counsel’s decision not to present

mitigation evidence. Cf. Wiggins, 539 U.S. at 526–27

(state’s invocation of a “ ‘strategic decision’ … to justify

counsel’s limited pursuit of mitigating evidence

resemble[d] more a post hoc rationalization of

counsel’s conduct than an accurate description of their

deliberations”).

In any event, the suggestion makes no sense on

its own terms. The State’s theory appears to be that

calling mitigation witnesses would have opened the

door to testimony about Stokes’ childhood bullying of

Martin. See Pet. 29; App. 80–81 (citing JA2529). But

in South Carolina, there is no danger of “opening the

door” by presenting mitigation evidence. As PCR

counsel explained, the State “doesn’t have to wait for

a door to be opened to put on evidence of a defendant’s

purported bad character” because it can introduce that

evidence on its own. JA3301.

Here, prosecutors showed no interest in

presenting evidence about Stokes’ childhood

relationship with Martin. If they had wanted to go

down that road, they could easily have elicited such

testimony from Martin himself or other witnesses.

And the impact of such testimony would have been

negligible because Stokes’ behavior toward Martin as

a child would have been of limited probative value

about their relationship as adults.

28

2.

Stokes’ PCR

Deficiently.

Counsel

Performed

The Fourth Circuit also correctly held that PCR

counsel’s performance was objectively unreasonable,

again for two distinct reasons. First, it held that

although PCR counsel’s investigation improved on

trial counsel’s, “their investigation was nevertheless

inadequate because they ignored the valuable leads

they uncovered” and “did not retain an expert capable

of applying their investigator’s findings.” App. 56–57.

Second, it held that “[b]eyond the investigation’s

shortcomings,” “PCR counsel’s abandonment of the

mitigation claim was objectively unreasonable.”

App. 59, 63; see App. 23–27. The State’s petition

ignores the first of these two grounds, either of which

is independently sufficient. See Pet. 27–30.

1. While PCR counsel’s development of mitigation

evidence improved on trial counsel’s cursory

investigation, it still fell short of professional

standards. The adequacy of an investigation depends

not only on the “quantum of evidence already known”

but also on whether that evidence “would lead a

reasonable attorney to investigate further.” App. 54–

55 (quoting Wiggins, 539 U.S. at 527). Here, despite

numerous red flags calling for a full-fledged mitigation

inquiry,

counsel

conducted

“essentially

no

investigation beyond [their] investigator’s interviews”

and, “perhaps most consequentially,” failed to “retain

an expert capable of applying their investigator’s

findings”—someone who could take the raw materials

of the investigation and translate them into powerful

scientific testimony about the psychological effects of

Stokes’ traumatic childhood. App. 57. Without an

29

expert to perform that critical role, counsel failed to

make the required “efforts to discover all reasonably

available mitigating evidence.” Id. (quoting Wiggins,

539 U.S. at 524). Indeed, when asked about the failure

to hire an expert, Lominack acknowledged

“embarrassment” at how he handled cases “early in

[his] career” and testified that the omission reflected

his lack of experience and fell short of the professional

“standard of care.” App. 58 (quoting JA2621).

The State’s petition does not address the Fourth

Circuit’s conclusion that PCR counsel’s mitigation

investigation was inadequate, which by itself justifies

the conclusion that PCR counsel provided ineffective

assistance.

2. Even

“[b]eyond

the

investigation’s

shortcomings,” PCR counsel had no good reason for

abandoning a strong mitigation-based ineffectiveness

claim in favor of a bevy of meritless claims. App. 59–

60.

By PCR counsel’s own admission, their

abandonment of the mitigation claim resulted from

“distract[ion],” inexperience, and carelessness rather

than strategic assessment. App. 60; see also, e.g.,

JA2918 (“I don’t recall having a specific reason[.]”);

JA3031 (“[T]o be blunt, I’m not sure we were that

thoughtful about it.”). Counsel admitted that they lost

sight of the mitigation claim because they became

distracted by the “shiny object” of the intellectualdisability claim. JA3259. But nothing stopped them

from pursuing both claims simultaneously, or at least

“revisit[ing]” the mitigation claim after they

abandoned the intellectual-disability claim. JA3262.

Even if PCR counsel’s decision to drop the

mitigation claim in favor of other claims could

30

somehow be construed as strategic, it was objectively

unreasonable because the mitigation claim was

“clearly stronger than issues that counsel did present.”

Smith v. Robbins, 528 U.S. 259, 288 (2000); see

App. 61–62 & n.7. In their final application, PCR

counsel omitted the mitigation claim but raised seven

other claims. JA1760–63. Of those seven claims, four

(including the intellectual-disability claim) were so

weak that counsel later abandoned them without a

ruling, and two more were obviously meritless because

(among other reasons) they faulted appellate counsel

for failing to raise unpreserved issues. App. 62 & n.7.

The weakness of these claims reinforces PCR counsel’s

testimony that they had no strategic reason for

dropping the far stronger mitigation claim.

The State makes little attempt to rebut the

Fourth Circuit’s analysis. Instead, it urges deference

to the district court’s finding that PCR counsel “made

an intentional decision to withdraw the [mitigation]

claim.” Pet. 28. But whether counsel’s decision to

drop the claim was in some sense “intentional” is

irrelevant; the question is whether they made a

reasonable strategic decision based on an adequate

investigation and a proper assessment of the claim’s

merit. As the Fourth Circuit explained, “intentionality

does not guarantee reasonableness.” App. 55.

In any event, deference is warranted only “[i]f the

district court’s account of the evidence is plausible in

light of the record viewed in its entirety.” Anderson v.

City of Bessemer City, 470 U.S. 564, 573–74 (1985)

(emphasis added). Here, the district court “largely

ignored PCR counsel’s testimony” and rested its

determination on a snippet of cross-examination

31

testimony in which PCR counsel agreed that “ ‘there

had to be a reason’ ” they withdrew the mitigation

claim. App. 61 n.6 (quoting JA3840–41). That snippet

cannot remotely bear the weight the district court

placed on it. For one thing, counsel explained exactly

what the “reason” was: they became “unreasonably

hyper-focused on the intellectual-disability claim to

the exclusion of a more general mitigation claim.”

JA2992; see also JA2918, 3259, 3358. For another,

that “reason” did not explain counsel’s failure to

revisit the mitigation claim after the intellectualdisability claim fizzled out, which counsel admitted

was neither intentional nor strategic but inadvertent.

See, e.g., JA2908, 3262. 2

Considering the record as a whole, it is clear that

whatever “reason” PCR counsel may have had for not

pursuing the mitigation claim—whether inattention

or inexperience—was, as PCR counsel put it, not a

“real strategic reason.” App. 61 (quoting JA3031).

3.

Trial Counsel’s

Prejudicial.

Failures

Were

1. The Fourth Circuit correctly acknowledged that

prejudice requires “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different.”

App. 65

The State also suggests that PCR counsel’s decision to

abandon the mitigation claim “demonstrated reasonable

strategy” because their investigation revealed “evidence

detrimental to shifting blame to Martin.” Pet. 29–30 (emphasis

removed). But as discussed above, there is no evidence that trial

counsel’s decision to forgo mitigation stemmed from a blameshifting strategy, and even if there were, that decision would

have been objectively unreasonable. See pp. 26–27, supra.

2

32

(quoting Strickland v. Washington, 466 U.S. 668, 694

(1984)). The Fourth Circuit also correctly applied that

standard to the facts of this case.

The record here easily demonstrates prejudice.

Stokes’ life story contained an abundance of

compelling mitigation evidence, but due to counsel’s

serious errors, the jury heard none of it. As a result,

the jurors heard only aggravating evidence and

“nothing that would humanize [Stokes] or allow them

to accurately gauge his moral culpability.” Porter, 558

U.S. at 41.

Even then, the jury apparently

contemplated sparing Stokes’ life, sending the court a

note that asked about the privileges Stokes would

have in prison. JA1405. If trial counsel had presented

a competent mitigation defense, there is at minimum

“a reasonable probability” that “at least one juror”

would have struck a different balance “when

appraising Stokes’ moral culpability and deciding on

death.” App. 72 (quotation marks omitted).

The State suggests that the “callousness” of the

murder Stokes committed “sets this case apart.”

Pet. 32. But callous acts of violence are typical in

death-penalty cases, which are “confined … to a

narrow category of the most serious crimes.” Atkins v.

Virginia, 536 U.S. 304, 319 (2002). The whole point of

social-history mitigation is to explain how trauma,

abuse, and neglect can result in such callousness.

The Fourth Circuit’s analysis was consistent

with—indeed, compelled by—this Court’s precedent.

This Court has repeatedly found prejudice due to

failures to present mitigation evidence in capital

sentencing proceedings, even in cases involving brutal

murders and substantial aggravating evidence. For

33

example, in Rompilla, the defendant stabbed a bar

owner and set him on fire; the jury found (unlike here)

that the murder involved torture; and the defendant

had a history of violent felonies, including rape. 545

U.S. at 377–38, 383. Yet this Court concluded that it

“goes without saying” that counsel’s failure to present

evidence of Rompilla’s troubled childhood was

prejudicial. Id. at 393; see also Wiggins, 539 U.S. at

514 (defendant drowned a 77-year-old woman “in the

bathtub of her ransacked apartment”); Williams, 529

U.S. at 418 (Rehnquist, J., concurring in part and

dissenting in part) (defendant beat a man to death,

“savagely beat an elderly woman,” set fire to a home,

and committed other violent crimes (quotation marks

omitted)). Notably, in Williams the Court found

prejudice even while applying AEDPA deference,

which is “not in operation when,” as here, “the case

involves review under the Strickland standard itself.”

Harrington v. Richter, 562 U.S. 86, 101 (2011).

2. The State purports to identify three specific

errors in the Fourth Circuit’s prejudice analysis. Each

of the State’s arguments is meritless.

First, the State contends that the Fourth Circuit

“misconstru[ed]” South Carolina law on what

aggravating evidence may be considered by the jury.

Pet. 32–35. But this Court’s “custom on questions of

state law” is “to defer to the interpretation of” the

regional court of appeals. Elk Grove Unified Sch. Dist.

v. Newdow, 542 U.S. 1, 16 (2004). There is no reason

to depart from that custom here, where the State’s

argument is devoted entirely to a single footnote in the

Fourth Circuit’s decision. See App. 72 n.10.

34

Moreover, the State mischaracterizes the

footnote. The Fourth Circuit did not announce any

holding about South Carolina law. Rather, the court

observed that, at the eligibility phase of Stokes’ capital

sentencing, the jury had specifically declined to find

certain aggravating facts the State had sought to

prove—namely, that Stokes tortured Snipes or

murdered Ferguson. As a result, the Fourth Circuit

explained, it was unreasonable for the district court to

assume that the jury had turned around and credited

that same evidence at sentencing. Although the jury

was permitted to consider that evidence, its refusal to

find a charged aggravator reflected a weakness in the

prosecution’s case.

In any event, the Fourth Circuit’s prejudice

analysis did not turn on that point. Even without the

aggravators the jury rejected, the court readily

acknowledged that “the State’s aggravation case was

extensive” and that Stokes’ crime included “horrific

elements.” App. 72–73 & n.10 (quotation marks

omitted). Yet the court also recognized “the likely

influence of dramatic mitigation evidence on a jury

that heard dramatically little about the defendant.”

App. 75. That unusually strong mitigation evidence,

the court concluded, was “enough to outweigh even the

upsetting and extensive aggravating evidence.” Id.

(citing Wiggins, 539 U.S. at 537).

Second, the State argues that any mitigating

evidence in this case would have been double-edged.

Pet. 36–37. For one thing, the State says, discussing

Stokes’ background would have “allow[ed] the

evidence of [his] domination and abuse of Martin” to

undermine a supposed defense strategy to shift

35

responsibility for the crime to Martin. Pet. 36. As

discussed above, however, the argument is meritless.

The mitigation evidence would not have opened the

door to harmful testimony about Stokes’ relationship

with Martin because (1) the State could have elicited

that testimony anyway, and (2) any impact of such

testimony would have been minimal. See pp. 26–27,

supra.

The State also contends that evidence about

Stokes’ traumatic childhood would have suggested

that Stokes was unusually “likely to commit violent

acts.” Pet. 36. Of course, mitigation evidence offered

to explain a defendant’s criminality also has the

potential

to

underscore

the

defendant’s

dangerousness. Yet this Court has repeatedly found

prejudice from counsel’s failure to develop and present

such evidence. And here, the jury heard plenty of

other evidence of Stokes’ dangerousness; what it did

not hear was any evidence that could explain Stokes’

violent behavior.

Third, the State claims that the Fourth Circuit

“diminished Stokes’ burden of proving prejudice.”

Pet. 37. The court did no such thing. As noted above,

the Fourth Circuit stated the well-established

standards for evaluating Strickland prejudice.

Ignoring all that, the State selectively quotes a single

sentence in which the court noted that “[t]he addition

of just some meaningful mitigating evidence could be

enough to sway one juror against death.” App. 73.

But as the opinion makes clear, the court did not

assume that just any mitigating evidence would

suffice. Rather, as this Court’s precedent commands,

the panel carefully considered whether the compelling

36

evidence here had a “reasonable probability” of

swaying at least one juror to spare Stokes’ life.

App. 71–72, 75–76 (quoting Strickland, 466 U.S. at

694).

CONCLUSION

The Court should deny the petition for certiorari.

Respectfully submitted,

Diana L. Holt

DIANA HOLT, LLC

P.O. Box 6454

Columbia, SC 29260

(803) 782-1663

Ashley C. Parrish

Paul Alessio Mezzina

Counsel of Record

Alexander Kazam

Edward Benoit

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

pmezzina@kslaw.com

Counsel for Respondent

September 7, 2023