Opposition Brief — Lydell Chestnut, Deputy Warden, Petitioner v. Quincy J. Allen

No. 22-490

IN THE SUPREME COURT OF THE UNITED STATES

____________________________________

LYDELL CHESTNUT, Deputy Warden,

Petitioner

v.

QUINCY J. ALLEN,

Respondent

____________________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

____________________________________

BRIEF FOR RESPONDENT IN OPPOSITION

____________________________________

Joshua Snow Kendrick

Kendrick & Leonard, P.C.

P.O. Box 6938

Greenville, South Carolina 29606

(864) 760-4000

josh@kendrickleonard.com

E. Charles Grose, Jr.

Grose Law Firm

305 Main Street

Greenwood, South Carolina 29646

(864) 538-4466

charles@groselawfirm.com

Aren Adjoian

Counsel of Record

Federal Community Defender Office

for the Eastern District of Pennsylvania

Curtis Center, Suite 545-West

601 Walnut Street

Philadelphia, PA 19106

(215) 928-0520

aren_adjoian@fd.org

CAPITAL CASE

QUESTION PRESENTED

At Quincy Allen’s bench capital sentencing hearing, the trial judge had

“abundant evidence before him of Petitioner’s horrible, abusive childhood” and about

his “erratic behaviors, psychiatric admissions, suicide attempts, mental illness risk

factors, and his mental status leading up to the murders.” JA42, 65. Some of the

evidence of Mr. Allen’s lifelong history of mental illness and virtually all of the

evidence of Mr. Allen’s history of childhood abuse was undisputed.

The trial judge nonetheless found zero mitigating circumstances; he later

stated that evidence could be considered mitigating only if it established “that Mr.

Allen was so mentally ill throughout the time of his crimes and was so mentally ill at

the time of trial, that imposition of the death penalty would violate the Eighth

Amendment’s ban on cruel and unusual punishment.” JA2009.

Applying the Antiterrorism and Effective Death Penalty Act’s standard of

review, the Fourth Circuit held that the state court’s ruling that the trial judge

properly considered Mr. Allen’s mitigating evidence was unreasonable. Under the

trial judge’s analysis, “[m]itigators that fall short of proving insanity or incompetency

stand no chance of sparing the defendant’s life and any aggravators would not matter:

The defendant must die essentially as a categorical matter.” App. 64. The State now

claims that the lower court faulted the trial judge because he “did not explicitly

reference Allen’s eating disorder.” Pet. i. The question presented is:

Should the Court grant Petitioner’s request for error correction where

his question presented mischaracterizes and fails to fairly include the

basis for the lower court’s correct decision?

i

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

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

STATEMENT ................................................................................................................. 1

A. Introduction .............................................................................................. 1

B. Factual Background ................................................................................. 2

C. Procedural History ................................................................................. 14

REASONS TO DENY CERTIORARI .......................................................................... 16

I. The State’s Petition Presents Only A Narrow, Fact-Centered, RecordSpecific Issue of No General Applicability and Is, in Addition, Based On

Two False Premises. ............................................................................................... 16

A. The State Seeks Pure Error Correction................................................. 17

B. The Fourth Circuit Did Not Grant Habeas Relief because the

Trial Judge “Did not Explicitly Reference Allen’s Eating

Disorder.” Pet. i. ..................................................................................... 18

C. The Trial Judge Did Not Merely Give Mr. Allen’s Mitigating

Evidence Little Weight........................................................................... 19

II. The Fourth Circuit Knows How to Apply AEDPA and Properly Did so in

this Case. ................................................................................................................ 20

A. The Fourth Circuit Properly Applied 28 U.S.C. § 2254(e)(1). .............. 21

B. The Fourth Circuit Did Not Fail to Presume that State Court

Judges Know and Follow Federal Law.................................................. 22

C. The Fourth Circuit Did Not Misunderstand this Court’s

Precedents Regarding Consideration of Mitigating Evidence. ............. 23

D. The State Inaccurately Describes South Carolina Law........................ 25

E. The Fourth Circuit Did Not Misread the State Court Record. ............. 26

III. The State Incorrectly Suggests the Claim at Issue Arises Under the Sixth

Amendment. ........................................................................................................... 26

CONCLUSION............................................................................................................. 28

ii

TABLE OF AUTHORITIES

Federal Cases

Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007)..................................................... 23

Ake v. Oklahoma, 470 U.S. 68 (1985) ........................................................................ 12

Atkins v. Virginia, 536 U.S. 304 (2002) ..................................................................... 12

Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) ................................................. 23

Brecht v. Abrahamson, 507 U.S. 619 (1993).............................................................. 28

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) ....................................... 17

California v. Brown, 479 U.S. 538 (1987) .................................................................. 17

Cullen v. Pinholster, 563 U.S. 170 (2011).................................................................. 22

Eddings v. Oklahoma, 455 U.S. 104 (1982) ................................................... 21, 23, 24

Ford v. Wainwright, 477 U.S. 399 (1986) .................................................................. 13

Gray v. Zook, 806 F.3d 783 (4th Cir. 2015)................................................................ 18

Hitchcock v. Dugger, 481 U.S. 393 (1987) ................................................................. 24

Lockett v. Ohio, 438 U.S. 586 (1978).................................................................... 15, 17

Martin v. Blessing, 571 U.S. 1040 (2013) .................................................................. 17

Roper v. Simmons, 543 U.S. 551 (2005) ..................................................................... 12

Tennard v. Dretke, 542 U.S. 274 (2004) .................................................................... 21

Tolan v. Cotton, 572 U.S. 650 (2014) ......................................................................... 17

United States v. Tsarnaev, 142 S. Ct. 1024 (2022) ................................................... 17

Virginia v. LeBlanc, 582 U.S. 91 (2017)................................................................. 2, 20

Federal Statutes

28 U.S.C. § 2254 ..................................................................................... 2,17, 20, 21, 22

State Cases

Singleton v. State, 437 S.E. 2d 53 (S.C. 1993) ........................................................... 13

State v. Allen, 687 S.E.2d 21 (S.C. 2009) ........................................................... 2, 3, 14

State v. Bell, 360 S.E.2d 706 (S.C. 1987) .............................................................. 25-26

State Statutes

S.C. Code Ann. § 16-3-20 ............................................................................................. 3

iii

Rules

Fed. R. App. P. 41 ....................................................................................................... 16

S. Ct. R. 10 .............................................................................................................. 1, 17

S. Ct. R. 14 .............................................................................................................. 2, 17

iv

STATEMENT

A.

Introduction

The State’s petition satisfies none of this Court’s traditional factors governing

the grant of certiorari, and the State does not argue otherwise. See S. Ct. R. 10.

Instead, the State’s primary request is for summary reversal based on what it

contends are factual errors and the misapplication of properly stated rules of law. See

Pet. 41. In making this request, the State has mischaracterized the Fourth Circuit’s

opinion to such a degree that its question presented fails to fairly include the basis

for the lower court’s correct ruling. The State does not even recognize that this case

properly involves a substantive Eighth Amendment claim, rather than a derivative

claim of ineffective assistance of counsel under the Sixth Amendment.

The Fourth Circuit did not, under any fair reading of its opinion, hold that Mr.

Allen’s Eighth Amendment right to have his mitigating evidence considered was

violated because the sentencer “did not explicitly reference Allen’s eating disorder.”

Pet. i. The trial judge instead repeatedly and explicitly made clear that he considered

the entirety of Mr. Allen’s case in mitigation only to determine whether it proved that

Mr. Allen was insane at the time of the offense or incompetent to be tried and/or

executed. As a result, the trial judge gave no consideration to any of Mr. Allen’s

mitigating evidence—insanity and competence to stand trial ceased to be at issue the

moment Mr. Allen pleaded guilty and incompetence to be executed would not ripen

into a cognizable question, if ever, until years after the trial judge’s sentencing

decision was made. The State simply ignores these facts. The petition’s failure “to

1

present with accuracy, brevity, and clarity” the facts and issues necessary to resolve

this case is reason alone for the Court to deny certiorari. S. Ct. R. 14.4.

The Fourth Circuit is well aware of how to apply AEDPA and correctly did so

in this case. The Fourth Circuit correctly held that the State courts’ denial of relief

“was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.”

App. 43 (quoting Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) (per curiam)). The state

court decision was also based on an unreasonable determination of the facts in light

of the state court record. See 28 U.S.C. § 2254(d)(2). Certiorari should be denied.

B.

Factual Background

Mr. Allen is incarcerated on South Carolina’s death row as a result of

convictions for two counts of murder, one count of assault and battery with intent to

kill, one count of arson in the second degree, two counts of arson in the third degree,

and one count of pointing and presenting a firearm. State v. Allen, 687 S.E.2d 21, 22

(S.C. 2009). He is separately serving a North Carolina sentence of life without parole

on two counts of first-degree murder and related charges. See id. n.2.

Mr. Allen’s convictions stem from an extended crime spree in July and August

2002, during which he killed Dale Hall and Jedediah Harr in Richland County, South

Carolina, and Richard Hawks and Robert Roush in Surry County, North Carolina.

Mr. Allen also committed several additional crimes. He shot and wounded James

White, pointed a shotgun at Bucky Michon, and set fire to a house and two cars,

among other offenses. He was arrested in Texas following a police chase and

immediately confessed to law enforcement officers. See id. at 22–23.

2

In North Carolina, Mr. Allen entered a negotiated plea of guilty to two counts

of first-degree murder, two counts of armed robbery, and one count of larceny of an

automobile in exchange for a sentence of life in prison without the possibility of

parole. Although the North Carolina sentence had been agreed upon, both the State

and the defense called multiple witnesses at Mr. Allen’s three-day sentencing

hearing. Mr. Allen was sentenced to life without parole for the murders of Mr. Roush

and Mr. Hawks and terms of years on the remaining charges. See JA113–15. 1 The

North Carolina trial court found by convincing evidence that Mr. Allen was mentally

ill and recommended he receive a psychiatric evaluation, counseling, and treatment

upon entering the Department of Corrections. JA115; JA117.

Mr. Allen also pleaded guilty to his South Carolina charges. Allen, 687 S.E.2d

at 22. The South Carolina plea was not made pursuant to a negotiated agreement

with the prosecution, however. By pleading guilty, Mr. Allen waived his right to a

jury determination of sentence under South Carolina law, and a lengthy sentencing

hearing before the trial judge ensued. See S.C. Code Ann. § 16-3-20(B) (capital

sentencing must be conducted before the judge following a guilty plea).

At the sentencing hearing, the defense presented considerable evidence about

Mr. Allen’s background through lay witnesses and also through social worker

Deborah Grey. Ms. Grey testified that Mr. Allen was born following an unplanned

1 The Joint Appendix filed in the Fourth Circuit is cited as JA___.

3

pregnancy for his parents, whose relationship lasted for only a short time. JA283. Mr.

Allen’s mother “looked on [him] as a liability.” JA284.

When Mr. Allen was nineteen months old, his mother was referred to

protective services due to her repeated failure to obtain medication for Mr. Allen for

a fever that reached as high as 106 degrees. JA288–89; JA1730. Hospital staff noted

in Mr. Allen’s medical records that “mother appears unconcerned” about her son’s

fever, that she “has not had prescription filled or given aspirin because she had other

things on her mind,” and “is hostile and shows no affection for the child.” JA288–89.

Soon thereafter, Mr. Allen’s mother married Gralin Manning, who violently

abused Mr. Allen and his mother. Mr. Manning once broke Mr. Allen’s leg and

another time sent Mr. Allen’s mother to the emergency room for sutures. JA290–92;

JA1865. When Mr. Allen was six years old, his mother “beat him, and then she put

him into the trashcan, the big kind with the wheels on it, and slammed the lid shut

on it.” JA296. Per Ms. Grey, “[t]hat seemed to have made an impression on Quincy

because he had seen the garbage trucks drive by and pick those cans up and dump

the garbage directly into the garbage vehicle; seemed to have left him feeling afraid.”

Id.

Mr. Allen’s mother continued to abuse him throughout elementary school. She

beat him with sticks and belts in a locked room. Id. She withheld food as a means of

punishment, “sometimes for extended periods of time.” JA296–97. She left Mr. Allen

to watch his younger siblings when he was as young as seven years old. JA297–98. A

4

neighbor once observed Mr. Allen and his younger siblings drinking rainwater out of

the gutter during this timeframe. JA299.

When Mr. Allen was in third grade, his mother would tie his arms to the ends

of his bunk bed with extension cords, “kind of like Jesus,” and “would whip him either

with sticks or belts or whatever. She would leave him hanging there and then come

back and do it some more.” JA302–03. This “didn’t happen just once; it happened a

lot.” Id. In fifth grade, Mr. Allen’s mother beat him for an extended period of time,

threw him in the closet so that she could rest, and then pulled him back out and “beat

him continuously for a long period of time until finally when she was done she threw

him in the bathroom where he slept on the floor that night.” JA310–11.

Mr. Allen was bullied for his appearance and hygiene in elementary school.

This “continued through the years” and “got worse over time.” JA309. His siblings

and his mother “similarly would tease him and taunt him and call him names based

largely on his appearance and his intellect.” Id.

As Mr. Allen grew during his middle school years, his mother began to

discipline him by having him “strip down and take off all of his clothes and hold onto

a chair back in his underpants while she would whip him.” JA311–12. She also

started locking him out of the house. She would “just tell him go out. Or he would go

outside and when he’d come back the door would be locked.” JA312. This could be

while Mr. Allen was “wearing any type of clothing, any time of year, without a coat if

it’s the winter.” Id. The exclusions from the home would “occasionally include being

5

locked out to sleep on the porch overnight,” where Mr. Allen feared being attacked by

neighborhood dogs while he slept. Id.

In seventh grade, Mr. Allen was adjudicated delinquent for bringing a knife to

school. JA313–14. He was sent to the South Carolina Reception and Evaluation

Center, where he saw a social worker to whom he reported that his mother had:

thrown a chair at him, violently shoved him against a stove, tried to hit

him with a hammer, choked him with his tie until he fainted, made him

stay out all night without proper clothing with the temperature in the

low 40s, and that she punched him in the mouth the day that they went

to court.

JA314–15; see also JA1842; JA1848.

The beatings, exclusion from the home, nights spent sleeping in the bathroom,

and withholding of food continued into Mr. Allen’s high school years. JA323; JA328.

Over the course of Mr. Allen’s childhood he was, at various points, placed in foster

care (JA301–02; JA1840); twice sent to live with his uncle in Rock Hill, South

Carolina (JA317–18; JA330–31; JA1896–98; JA1905); sent to live with his father in

Stone Mountain, Georgia (JA319); sent to live with his father a second time in Aurora,

Colorado (JA325–26); and homeless for a period of time (JA346–47). He was kicked

out of his home by his mother on Christmas Eve in 1997, a night on which “it was

freezing cold, bitter cold.” JA992. That night, he slept in the playground of a

McDonald’s restaurant. JA974–75.

As a high school student, Mr. Allen was lonely and had poor social skills.

JA232–33. He also had very poor hygiene; one of his teachers once observed that “his

clothes were crumpley [sic] and he smelled worse than I’ve ever smelled any other

6

human being in my life.” JA234. In high school, those few people who were close to

Mr. Allen started to notice changes in his behavior. He went from being cheerful to

sulking a lot. JA977. He began to mumble to himself. JA977–78. And he began to do

bizarre things, like burn a smiley face in a neighbor’s lawn with chemicals. JA978–

79.

The defense also presented substantial testimony and documentary evidence

regarding Mr. Allen’s mental health problems. Ms. Grey testified that “for many

years, maybe even dating back to early childhood, [Mr. Allen] has been regurgitating

stomach contents into his mouth and then swallowing them, perhaps many times a

day.” JA335. A child psychiatrist who treated Mr. Allen as a teenager, Dr. Richard

Harding, testified about this disorder in greater detail. Known as rumination, this

uncommon disorder is usually a form of self-comfort. JA541. For someone who is

“anxious, agitated, fearful and so forth, this mechanism of bringing up food, sloshing

it around, so to speak, in their mouth, chewing and re-swallowing is a way of keeping

control on emotions, a calming kind of activity that is effective for the people who do

it.” JA541–42. Mr. Allen was referred to Dr. Harding for treatment of his rumination

by a dentist who had noticed his teeth were severely eroded from gastric acid. JA335;

JA542–43; JA1838; JA1915.

Ms. Grey testified based on voluminous records about how Mr. Allen was

committed for inpatient psychiatric hospitalizations on six separate occasions as a

teenager. His first commitment came shortly before his eighteenth birthday after his

mother kicked him out of the house and then called the police when he returned and

7

locked her out of the house. The police found him in the attic eating insulation. JA339.

He was transported to the emergency room and then referred to an inpatient

psychiatric facility. JA339–41.

He was readmitted to a psychiatric hospital about a week later, after ingesting

Tylenol in a Wal-Mart. JA343. When he was first transported to the emergency room,

hospital staff contacted his mother, who refused to come to see him. JA268. While he

was initially involuntarily committed to the psychiatric hospital, he voluntarily

extended his commitment on his eighteenth birthday. JA267–68. He was ultimately

“discharged from the hospital with a taxi voucher that basically sent him home,

despite the fact that they were aware that his mother would not take him home.”

JA269. He became homeless at that point. Id.

Mr. Allen’s third psychiatric hospitalization occurred after he was observed on

the maintenance platform of a road sign over the interstate. JA349. Emergency

personnel got him down from the platform using a cherry picker; once inside the

basket, Mr. Allen refused to exit because he was “comfortable in it.” JA349–50. He

was taken to the emergency room in the basket and was again committed. JA350.

Mr. Allen’s fourth commitment occurred a few months later when he brought

himself to the hospital, stating that he was at risk for self-harm and very depressed.

JA359–60. During this hospitalization, he threatened staff members, was hostile and

agitated, and received the antipsychotic medication Haldol and the antianxiety

medication Ativan. JA361–62. A social worker contacted Mr. Allen’s mother who

8

“requested she not be contacted again and that she [did] not want to be involved and

that the patient could not come to live with her.” JA362.

Mr. Allen was hospitalized a fifth time in September 1998. At the time, Mr.

Allen was again homeless. JA363. After finishing his shift at a Kroger grocery store,

Mr. Allen was waiting in the video section of the store for a ride. Id. The store

manager, thinking Mr. Allen was homeless, told him to leave. Id. Upon learning that

Mr. Allen actually worked there, the manager fired him. JA363–64. Later that night,

Mr. Allen was found on top of the store threatening to jump. JA364. The Sheriff’s

Department called his mother; when she arrived, Mr. Allen used foul language

towards her and she “seemed to be amused and walked away.” Id. He was again

committed. Mr. Allen was extremely agitated during this visit and expressed a desire

to be a mass murderer and harm his mother. JA374–75; JA378.

Mr. Allen was discharged from this hospital to a different facility, marking his

sixth commitment. At the new facility, staff noted his disheveled appearance, and he

admitted having visual hallucinations. JA381; JA384. He expressed both suicidal and

homicidal thoughts. JA390–91.

After being discharged from this final stay, Mr. Allen was yet again homeless.

JA399. Within a matter of days, he was arrested for attempting to steal a car from

someone’s garage, for which he was convicted and incarcerated. JA399, 402–03.

During this period of incarceration, his chronic suicidal and homicidal thoughts

coincided with more serious suicide attempts. He initially attempted to ingest soap

while he was awaiting trial in the Richland County Detention Center. JA401. The

9

attempts continued when he moved to the Department of Corrections. Mr. Allen first

unsuccessfully attempted to swallow hoarded bleach. JA406. He later attempted to

overdose on the antidepressant Zoloft, which he also had been hoarding. JA406–07.

After his release, Mr. Allen returned to live with his mother, enrolled at

Midlands Technical College, and began to work a series of jobs through a personnel

agency. JA407. Mr. Allen did relatively well for a period of time, until his mother once

again threw him out of her house. JA407–09. Mr. Allen then quit his job and became

“intensely suicidal.” JA409. He again attempted suicide by swallowing ammonia

capsules and several Excedrin. JA411. He later swallowed a box of rat poison. Id.

The defense also presented several mental health experts. Forensic

psychiatrist George Corvin testified that Mr. Allen suffers from schizophrenia, and

that “his upbringing caused the expression of his schizophrenia to become

dangerous.” JA662. Dr. Corvin explained that he “strongly” considered the possibility

that Mr. Allen was malingering but concluded that he was not. JA635; JA640.

Forensic psychiatrist Pamela Crawford likewise diagnosed Mr. Allen as

schizophrenic. JA757. Dr. Crawford met with Mr. Allen six times in the year leading

up to trial, including on the day he pleaded guilty and twice in the week between the

guilty plea and the beginning of trial. Id. She “absolutely” considered whether Mr.

Allen was malingering, JA792, and likewise explained why she concluded he was not.

JA792–93; JA803–05; JA832–34; JA837–43.

10

During Dr. Crawford’s testimony, the trial judge provided the first of many

indications that he was considering Mr. Allen’s mitigating evidence solely to

determine whether it proved that Mr. Allen was mentally ill at the time of the crime:

[State’s counsel]:

Your Honor, he pled guilty. It’s not even an issue of

whether he’s mentally ill or not. I don’t know how

that comes in.

The Court:

Well, there is a significant issue about mental

illness.

[State’s counsel]:

Not at the time of the crime. Respectfully. We object

to hearsay.

The Court:

I think that’s the ultimate decision in this case.

JA800.

Finally, forensic psychiatrist Donna Schwartz-Watts testified that she

evaluated Mr. Allen and diagnosed him with schizophrenia as well. JA1021–22. She

noted that he was on “the highest dose of [the antipsychotic medication] Prolixin

Decanoate I’ve ever seen in anybody” and on “the maximum dose of [the antipsychotic

medication] Geodon.” JA1047.

The State called five mental health experts in rebuttal. These experts

primarily opined that Mr. Allen was malingering and did not suffer from a

schizophrenic spectrum disorder. But prosecution psychiatrist Dr. Karla deBeck

agreed that Mr. Allen suffered “significant” and “horrific” child abuse and that such

abuse can impact brain development. JA1352-53; see also JA2173 (finding of courtordered psychiatric evaluator Dr. Richard Frierson during PCR proceedings that Mr.

Allen has a “significant childhood history of abuse and neglect”). And prosecution

11

psychiatrists James Ballenger and Majonna Mirza each discussed the medications

Mr. Allen was taking. Dr. Ballenger noted that in 2004, Mr. Allen was “on mountains

of antipsychotic medicines at this point which is hard to take and to be very

interactive with the rest of the world.” JA1125.

At the conclusion of the sentencing hearing, the trial judge sentenced Mr. Allen

to death. App. 222. Although he briefly mentioned at the beginning of his sentencing

order that he considered a number of factors in rendering the sentence, he

immediately made clear that he did so only to determine whether Mr. Allen was

insane or incompetent. He asserted that “Mr. Allen raises the issue of mental illness

as his reason for avoiding the death penalty,” ignoring that much of the evidence and

argument in support of a life sentence pertained to Mr. Allen’s history of abuse and

neglect. App. 210. He then engaged in an extended discussion about Mr. Allen’s

mental state at the time of the crimes and at trial. App. 210–13. He concluded this

discussion by observing that the “fact finder must resolve differences in opinion

within the psychiatric profession ‘on the basis of the evidence offered by each party’

when a defendant’s sanity is at issue in a criminal trial.” App. 213 (quoting Ake v.

Oklahoma, 470 U.S. 68, 81 (1985)).

The trial judge then reviewed what he termed “the current state of death

penalty law as pronounced by the United States Supreme Court.” Id. In conducting

this review, he mentioned only three cases: Atkins v. Virginia, 536 U.S. 304, 321

(2002), which held that the Eighth Amendment prohibits the execution of

intellectually disabled individuals; Roper v. Simmons, 543 U.S. 551, 578–79 (2005),

12

which held that the Eighth Amendment prohibits the execution of juveniles; and Ford

v. Wainwright, 477 U.S. 399, 401 (1986), which held that the Eighth Amendment

prohibits the execution of individuals who are insane at the time of execution. App.

213–16. All three of these cases involve categorical bars to death penalty eligibility

that were obviously inapplicable to Mr. Allen’s case.

The trial judge next spent time comparing the insanity standard set forth in

Justice Powell’s concurring opinion in Ford with South Carolina’s standard and the

American Bar Association’s model standard. App. 216–17 (noting that South Carolina

maintains a two-prong test for competency to be executed set forth in Singleton v.

State, 437 S.E. 2d 53, 58 (S.C. 1993)). He explained that “in light of the lack of the

guiding principles dealing with the imposition of the death penalty on persons with

mental illnesses, the Court can only look to the Singleton principles as a guide.” App.

217. And he then announced that he had “seen nothing in the course of this trial to

convince [him] that the defendant cannot meet this [two]-prong test.” Id.

The trial court next engaged in a discussion of the brutal nature of Mr. Allen’s

crimes alongside a philosophical discussion about fate. App. 218–20. He concluded by

stating that he considered “all relevant facts and circumstances,” including the

“existence of” unspecified statutory aggravating circumstances and the “claim of”

mitigating circumstances. App. 222.

Two weeks after the sentencing, the trial judge submitted a document entitled

“Report of the Trial Judge” to the South Carolina Supreme Court. JA1935–48. In it,

he made clear that he had found several aggravating factors, but that “[c]onclusive

13

proof of mitigating circumstances was not found. Numerous psychiatrists and

psychologists testified to conflicting diagnoses of the Defendant’s mental health.”

JA1940–43. He did not include any mention of Mr. Allen’s severe history of childhood

abuse, even though it constituted a significant portion of the defense presentation

and despite defense counsel having argued the significance of the life-history evidence

at length during closing argument. JA1586–95; see also JA1597 (“[T]his all by itself

is a reason to sentence Mr. Allen to life. His childhood and background by itself is

mitigating in the extreme, and it’s undisputed. That’s a reason for life.”).

Several months later, spurred by an allegation in an affidavit from defense

counsel that the trial judge had made a promise to sentence Mr. Allen to life in

exchange for his guilty plea during an ex parte meeting immediately before the

scheduled start of voir dire, the trial judge produced an (unsolicited) affidavit of his

own. While primarily addressed to the issue of the alleged pre-trial promise, the trial

judge’s affidavit expressly reaffirmed what by that point was clear: to render a life

sentence, he would have had to be convinced “that Mr. Allen was so mentally ill

throughout the time of his crimes and was so mentally ill at the time of trial, that

imposition of the death penalty would violate the Eighth Amendment’s ban on cruel

and unusual punishment.” JA2009.

C.

Procedural History

Mr. Allen appealed his death sentence to the South Carolina Supreme Court,

which affirmed his convictions and sentences. Allen, 687 S.E.2d 21, 26, cert. denied

Allen v. South Carolina, 560 U.S. 929 (2010). Mr. Allen next filed a state petition for

post-conviction relief. In it, he alleged that his attorneys were ineffective for failing

14

to object to the trial judge’s failure to properly consider his mitigating evidence, as

required by Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion), and its

progeny. The PCR court denied relief on all claims, JA2530–89, and the South

Carolina Supreme Court summarily denied relief on appeal, JA2642.

Mr. Allen next filed a federal habeas petition. JA2643–2750 (amended

petition). He raised the Lockett claim at issue here as both an Eighth Amendment

claim and a related Sixth Amendment ineffective assistance of counsel claim.

JA2685–97. The State opposed relief but conceded that the claim in its entirety is

“available for review because the substance of those allegations have been presented

to and passed upon by the [State] circuit and appellate courts with substantially the

same factual basis and legal arguments Petitioner presents” in federal court. D.S.C.

ECF No. 50 at 25 (State’s Return and Mem. of Law in Supp. of Mot. for Summ. J.).

The district court denied relief on all of Mr. Allen’s claims but granted a

certificate of appealability as to two. JA95. Mr. Allen appealed and moved to expand

the COA. 4th Cir. ECF No. 4-1. The Fourth Circuit granted Mr. Allen’s motion,

including on the issue presented here. 4th Cir. ECF No. 15 at 1–2.

Following briefing and argument, the Fourth Circuit granted relief on Mr.

Allen’s claim that the trial judge failed to consider virtually all of Mr. Allen’s

mitigating evidence. It analyzed the claim under AEDPA’s standard of review and

concluded that the state court decision denying relief constituted both an

unreasonable determination of the facts in light of the state court record and an

unreasonable application of this Court’s clearly established law. See App. 42–68. It

15

then recognized that its “inquiry [was] not over,” App. 68 (citation omitted), and

determined that the Eighth Amendment error had a substantial and injurious effect

on the outcome. App. 68–71. It reversed and remanded the case to the district court

with instructions to issue a conditional writ of habeas corpus. App. 72.

Judge Allison Jones Rushing dissented. App. 72–87. She opined that Mr. Allen

could not overcome AEDPA’s standard of review. App. 75. She believed the majority

improperly read into this Court’s cases a requirement that a capital sentencer find

and credit offered mitigating evidence. App. 80. And she also believed that the

majority improperly failed to recognize that the trial judge simply did not find any of

Mr. Allen’s evidence to be mitigating. Id.

The State petitioned for rehearing en banc, 4th Cir. ECF No. 60-1, which the

Fourth Circuit denied without any judge requesting a poll. 4th Cir. ECF No. 62. The

State then moved to stay the mandate pending a petition for writ of certiorari, 4th

Cir. ECF No. 63-1, which requires showing that “the petition would present a

substantial question and that there is good cause for a stay.” Fed. R. App. P. 41(d)(1).

The panel denied the motion without noted dissent. 4th Cir. ECF No. 67.

REASONS TO DENY CERTIORARI

I.

THE STATE’S PETITION PRESENTS ONLY A NARROW, FACT-CENTERED, RECORDSPECIFIC ISSUE OF NO GENERAL APPLICABILITY AND IS, IN ADDITION, BASED ON

TWO FALSE PREMISES.

The State’s question presented is both narrow and fact-specific. Resolution of

the question would have no significance to anyone but the parties in this case. The

State points to no misstatement of law made by the Fourth Circuit and seeks pure

error correction. Granting certiorari on such a basis would “very substantially alter

16

the Court’s practice.” Tolan v. Cotton, 572 U.S. 650, 661 (2014) (per curiam) (Alito,

J., concurring in the judgment).

The State’s petition is also based on two false premises: 1) that the Fourth

Circuit granted habeas relief because the sentencing judge failed to mention a single

item of evidence when imposing sentence; and 2) that the sentencing judge committed

no error in the first place because he considered the mitigating evidence but gave it

little weight. Certiorari should be denied for this reason alone. See S. Ct. R. 14.4.

A.

The State Seeks Pure Error Correction.

Unlike “the courts of appeals, [this Court is] not a court of error correction.”

Martin v. Blessing, 571 U.S. 1040, 1045 (2013) (statement of Alito, J., respecting the

denial of certiorari); see also S. Ct. R. 10 (“A petition for a writ of certiorari is rarely

granted when the asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law”). Notwithstanding this Court’s Rules

and practices, the State asks for error correction only. See, e.g., Pet. 23 (introducing

reasons for granting certiorari with paragraphs beginning “As to the facts” and “As

to the application of law”); Pet. 41 (requesting summary reversal or, in the

alternative, plenary review). The Court should refuse the State’s invitation to deviate

from its longstanding and straightforward practice of refusing to intervene in such

circumstances. 2

2 Amicus Criminal Justice Legal Foundation’s suggestion that Mr. Allen’s case is

an apt vehicle for reconsideration of Lockett—together, presumably with the other

precedents of this Court that require capital sentencers to give “a reasoned moral

response to the defendant’s background, character, and crime,” California v. Brown,

479 U.S. 538, 545 (1987) (O’Connor, J., concurring) (emphasis in original)—

17

B.

The Fourth Circuit Did Not Grant Habeas Relief because the Trial

Judge “Did not Explicitly Reference Allen’s Eating Disorder.” Pet. i.

The Fourth Circuit did not grant habeas relief due to the trial judge’s failure

to mention Mr. Allen’s rumination disorder or any other item of evidence. It expressly

and repeatedly rejected the idea that a mitigating circumstance must be mentioned

to be considered. App. 54 (“[O]f course, that a sentencing order does not refer to some

mitigating factors does not mean that such evidence was not considered.”); App. 56–

57 (“Of course, ‘a state court need not refer specifically to each piece of a petitioner’s

evidence to avoid the accusation that it unreasonably ignored the evidence’”) (quoting

Gray v. Zook, 806 F.3d 783, 791 (4th Cir. 2015)).

Nor did the lower court restrict its focus to the exclusion of Mr. Allen’s

rumination disorder. The Fourth Circuit granted habeas relief because “it is clear

that the sentencing judge considered Allen’s disputed schizophrenia diagnosis only

and paid no mind to the several uncontroverted mitigators.” App. 56. In addition to

disregards the obvious. The State’s submissions to this Court and every court before

it not only failed to put anyone on notice that the viability of Lockett was at issue in

this case; they affirmatively embraced as settled law the requirement of

individualized capital sentencing set forth in Lockett and its progeny. See, e.g., Pet.

16 n.5 (“Sentencing focus always remains on the defendant’s character and crime.”)

(citing United States v. Tsarnaev, 142 S. Ct. 1024, 1043 (2022), and Lockett, 438 U.S.

at 604); 4th Cir. ECF No. 8-1 at 11 (Opp. to COA) (“It has long been the law that ‘a

statute that prevents the sentencer in all capital cases from giving independent

mitigating weight to aspects of the defendant’s character and record and to

circumstances of the offense’ offends the Eight [sic] and Fourteenth Amendments.”

(quoting Lockett, 438 U.S. at 605); 4th Cir. ECF No. 35-1 at 45 (Br. Appellee) (same).

The State’s argument has been and remains that Mr. Allen cannot satisfy 28 U.S.C.

§§ 2254 (d) and (e). This Court does “not generally entertain arguments that were not

raised below and are not advanced in this Court by any party.” Burwell v. Hobby

Lobby Stores, Inc., 573 U.S. 682, 721 (2014).

18

rumination disorder, the unconsidered evidence included the entirety of Mr. Allen’s

history of childhood abuse, homelessness, suicide attempts, and inpatient psychiatric

hospitalizations while in high school, among other things. See App. 70 (“Beyond

overlooking the fact that Allen does, in fact, have a serious mental illness uncontested

by any psychiatrist testimony, the sentencing judge also failed to consider another

major component of Allen’s mitigation case—his history of childhood abuse.”). The

State’s question presented is so misleading and flawed that it does not incorporate

the actual basis for the Fourth Circuit’s ruling.

C.

The Trial Judge Did Not Merely Give Mr. Allen’s Mitigating Evidence

Little Weight.

The second false premise upon which the petition is based is the notion that

the trial judge considered Mr. Allen’s mitigating evidence but merely assigned it little

or no weight. The PCR court’s opinion denying relief on this claim is entirely

dependent on that idea. See App. 301 (finding that the sentencing “order expresses a

conclusion that Judge Cooper did not give the evidence of mental illness the weight

that Applicant wanted him to give”). The State’s argument depends on the same

premise. See Pet. 33 (“No weight is ever necessary—that is for the sentencer to

determine”) (emphasis in original).

The notion that the trial judge assigned all of Mr. Allen’s mitigating evidence

little or no weight is simply not true. Neither the State, nor the PCR court, nor the

dissenting opinion below has ever pointed to anything resembling a statement to this

effect on the part of the trial judge throughout the entire history of this litigation.

19

The State’s argument instead “requires re-writing the sentencing judge’s own

explanation of the sentence.” App. 61.

II.

THE FOURTH CIRCUIT KNOWS HOW TO APPLY AEDPA AND PROPERLY DID SO IN

THIS CASE.

The Fourth Circuit began its analysis of Mr. Allen’s claim with an extended

discussion of AEDPA’s demanding standard of review and a recital of the relevant

clearly established law of this Court. App. 42–49. The State does not identify a single

misstatement of law as to either topic; it instead merely offers a series of

miscellaneous, disconnected complaints that the Fourth Circuit misapplied AEDPA

and this Court’s precedents. As discussed below, the State is wrong. Regardless, its

request for summary reversal when it has not identified a single legal error is

meritless.

The Fourth Circuit is well-aware of the limits AEDPA places on habeas

petitioners. It explained that “[i]n order for a state court’s decision to be an

unreasonable application of [the Supreme] Court’s case law, the ruling must be

objectively unreasonable, not merely wrong; even clear error will not suffice.” App. 43

(quoting LeBlanc, 582 U.S. at 94) (alteration in original). This means “that to obtain

relief, ‘a litigant must show that the state court’s ruling was so lacking in justification

that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.’” Id. (quoting LeBlanc, 582 U.S. at 94).

The Fourth Circuit conducted a detailed examination of the PCR opinion and

state court record before determining that, “[a]lthough § 2254(d)(2) imposes a high

bar for showing an unreasonable determination of the facts, we conclude that Allen

20

cleared it.” App. 56. It then undertook a similarly detailed analysis as to why Mr.

Allen is also able to overcome the bar set out in § 2254(d)(1). App. 60–68.

The trial judge considered Mr. Allen’s mitigating evidence only to determine

whether it proved insanity or incompetence. Lockett “and its progeny are reduced to

a hollow promise if a sentencer—before hearing aggravating or mitigating evidence—

decides that a defendant must surmount the guilt-phase insanity or incompetency

hurdle in the context of the sentencing-phase determination of who shall live and who

shall die.” App. 64 (emphasis in original); see Eddings v. Oklahoma, 455 U.S. 104,

113 (1982) (“From these statements it appears that the Court of Criminal Appeals

also considered only that evidence to be mitigating which would tend to support a

legal excuse from criminal liability”); see also Tennard v. Dretke, 542 U.S. 274, 287

(2004) (rejecting lower court’s holding that evidence was “not relevant mitigating

evidence . . . unless the defendant also establishes a nexus to the crime”). The State’s

contentions about the Fourth Circuit’s application of AEDPA lack merit. See Pet. 25–

37.

A.

The Fourth Circuit Properly Applied 28 U.S.C. § 2254(e)(1).

The State first complains that the Fourth Circuit “directly violated 2254(e)(1)

by shifting the burden to the State to show evidence in the record to convince a federal

court that its fact finding is reasonable.” Pet. 27. In theoretical support of this

contention, the State quotes a passage that begins: “If the record before the state

court shows clearly and convincingly that . . . .” Pet. 28 (quoting App. 49–50). But the

quoted language is not even facially burden-shifting. The Fourth Circuit required Mr.

Allen to overcome the presumption of correctness while limiting its review of evidence

21

to that which was before the state courts. Cf. Cullen v. Pinholster, 563 U.S. 170, 181

(2011) (“We now hold that review under § 2254(d)(1) is limited to the record that was

before the state court that adjudicated the claim on the merits.”). Lest there be any

doubt, the Fourth Circuit also made clear that “[a] state court’s factual

determinations are presumed correct, and the petitioner must rebut this presumption

by clear and convincing evidence[,]” App. 43–44, and that it “f[ound] clear and

convincing evidence” that the trial judge did not properly consider Mr. Allen’s

mitigating evidence. App. 59. The State’s contention that the Fourth Circuit

improperly applied section 2254(e)(1) is not even minimally credible. 3

B.

The Fourth Circuit Did Not Fail to Presume that State Court Judges

Know and Follow Federal Law.

Mr. Allen agrees with the State that federal habeas courts must presume that

state courts know and follow federal law. See Pet. 30–31. Nothing in the Fourth

Circuit’s opinion suggests that it ignored this principle. The Fourth Circuit found that

the PCR court’s denial of this claim was unreasonable under AEDPA only because

the trial judge explicitly and repeatedly made clear that he did not follow federal law.

3 The State also complains that the trial judge’s affidavit was not offered by Mr.

Allen and claims that the PCR court “rejected” it. Pet. 28–30 & n.8. The affidavit was

submitted both on direct appeal and again in PCR proceedings by the State. See

JA2028; JA2583. The fact that the PCR court asserted that it did not consider the

affidavit “[i]n an abundance of caution,” despite 1) noting that it was a part of the

direct appeal record, 2) acknowledging that it was admissible in PCR proceedings,

and 3) discussing and quoting from it extensively, see JA2583–85; JA2583 n.22;

JA2584 n.23; JA2584–85 n.24, is of no moment. Pinholster requires federal courts to

limit their review under 28 U.S.C. § 2254(d)(1) to “the record that was before the state

court that adjudicated the claim on the merits.” 563 U.S. at 181. It does not preclude

them from considering evidence that was in the state court record merely because a

state court chooses to ignore it in its analysis.

22

In other words, it found that Mr. Allen overcame the presumption. Cf. Block v. Cmty.

Nutrition Inst., 467 U.S. 340, 349 (1984) (“The presumption favoring judicial review

of administrative action is just that–a presumption. This presumption, like all

presumptions used in interpreting statutes, may be overcome by specific language or

specific legislative history that is a reliable indicator of congressional intent.”).

C.

The Fourth Circuit Did Not Misunderstand this Court’s Precedents

Regarding Consideration of Mitigating Evidence.

The State argues that the Fourth Circuit opinion “demonstrates a basic

misunderstanding of this Court’s precedent regarding mitigation.” Pet. 32. It

acknowledges that the lower court “correctly quotes” from Abdul-Kabir v.

Quarterman, 550 U.S. 233, 263–64 (2007), that “[s]entencers ‘must be able to give

meaningful consideration and effect to all mitigating evidence’ properly admitted.”

Pet. 32 (quoting App. 47) (internal quotation omitted). But it faults the Fourth Circuit

for purportedly reading into Abdul-Kabir a requirement that offered mitigating

evidence be credited and assigned weight. Pet. 32–33. Not so.

The Fourth Circuit quite explicitly did not do what the State accuses it of doing.

It instead acknowledged that the Eighth Amendment does not require a capital

sentencer to credit any mitigating evidence at all or to assign it any weight: “Yes, a

sentencer may consider mitigating evidence and decide that none of that evidence is

worthy of weight.” App. 60; see also App. 67–68 (“A sentencer can assign little to no

weight to [mitigating] evidence if the sentencer finds it wanting; but a sentencer may

not give it no weight by ignoring or overlooking it.”). Rather, the Fourth Circuit

correctly ruled that the trial court here, in violation of Eddings, refused as a matter

23

of law to consider virtually all of Mr. Allen’s mitigating evidence and the PCR court

unreasonably denied Mr. Allen’s constitutional claim. See App. 68 (“Because

assigning no weight to mitigating evidence based on such barriers violates the

principles established in Lockett, Eddings, and its progeny, Allen’s death sentence

cannot stand.”).

With respect to Mr. Allen’s history of childhood abuse, “it is clear that the trial

judge did not evaluate the evidence in mitigation and find it wanting as a matter of

fact; rather he found that as a matter of law he was unable even to consider the

evidence.” Eddings, 455 U.S. at 113 (emphasis in original). The trial judge conveyed

that he believed Mr. Allen suffered terrible child abuse when he expressed his hope

that Mr. Allen’s death sentence would “make some young mother, single or otherwise,

think about the love and care that children need, no matter how tough the

circumstances, and would deter that mother from making the same horrible choices

made with Quincy Allen.” App. 221. But the trial judge improperly failed to consider

this as a mitigating circumstance because it did not prove Mr. Allen’s insanity or

incompetence. See Hitchcock v. Dugger, 481 U.S. 393, 398–99 (1987) (finding error

under Lockett and its progeny because “the advisory jury was instructed not to

consider, and the sentencing judge refused to consider, evidence of nonstatutory

mitigating circumstances”); Eddings, 455 U.S. at 114–15 (“The sentencer . . . may

determine the weight to be given relevant mitigating evidence. But they may not give

it no weight by excluding such evidence from their consideration.”).

24

Even the dissent below acknowledged that, “[c]onsidered in isolation, the

implication of the [trial judge’s] affidavit is troubling.” App. 86 (quoting trial judge’s

statement that the defense “would have to trust Dr. Crawford to convince [him] that

Mr. Allen was so mentally ill throughout the time of his crimes and was so mentally

ill at the time of trial, that imposition of the death penalty would violate the Eighth

Amendment’s ban on cruel and unusual punishment”) (alteration in original). The

dissent minimizes this language by saying that “we may not consider it isolated from

the judge’s explanation for his sentencing decision on the record at the sentencing

hearing seven months earlier.” Id. But no one is suggesting otherwise. The language

of the affidavit is consistent with the many statements the trial judge made on the

record at the sentencing hearing and in the post-trial report that he failed to properly

consider Mr. Allen’s mitigating evidence.

D.

The State Inaccurately Describes South Carolina Law

The State claims that the Fourth Circuit “essentially” faulted the trial judge

“for simply following state law” because South Carolina does not require reported

findings regarding mitigating circumstances. Pet. 34. This mischaracterizes the

Fourth Circuit’s opinion and misconceives South Carolina law. The Fourth Circuit

merely pointed to the trial judge’s affirmative statements that he did not find the

existence of any mitigating circumstances to reject the argument that he simply gave

Mr. Allen’s evidence little weight. See App. 60.

South Carolina law indisputably requires the sentencer to first find the

existence of mitigating circumstances before it can afford them significance. See State

v. Bell, 360 S.E.2d 706, 713 (S.C. 1987) (capital sentencer must “consider the evidence

25

presented and determine whether the mitigating factors exist and if so, the

significance to be afforded those mitigating factors”). Within the trial judge’s

restricted framework, any consideration of Mr. Allen’s mitigation was illusory. The

Fourth Circuit’s opinion is faithful to South Carolina law. See App. 52 (“At bottom,

the sentencing judge could not have considered mitigating factors that the sentencing

judge swore did not exist.”). Regardless, the State’s reliance on a supposed misreading

of state law only highlights how inappropriate this Court’s review would be.

E.

The Fourth Circuit Did Not Misread the State Court Record.

The State’s final argument about the Fourth Circuit’s AEDPA analysis is that

the lower court misread the state court record. Pet. 35–37. But its complaints are so

trivial as to be frivolous. The State’s primary contention is that two of the defense

psychiatrists testified that Mr. Allen suffers from rumination disorder by history, but

the Fourth Circuit stated that the experts diagnosed him with rumination disorder.

Pet. 35–36. This distinction is irrelevant and approaching metaphysical; this Court

does not usually reserve space on its limited docket to parse such minutiae.

III.

THE STATE INCORRECTLY SUGGESTS THE CLAIM AT ISSUE ARISES UNDER THE

SIXTH AMENDMENT.

The State incorrectly maintains that the claim at issue is one of ineffective

assistance of counsel under the Sixth Amendment, rather than a Lockett claim under

the Eighth Amendment. See Pet. 38 (“This was a Strickland claim”); see also id. at

27; 29; 38–39. As the State appears to acknowledge, Mr. Allen has litigated this claim

in federal court both as an Eighth Amendment claim and as a related Sixth

Amendment claim. See Pet. 38 (“Allen argued to the Fourth Circuit that the state

26

court erred and counsel was ineffective in failing to object”); see also id. (“The Fourth

Circuit granted a certificate on whether it was error and counsel erred in not

objecting”) (emphasis in original); 4th Cir. ECF No. 35-1 at 45 (Br. Appellee)

(acknowledging that “there are two distinct Constitutional components at issue. The

first is an asserted right concerning presentation of mitigation” under the Eighth

Amendment).

While it is true that the Eighth Amendment claim “arose in the context of an

ineffective assistance claim rather than a straight Lockett claim” in PCR proceedings,

“[t]he State has chosen not to make a procedural default argument in this Court,

which is its prerogative.” Br. CJLF 4. The State has, in fact, chosen not to make a

procedural default argument in any court. It has instead explicitly conceded that the

Lockett claim is “available for review because the substance of those allegations have

been presented to and passed upon by the [State] circuit and appellate courts with

substantially the same factual basis and legal arguments Petitioner presents” in

federal court. D.S.C. ECF No. 50 at 25 (State’s Return and Mem. of Law in Supp. of

Mot. for Summ. J.). Even the dissent below, which was broadly critical of the majority

opinion, did not find fault on this basis, presumably due to the State’s concession that

the Lockett claim is reviewable on the merits. Whatever the merits of a hypothetical

procedural default argument may have been, the State has long since waived the

opportunity to raise one.

Certiorari should not be granted to correct an allegedly erroneous ruling on a

Sixth Amendment claim, where the claim at issue actually arose under the Eighth

27

Amendment. 4 The State’s confusion regarding this basic aspect of the case makes it

even less suitable for certiorari than it already is.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Joshua Snow Kendrick

Kendrick & Leonard, P.C.

P.O. Box 6938

Greenville, South Carolina 29606

(864) 760-4000

josh@kendrickleonard.com

E. Charles Grose, Jr.

Grose Law Firm

305 Main Street

Greenwood, South Carolina 29646

(864) 538-4466

charles@groselawfirm.com

Aren Adjoian

Counsel of Record

Federal Community Defender Office

for the Eastern District of Pennsylvania

Curtis Center, Suite 545-West

601 Walnut Street

Philadelphia, PA 19106

(215) 928-0520

aren_adjoian@fd.org

March 24, 2023

The State’s allegation that the Fourth Circuit erred by not conducting a

Strickland prejudice analysis, see Pet. 38–39, is thus plainly wrong. The Fourth

Circuit correctly determined that the sentencer’s failure to properly consider any of

Mr. Allen’s mitigating evidence “had substantial and injurious effect or influence” on

the verdict. App. 68 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).

4

28