Petition for Writ of Certiorari — Stephen C. Stanko, Petitioner v. Bryan P. Stirling, Director, South Carolina Department of Corrections, et al.

No. ____________

(Capital Case)

IN THE

Supreme Court of the United States

STEPHEN C. STANKO, Applicant/Petitioner

v.

BRYAN STIRLING, Director, South Carolina Department of Corrections,

and Lydell Chestnut, Deputy Warden Broad River Correctional Institution,

Respondents

______________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

______________

E. CHARLES GROSE, JR. (Fed ID 6072)

The Grose Law Firm, LLC

305 Main Street

Greenwood, SC 29646

(864) 538-4466 (tel)

charles@groselawfirm.com

JOSEPH J. PERKOVICH

Counsel of Record

Phillips Black, Inc.

PO Box 3547

New York, NY 10008

212.400.1660 (tel)

888.543.4964 (fax)

j.perkovich@phillipsblack.org

JOSEPH C. WELLING

Phillips Black, Inc.

100 N. Tucker Blvd., Ste. 750

St. Louis, MO 63101

314.629.2492 (tel)

888.543.4964 (fax)

j.welling@phillipsblack.org

Counsel for Applicant/Petitioner Stephen C. Stanko

QUESTIONS PRESENTED (CAPITAL CASE)

South Carolina sentenced Mr. Stanko to death in each of two trials, the first in

Georgetown County, the second in Horry County. Before the Court is the federal

habeas corpus application resulting from the Horry County judgment.

In the Georgetown County case, subsequently doubly disbarred trial counsel

William Diggs pursued a strategy that was legally untenable and outside the

professional norms of capital defense: a not guilty by reason of insanity (NGRI)

defense predicated on anti-social personality disorder (ASPD) sabotaging available

mitigating evidence, resulting in a conviction and death sentence. While Diggs was

the subject of numerous post-conviction claims of ineffective assistance of counsel

(IAC) in that case, the Horry County trial court appointed Diggs to represent Stanko

again. The State moved to remove Diggs due to an unwaivable conflict. Despite

Stanko’s known traumatic brain injuries and the failure to properly advise him of the

consequences of the conflict, the trial court accepted Stanko’s purported waiver. Diggs

pursued the same legally untenable defense before the second jury, which he

conducted at the expense of any credible mitigation during the sentencing phase.

In the Horry County post-conviction, the state courts repeatedly denied

funding for expert services for presenting Stanko’s substantial brain damage. In

habeas corpus, the District Court, under supervision of the Chief Justice of the Court

of Appeals, deemed such services “reasonably necessary” pursuant to 18 U.S.C. §

3599(f). High-resolution brain imaging was finally conducted via the District Court’s

transport authorization, but before the funded experts could even obtain the resulting

data for analysis, that Court granted summary judgment dismissing the petition. The

Fourth Circuit then deemed that a certificate of appealability under 28 U.S.C. §

2253(c) was needed for the non-final order depriving Stanko of these authorized

expert services.

Stanko asks this court to consider the following issues:

1. Does 28 U.S.C. § 2253(c)(1)(A) require a certificate of appealability for

review of an order prematurely granting summary judgment against the

petition, effectively depriving the use of expert services under § 3599?

2. a. Can a capital defendant waive his attorney’s actual conflict against him

that adversely affects counsel’s representation?

2. b. Can a defendant suffering traumatic brain injury with related

psychological impairments who is not advised of to the consequences

knowingly, voluntarily, and intelligently waive his capital counsel’s conflict

against him?

ii

PARTIES TO THE PROCEEDINGS BELOW

Stephen C. Stanko, Applicant and Petitioner/Appellant below.

Bryan Stirling, Director, South Carolina Department of Corrections, and

Lydell Chestnut, Deputy Warden Broad River Correctional Institution, Respondents

and

Respondents/Appellees

below

[hereinafter,

collectively

“the

State”

or

“Respondents”].

CORPORATE DISCLOSURE STATEMENT

For purposes of Rule 29.6, no party to the proceedings in the Fourth Circuit is

a nongovernmental corporation.

STATEMENT OF RELATED PROCEEDINGS

State v. Stanko, No. 2005-GS-26-2927 (Horry County Ct. of General Sessions) (Nov.

18, 2009, convicted) (Nov. 19, 2009, sentenced to death).

State v. Stanko, No. 27224, 402 S.C. 252, 741 S.E.2d 708 (S.C. 2013) (Feb. 27, 2013,

affirmed) (Apr. 3, 2013, rehearing denied).

Stanko v. South Carolina, 134 S. Ct. 247 (2013) (petition for writ of certiorari denied).

Stanko v. State, No. 2014 CP-26-00035 (S.C. Court of Common Pleas) (May 18, 2016,

PCR petition dismissed).

Stanko v. State, No. 2017-002281 (S.C. Sept. 19, 2019) (denial of petition for writ of

certiorari in PCR) (Nov. 4, 2019, remittitur issued).

Stanko v. Stirling, No. 1:19-03257-RMG, 2022 WL 22859294 (D.S.C.) (Mar. 24, 2022,

petition for writ of habeas corpus dismissed on summary judgment) (July 1,

2022, order denying Rule 59(e) motion).

Stanko v. Stirling, Case Nos. 22-2(L) & 22-3, 109 F.4th 681 (4th Cir 2024) (July 29,

2024, affirmed).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED (CAPITAL CASE) ......................................................... ii

PARTIES TO THE PROCEEDINGS BELOW .......................................................... iii

CORPORATE DISCLOSURE STATEMENT ........................................................... iii

STATEMENT OF RELATED PROCEEDINGS ....................................................... iii

TABLE OF CONTENTS............................................................................................... iv

TABLE OF AUTHORITIES ........................................................................................ vi

PETITION FOR WRIT OF CERTIORARI ................................................................ 9

INTRODUCTION ........................................................................................................... 9

OPINIONS BELOW ..................................................................................................... 13

JURISDICTION............................................................................................................ 13

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................ 13

STATEMENT OF THE CASE .................................................................................... 14

A.

Trial Court Proceedings ......................................................................... 14

1. Georgetown County Trial: Counsel’s Failed NGRI Strategy and Deficient

Mitigation Investigation. ............................................................................. 14

2. Horry County Trial: Diggs’s Actual Conflict Is Deemed Waived............... 16

B.

Post-Conviction Relief Proceedings .................................................... 20

1. PCR Counsel Were Unable to Litigate Colorable Claims Because the Trial

Court Refused Adequate Funding............................................................... 20

2. PCR Appeal .................................................................................................. 24

C.

Federal Habeas Proceedings ................................................................. 24

1. From the Beginning, the Parties Anticipated Investigation Beyond the

State Court Record. ..................................................................................... 24

2. New Brain Imaging, Quantitative Analysis, and Other Specialist Services

Were Again Deemed Reasonably Necessary. ............................................. 25

3. The District Court Abruptly Granted Summary Judgment Before

Permitting Amendment of the Petition to Incorporate Reasonably

Necessary Specialist Services. .................................................................... 27

4. The Fourth Circuit Panel Applied Certificate of Appealability Analysis to

Rule 59(e) Motion Rather than the District Court’s Judgment. ................ 27

REASONS FOR GRANTING THE PETITION ....................................................... 29

I.

THE FOURTH CIRCUIT’S ANOMALOUS HOLDING THAT A

CERTIFICATE OF APPEALABILITY IS REQUIRED TO REVIEW THE

iv

DENIAL OF A NON-FINAL ORDER, ON EXPERT SERVICES,

FRACTURES PRIOR UNIFORMITY AMONG THE CIRCUITS. ................ 29

A.

A Certificate of Appealability is Not Required for Review of District

Court Decisions Not Disposing of or Lacking Sufficient Nexus to

the Merits of the § 2254 Petition. .......................................................... 29

B.

Shinn Does Nothing to Impair Entitlements under § 3599(f). ........ 34

II. TRIAL COUNSEL’S conflict ADVERSELY AFFECTED STANKO’S

REPRESENTATION. ............................................................................................ 36

A.

Diggs’s Self-Interest Based Conflict Adversely Affected Stanko’s

Representation and Was Thus Unwaivable. ...................................... 36

B.

If the Conflict Was Waivable, Stanko Could Not Have Knowingly,

Voluntarily, and Intelligently Waive It. .............................................. 40

CONCLUSION.............................................................................................................. 41

v

TABLE OF AUTHORITIES

Page(s)

Cases

Ayestas v. Davis,

584 U.S. 28 (2018) ............................................................................................... 25, 30

Bixby v. Stirling,

90 F.4th 140 (4th Cir. 2024) ............................................................................... 33, 35

Christeson v. Roper,

574 U.S. 373 (2015) ................................................................................................... 38

Cuyler v. Sullivan,

446 U.S. 335 (1980) ....................................................................................... 37, 38, 41

Ellison v. United States,

120 F.4th 338 (3d Cir. 2024) ..................................................................................... 33

Glasser v. United States,

315 U.S. 60 (1942) ............................................................................................... 37, 38

Gonzalez [v. Crosby,

545 U.S. 524 (2005) ................................................................................................... 35

Harbison v. Bell,

556 U.S. 180 (2009) ....................................................................................... 30, 35, 36

Holloway v. Arkansas,

435 U.S. 475 (1978) ................................................................................................... 37

Illarramendi v. United States,

906 F.3d 268 (2d Cir. 2018) ...................................................................................... 34

Martinez v. Ryan,

566 U.S. 1 (2012) ................................................................................................. 21, 25

Mizori v. United States,

23 F.4th 702 (6th Cir. 2022) ..................................................................................... 33

Reid v. Angelone,

369 F.3d 363 (4th Cir. 2004) ............................................................................... 33, 34

Rhines v. Weber,

544 U.S. 269 (2005) ............................................................................................. 32, 36

Shinn v. Ramirez,

596 U.S. 366 (2022) ................................................................................. 28, 32, 33, 35

Shoop v. Twyford,

596 U.S. 811 (2022) ................................................................................................... 36

Slack v. McDaniel,

529 U.S. 473 (2000) ................................................................................................... 30

Stanko v. South Carolina,

134 S. Ct. 247 (2013) ............................................................................................. 3, 20

Stanko v. Stirling,

109 F.4th 681 (4th Cir 2024) ............................................................................ Passim

vi

Stanko v. Stirling,

2022 WL 22859294 (D.S.C.) ........................................................................... 3, 13, 17

State v. Stanko,

658 S.E.2d 94 (S.C. 2008) ................................................................................... 14, 15

State v. Stanko,

741 S.E.2d 708 (S.C. 2013) ................................................................................... 3, 20

Stitt v. United States,

369 F. Supp. 2d 679 (E.D. Va. 2005) .................................................................. 39, 40

Strickland v. Washington,

466 U.S. 668 (1984) ................................................................................................... 37

United States v. Tatum,

943 F.2d 370 (4th Cir. 1991) ..................................................................................... 40

United States v. Arrington,

867 F.2d 122 (2d Cir. 1989) ...................................................................................... 39

United States v. Fulton,

5 F.3d 605 (2d Cir. 1993) .................................................................................... 38, 39

United States v. Isom,

771 F.App’x 188 (4th Cir. 2019) ............................................................................... 33

United States v. McRae,

793 F.3d 392, 399 (4th Cir. 2015) ....................................................................... 33, 34

United States v. Schwarz,

283 F.3d 76 (2d Cir. 2002) .................................................................................. 38, 39

United States v. Williams,

56 F.4th 366 (4th Cir. 2023) ..................................................................................... 33

Watson v. Goodwin,

709 F.App’x 311 (5th Cir. 2018) ............................................................................... 34

Wilkinson v. Dotson,

544 U.S. 74 (2005) ..................................................................................................... 30

Statutes

18 U.S.C. § 3599 ................................................................................................... Passim

28 U.S.C. § 1254 ........................................................................................................... 13

28 U.S.C. § 1651 ........................................................................................................... 36

28 U.S.C. § 2253 ................................................................................................... Passim

28 U.S.C. § 2254 ................................................................................... 13, 28, 30, 32, 35

28 U.S.C. § 2291 ........................................................................................................... 30

S.C. Code Ann. § 16-3-10 ............................................................................................. 17

S.C. Code Ann. § 17-27-160 ................................................................................... 22, 23

Rules

Federal Rule of Appellate Procedure 60(b) ................................................................. 33

vii

Other Authorities

American Bar Association, Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases,

31 Hofstra L. Rev. 913 (2003) ................................................................................... 20

Brief for the Petitioners, Shinn v. Ramirez,

No. 20-1009, 2021 WL 3056470 (July 15, 2021) ...................................................... 35

Reply Brief for the Petitioners, Shinn v. Ramirez,

No. 20-1009, 2021 WL 4845766 (Oct. 13, 2021)....................................................... 35

Brief for Respondents, Shinn v. Ramirez,

No. 20-1009, 2021 WL 4197216 (Sept. 13, 2021) ..................................................... 35

viii

PETITION FOR WRIT OF CERTIORARI

Petitioner Stephen C. Stanko respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Fourth Circuit.

INTRODUCTION

Mr. Stanko was capitally prosecuted in two South Carolina proceedings, first

in Georgetown County in 2006 and then in Horry County in 2009. The second of these

is the subject of the federal habeas corpus litigation now before this Court.

In Stanko’s first trial, Mr. William Diggs was appointed and advanced a theory

of the case that, as Diggs recognized, was not viable under South Carolina’s not guilty

by reason of insanity (NGRI) statute. See App.051–069. Diggs thus attacked the

NGRI statute’s preclusion of a liability theory founded upon a theory of anti-social

personality disorder (ASPD), firing a volley of pre-trial motions to that end that were

summarily rejected in the Georgetown County Court of Common Pleas. Undeterred,

Diggs proceeded with his theory of an NGRI defense for Stanko—which he committed

to without obtaining Stanko’s mental health evaluation—and predictably obtained

his client’s conviction and sentence of death.

While Stanko headed to his second trial, in Horry County, his Georgetown postconviction counsel pleaded Diggs’s ineffective assistance. As Diggs was appointed in

the Horry County case (by the judge in the Georgetown County case, appearing by

special appointment), the potential conflict was noted. After Stanko initiated PCR in

Georgetown County, raising ineffective assistance of counsel (IAC) claims related to

Diggs’s representation, and despite Diggs’s express intent to espouse the same

9

Quixotic NGRI defense, the Horry County judge denied the State’s motion to replace

Diggs owing to his “unwaivable conflict,” accepting Stanko’s un-advised purported

waiver of his attorney’s conflict against him. Diggs brought an identical slew of pretrial motions attacking the constitutionality of South Carolina’s NGRI statute and

again met defeat. Diggs put on a materially indistinguishable defense for Stanko in

Horry County—to deviate from his jarringly wrongheaded approach in the first trial

would embody an admission of his prior deficient performance. Laboring under this

perhaps unique conflict of interest, due to reputational interests and immediate

financial imperatives from sustaining the second appointment for Stanko, Diggs was

certain to double down on his same moribund theory of the defense used in the first

trial. And Diggs did just that. Predictably, his dehumanizing, reductive, and

erroneous presentation of his client as a psychopath, eliciting comparisons to Ted

Bundy and Jeffrey Dahmer and false testimony that Stanko’s family had disavowed

him obtained the same outcomes as transpired in the first trial.

In Stanko’s Horry County post-conviction proceedings, his appointed counsel’s

repeated strenuous efforts to secure resources to analyze Stanko’s brain imaging were

denied, as was his entire petition.

In the District of South Carolina, Stanko’s counsel appointed under 18 U.S.C.

§ 3599 secured District Court authorization, expressly approved by the Fourth

Circuit’s Chief Judge, for various brain and mental health related specialists

pursuant to the “reasonably necessary” standard of § 3599(f). Under the one-year

statute of limitations, Stanko’s pleadings were due in the early days of the COVID-

10

19 pandemic. The massive upheaval of society and institutions profoundly impeded

the development of his case. Nonetheless, pleadings were filed and the use of the

authorized specialist services, especially those of a brain imaging neuroscience

expert, were anticipated. In the throes of the worst of the pandemic in North America,

the neuroscientist literally dismantled his research laboratory to distribute human

and other resources to aid his research hospital in attending to the severely ill and

combating the virus.

When the expert was able to take steps toward resuming his expert services,

and only then, he realized that the previous brain imaging of Stanko was not up to

the specifications used for the quantitative data analysis that he conducts. Thus, it

emerged in 2021 that new brain imaging of Stanko was needed. The District Court

thus authorized Stanko’s request for substantial funding to conduct such imaging and

a transport order from prison to an imaging facility. Three weeks after Stanko’s

transport and imaging—and before the hospital could deliver the resulting imaging

data to the neuroscientist for analysis—the District Court granted the State’s

summary judgment based only upon pleadings submitted almost entirely without the

use of the “reasonably necessary” authorized specialist services, including and

especially, of course, those of the neuroscientist.

Further, the District Court elided Diggs’s conflict of interest against Stanko

and its severe negative effects on the Horry County proceedings while endorsing the

state courts’ opinions that Stanko competently waived the unwaivable conflict,

notwithstanding his established traumatic brain injuries and mental illness and the

11

failure of both Diggs and the trial court to supply independent guidance to Stanko as

to the conflict.

After granting a Certificate of Appealability under 28 U.S.C. § 2253(c)(1)(A) on

four issues, a panel of the Fourth Circuit held oral argument wherein, despite

extensive briefing by both sides on the District Court’s foregoing deprivation of expert

services for brain imaging data analysis, the notion that Stanko needed a COA in

relation to the denial of his Rule 59(e)—rather than the underlying denial of his

habeas corpus case—for the Court of Appeals to entertain the denial of § 3599(f)

rights emerged. In its opinion, the panel departed from very well-worn precedents

within the circuit and, critically, splintered what had been consensus among the

circuits on the application of § 2253(c)(1)(A).

Certiorari is warranted here to address the Fourth Circuit’s splitting off from

the other circuits. Further, summary reversal is also warranted to remedy the lower

courts’ grave mishandling of the decidedly “reasonably necessary” expert services of

which the District Court deprived Stanko by virtue of its precipitous closure of the

habeas corpus case before, by no fault of his own, he could meaningfully plead the

bulk of his claims for relief. In addition, the blind eye the state and lower federal

courts have turned to the ruinous course of representation of conflicted counsel, who

was subsequently disbarred in North Carolina and South Carolina for grave

misconduct during the time of his representation of Stanko, too requires such

reversal.

12

OPINIONS BELOW

The July 29, 2024, opinion of the United States Court of Appeals is published.

Stanko v. Stirling, 109 F.4th 681 (4th Cir. 2024). The March 24, 2022, opinion of the

District Court of South Carolina is available in the Westlaw database. Stanko v.

Stirling, No. 1:19-03257-RMG, 2022 WL 22859294 (D.S.C. 2022).

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1) (providing for

review upon grant of a writ of certiorari of cases in the federal courts of appeals).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fourteenth Amendment to the United States Constitution provides, in

relevant part: “No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any state deprive

any person of life, liberty, or property, without due process of law . . . .”

Title 28 U.S.C. § 2253 provides, in pertinent part:

(c)(1) Unless a circuit justice or judge issues a certificate of appealability,

an appeal may not be taken to the court of appeals from—

(A) the final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State

court;

Title 28 U.S.C. § 2254 provides, in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

13

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

Title 18 U.S.C. § 3599(f) provides, in relevant part:

Upon a finding that investigative, expert, or other services are

reasonably necessary for the representation of the defendant, whether

in connection with issues relating to guilt or the sentence, the court may

authorize the defendant’s attorneys to obtain such services on behalf of

the defendant and, if so authorized, shall order the payment of fees and

expenses therefor under subsection (g).

South Carolina Statues Annotated, § 17-24-10 (2005) is included in full in the

appendix accompanying this Petition. App.048.

STATEMENT OF THE CASE

A.

Trial Court Proceedings

1.

Georgetown County Trial: Counsel’s Failed NGRI Strategy

and Deficient Mitigation Investigation.

Prior to the Horry County proceedings at bar, on August 11, 2006, and August

18, 2006, respectively, Stanko was convicted and sentenced to death in a separate

proceeding in the State of South Carolina in the Court of General Sessions for

Georgetown County. App.353–354. In that trial for six charges including murder, in

the death of his girlfriend and assault of her daughter (State v. Stanko, 658 S.E.2d

94, 95 (S.C. 2008)), the court appointed William Diggs and Gerald Kelly to represent

Stanko. After unsuccessfully challenging the constitutionality of statutes prohibiting

presenting a not guilty by reason of insanity (NGRI) defense premised on antisocial

personality disorder (ASPD) (App.051–069), Diggs presented an ASPD theory of the

case in pursuit of an NGRI liability verdict, to the detriment of a meaningful

mitigation investigation and presentation in the penalty phase. See App.362–363 and

14

sources cited therein. Diggs committed to this strategy before conducting any type of

mental health evaluation of his client: at the March 17, 2006, hearing of Stanko’s

motion to remove Diggs from the case due to Stanko’s frustration that Diggs had not

yet conducted any expert evaluation, Diggs said that he had engaged and expert, but

then switched to find an expert that would go along with his strategy. State v. Stanko,

No. 2005-GS-2200918, ROA.3585–89 (Vol. 8)1. Diggs engaged Dr. Sachy because he

knew he was amenable to Diggs’s pre-determined strategy from Sachy’s work in a

Georgia case. App.081. The Supreme Court of South Carolina affirmed the

Georgetown County judgment in State v. Stanko, 658 S.E.2d 94 (S.C. 2008). On

October 13, 2008, Stanko initiated post-conviction review proceedings (“PCR”),

eventually raising eight distinct claims of ineffective assistance of trial counsel

concerning the foregoing performance in the liability and penalty phases. App.204–

209, App.210–218.2

At the April 27–28, 2015 evidentiary hearing, Diggs testified in opposition to

Stanko’s IAC claims. He said that Dr. Sachy told him Stanko “was legally insane, met

the definition of insanity.” App.075. He testified, grossly contrary to defense norms,

that if the insanity defense failed “then it would certainly be a mitigating factor in

the sentencing. . . . I didn’t see a downside in presenting it at the guilt phase.” He

1 Available at https://ctrack.sccourts.org/public/caseView.do?csIID=40270. The State

included a substantial but incomplete portion of the Georgetown Record in the

District Court in this case. The District Court later granted Stanko’s motion to

supplement the record with the full set. App.085–089.

At the December 8, 2008, Georgetown PCR hearing, Stanko and Judge Baxley

discussed the “conundrum” of keeping Diggs in the Horry County case (infra) while

pleading IAC here. App.121–123.

2

15

acknowledged the unmistakable, viz., that state law did not permit the defense he

continued to pursue even after denial of his pre-trial motions challenging the statute.

App.076. He testified that it could be a reasonable legal strategy to compare your

client to Ted Bundy, who was convicted of thirty-six murders and thought to have

committed over a hundred. App.077 (“I think reasonable minds can disagree on

that.”). He said of testimony comparing Stanko to John Wayne Gacy, who was

convicted of sexually assaulting, killing, and eating some thirty-three young boys,

that he “didn’t think it distracted from the merits of the defense we were presenting.”

App.079–080. He acknowledged that he told the jury “that not even his family would

come to support him” at trial. App.082. He dug in, defending his decision not to argue

or submit certain mitigators because he believed they were inconsistent with his

insanity defense. App.083. He believed he should not do anything inconsistent with

his chosen defense, and if the law foreclosed that defense, his obligation was to tell

the jury not to follow the law because he believes it is unconstitutional. App.084.

Ultimately, on June 20, 2024, the state supreme court declined to review denial

of post-conviction, and federal habeas corpus proceedings are underway. Stanko v.

Stirling, No. 1:24-cv-04109-RMG-SVH.

2.

Horry County Trial: Diggs’s Actual Conflict Is Deemed

Waived.

On August 5, 2005, a Horry County grand jury true billed a two-count

indictment of Stanko consisting of one count of murder under S.C. Code Ann. § 16-310 for the April 8, 2005 death of Henry Turner, and armed robbery under § 16-11330(A). App.150.

16

On November 15, 2006, Diggs was once again appointed for Stanko, this time

by Judge Baxley presiding in the Court of General Sessions for Horry County by

special appointment. App.106–112. Counsel from the Public Defender told the court

their office is “overwhelmed with the caseload that we presently have.” App.111.

Although Diggs informed the court that Stanko had filed a motion to remove Diggs

from his Georgetown County case and substitute in David Axelrod, “the underlying

factual scenario that played out in that situation has created a conflict” that would

bar Axelrod’s appointment as Diggs’s second chair in this case. App.112. Judge

Braxley questioned Stanko with no counsel present. App.115–118. Without receiving

any advice, Stanko told the court “I’m not an idiot to the law, and I don’t and would

not raise any kind of argument concerning Mr. Diggs and his representation.”

App.118. Subsequently, Ms. Brana Williams joined Diggs as the second chair at trial

by her appointment on February 23, 2007. App.171.

At the March 4, 2009, hearing reviewing Diggs’s appointment by Judge Baxley,

Judge John remarked that the appointment was “at least questionable, if not

inconsistent” in light of the IAC claims Stanko raised against Diggs in the

Georgetown County PCR. App.127. Judge John recognized that the conflict would

adversely affect Diggs’s performance noting that Diggs could no longer discuss the

Georgetown representation with Stanko. App.127. Stanko told Judge John that he

was confident Diggs would learn from his mistakes and do things differently.3

3 But Diggs had already promised Judge Baxley “a significant savings” because he

would not need a mitigation investigator because the defense meant to rely on the

what was done in Georgetown County. App.113–114.

17

App.128. Judge John determined that Stanko “definitely wants Mr. Diggs to remain

as his trial counsel.” App.129.

On April 28, 2009, the State filed a motion submitting that “a non-waivable

conflict of interest exists between William L. Diggs Esquire, and the defendant, in

that the defendant has, by the filing of his Post Conviction Relief petition, already

waived attorney-client privilege in connection with the companion case,” and

observing that Diggs “intends to offer a similar defense and similar mitigation

utilizing the same experts from the companion case” and that “waiver of the attorneyclient privilege in the companion case would materially limit representation” in this

case. App.172–173. The State also argued that “waiver of the attorney-client privilege

in the companion case would materially limit representation” in this case.4

On June 5, 2009, Judge John conducted a hearing on the State’s motion.

App.132–148. Second chair Williams informed the court that nothing had changed

since the prior April discussion of the matter, and the court ascertained that Stanko

still wanted Diggs on the case. App.137–138.5 No one apprised Stanko of the

consequences of waiver, that the NGRI strategy Diggs adopted was outside the norms

4 Diggs would be disbarred in North Carolina and South Carolina for conduct during

the period he represented Stanko in Horry County. App.377–378. This conduct—

stealing from client trust accounts and repeatedly failing to disclose disciplinary

proceedings he was obliged to disclose—displays likely financial difficulties. It also

demonstrates a pattern of withholding required information. Diggs’s financial straits

provide an underlying conflicted interest in continuing his appointment in Horry

County. App.364 n.16, App.365–366, App.376–378.

5 Judge John remarked that this is the third time addressing the issue, referencing

the November 15, 2006, appointment hearing before Judge Braxley. App.137. But

that hearing took place nearly two years before Stanko initiated the Georgetown

County PCR proceedings alleging IAC of Diggs’s representation on October 13, 2008.

18

of capital representation, or that professional norms had established a far better way

of mobilizing evidence of brain trauma. Stanko again expressed confidence that any

prejudicial deficient performance in the Georgetown case would not be repeated.

App.142. The State pointed out that neither of the hearings on the conflict addressed

the issue of waiver of the attorney-client privilege, but in affirming Diggs’s

appointment, the court inexplicably said that that “fact has no [e]ffect on, on this

particular trial.” App.143.

At trial, Diggs pursued the same untenable NGRI strategy including a

substantively identical set of pre-trial motions challenging the South Carolina

statutes. App.151–170. That strategy again failed, and Stanko was convicted and

sentenced to death in Horry County also. App.098–101. As noted, Diggs’s strategy,

far outside the professional norms of capital representation,6 entailed presenting his

client to the jury as a psychopath, which included eliciting testimony comparing him

to notorious serial killers Ted Bundy and Jeffrey Dahmer. App.203, App.201–202. He

also elicited false testimony that Stanko’s own family had disavowed him, further

dehumanizing his client, and ensuring the worst outcome. App.366, App.103–104.

The predictable result was verdicts in conviction (November 16, 2009) and

death sentence (November 19, 2009). App.099–102, App.097.

6 “This diagnosis [ASPD] is not only very harmful but, unfortunately for many of our

clients, it is often arrived at erroneously.” John Blume, Mental Health Issues in

Criminal Cases: The Elements of A Competent and Reliable Mental Health

Examination, The Advocate, Ky. DPA (Aug. 1995) at 10–11, available at

https://secure.in.gov/ipdc/files/Elements-of-Competent-Reliable-MH-Evaluation.pdf

(cited American Bar Association, Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases, 31 HOFSTRA L. REV. 913, 956 n.93 (2003))

19

Direct appeal began in May 2012. App.174. After the parties’ briefing, the

South Carolina Supreme Court affirmed the trial court judgment on February 27,

2013. State v. Stanko, 741 S.E.2d 708 (S.C. 2013) (Stanko II). Stanko sought

rehearing on the denial of his direct appeal, which was denied on April 3, 2013. State

v. Stanko, No. 2010-154746 (S.C. Apr. 3, 2013). App.175–176.

On October 7, 2013, the United States Supreme Court denied Stanko’s petition

for writ of certiorari from his direct appeal decision. Stanko v. South Carolina, 571

U.S. 902 (2013).

B.

Post-Conviction Relief Proceedings

1.

PCR Counsel Were Unable to Litigate Colorable Claims

Because the Trial Court Refused Adequate Funding.

At PCR, Stanko’s counsel made a clear record that they provided ineffective

assistance because they were denied adequate funding to present colorable claims.

Following the October 7, 2013 denial of certiorari (supra), Stanko properly filed

his state PCR petition, which was assigned to the Court of Common Pleas, Fifteenth

Judicial Circuit, Hon. Benjamin H. Culbertson. Judge Culbertson presided over the

“initial-review collateral proceeding,” as that term is used in Martinez v. Ryan, 566

U.S. 1, 4 (2012) (infra).

On April 1, 2014, post-conviction counsel filed an ex parte motion for expert

funds in excess of the statutory limit, as “reasonably necessary for the representation

of the defendant.” App.219–221. Counsel sought funding for: (i) a fact investigator

necessary to follow up on facts revealed by post-conviction counsel’s initial records

review and preliminary investigation steps which revealed facts that if true suggest

20

colorable claims of juror bias, juror misconduct, ineffective assistance of counsel at

jury selection, and ineffective assistance in failure to investigate and rebut the state’s

case that Stanko is “a con-man with violent tendencies”; (ii) a mitigation investigator

to investigate what was revealed in consultation with the Georgetown mitigation

investigator, that trial counsel unreasonably limited mitigation investigation due to

his fixation on an NGRI defense and baseless predetermination that a “psychopath”

diagnosis would be the only outcome from a mitigation inquiry; and (iii) a forensic

psychologist to investigate the relationship between Stanko’s life history and

potential brain damage and/or mental illness. App.225–232. On April 29, 2014, the

court granted the motion as to the mitigation specialist only, denying the other two

funding requests. App.250–260. The court said that the motion failed to say what

facts it turned up that would necessitate a fact investigator, and that a forensic

psychologist is not reasonably necessary without “more substantial indication that

[Stanko] suffers a mental illness other than being a psychopath.” App.255, App.258.

On May 8, 2014, post-conviction counsel filed a motion to reconsider, arguing,

inter alia, that lead trial counsel’s obsession with NGRI and the “psychopath”

diagnosis foreclosed any meaningful investigation of other mental illness or brain

damage. App.261–272.

On June 3, 2014, the court partially granted the motion to reconsider (for

limited fact investigation), but altogether denied funding a forensic psychologist,

reasoning that under the statute, S.C. Code Ann. § 17-27-160, funding cannot be

21

granted “until after the services are performed and a beneficial result obtained.”

App.273.

On July 28, 2014, post-conviction counsel filed a second motion for expert

services, which included a request for a licensed social worker (LSW) to investigate

Stanko’s social and family history. App.274–287. The motion detailed that the LSW,

Dr. Andrews, had already begun work without a funding order: having reviewed

documents, met with Stanko, and interviewed one family member. Dr. Andrews

provided a detailed listing of what must be done to complete the work, something she

could not do without funding. App.280–283.

On September 25, 2014, the court denied the second funding motion, again

stating that the statute permitted funding only after services were performed and

shown to be necessary. App.288–290.

On October 14, 2014, counsel filed a motion to reconsider (App.291–315),

noting that the court’s interpretation of the statute put Stanko in an “impossible and

unprecedented bind.” App.298. The motion placed on the record that denial of funding

will result in ineffective assistance of post-conviction counsel, creating a Martinez

exception (supra) in federal court. App.298–300. With a merits hearing of the petition

for post-conviction relief set to begin on March 2, 2015, on January 6, 2015, counsel

filed a brief in support of the motion to reconsider the second funding motion

(App.316–321, App.322–343), and a motion to continue the merits hearing until nine

months after the disposition of the funding motion to provide time to conduct the

22

necessary investigations (App.177–193).7 On February 27, 2015, the court denied four

motions, including the motion to reconsider the second funding motion and the motion

to continue the merits hearing. App.198–199. The court used a form denial and

offered no reasoning. Id.

Meanwhile, on February 3, 2015, Stanko’s counsel petitioned the South

Carolina Supreme Court for oversight of the post-conviction action in order to raise

the deprivation of adequate funding for investigation and experts and to seek a

continuance permitting proper preparation for a merits hearing on Stanko’s PCR

application scheduled for March 2, 2015. App.195.

After the State’s response and counter-request to release the ex parte funding

requests and Stanko’s reply, the Supreme Court of South Carolina denied the

requests on February 25, 2015. App.196. On March 2, 2015, the PCR hearing

commenced as scheduled. App.200.

The PCR court ultimately denied the application by an order signed May 13,

2016. App.344–352. On March 1, 2018, the Supreme Court of South Carolina

appointed Stanko’s PCR counsel, Ms. Lindsey Vann, and permitted co-counsel, Ms.

Emily Paavola, to serve in a pro bono capacity to petition the court for certiorari

review. App.355.

7 As in the state supreme court proceedings, infra, the continuance motion triggered

State’s motion to unseal all these ex parte funding pleadings and orders. App.194.

23

2.

PCR Appeal

On October 31, 2019, the South Carolina Supreme Court denied Stanko’s

petition for rehearing of its September 19, 2019, affirmance of the denial of his state

PCR application. App.356–357.

Subsequently, Diggs was disbarred in both North Carolina and South Carolina

for egregious professional misconduct, including misappropriation of client trust

funds and repeated failures to make required disclosures of disciplinary actions.

App.377–378.

C.

Federal Habeas Proceedings

1.

From the Beginning, the Parties Anticipated Investigation

Beyond the State Court Record.

On November 19, 2019, the Court of Appeals appointed counsel for Stanko

pursuant to 18 U.S.C. § 3599 and initiated the habeas corpus litigation with a

scheduling order. App.090–096. The year prior, this Court clarified that the

entitlement of capital petitioners to specialist services pursuant to § 3599(f) arises

when, under the plain meaning of the statutory terms, such services are “reasonably

necessary” for presenting constitutional claims. Ayestas v. Davis,584 U.S. 28, 45–46

(2018).8 The District Court, acting “with the concurrence on May 5, 2020, of Chief

Judge Roger L. Gregory, Court of Appeals for the Fourth Circuit,” approved Stanko’s

8 Ayestas holds that while the term “reasonably necessary” does not mean the services

are absolutely “essential” to the representation, the correct standard “requires courts

to consider the potential merit of the claims that the applicant wants to pursue” in

addition to “the likelihood that the services will generate useful and admissible

evidence.” Id. at 46–47.

24

request for specialist services, including those of neuroimaging expert Prof. Ruben C.

Gur, which would explore evidence that was not developed in the state court record

due to deficiencies in that process but would be cognizable in these proceedings

pursuant to the equitable rule in Martinez (supra), finding the requisite necessity of

such services.

Recognizing the need to investigate evidence outside the record and the

barrier, due to the global pandemic, to timely achieving that evidentiary development

within the statute of limitations, the parties entered into an agreement under which

Stanko would file a timely First Amended Petition pleading only record-based claims,

to be followed by a subsequent amendment raising “additional habeas corpus claims

beyond those contemplated” in that petition. App.358–361.

2.

New Brain Imaging, Quantitative Analysis, and Other

Specialist Services Were Again Deemed Reasonably

Necessary.

Many of Stanko’s petition claims depended on specialist services, including

particularly Dr. Gur, who was contracted to perform Quantitative Analysis (Q.A.) of

high-resolution brain imagery which can show brain anomalies (especially volumetric

losses) in specific brain structures, and to provide integrative reporting relying on

other contracted specialist services including the mitigation specialist and, notably,

psychiatrist James R. Merikangas, M.D., and neuropsychologist, Dr. Robert H.

Ouaou, whose services were authorized under § 3599(f)’s “reasonably necessary”

standard. Stanko’s counsel inherited earlier brain imaging and understood, upon

25

consultation with Dr. Gur, that the preexisting imaging would be put through the

expert’s Q.A. processing.

The global COVID-19 pandemic forestalled efforts to deploy these services. Dr.

Merikangas, for example, could not visit prisons owing to risk factors associated with

his age. Dr. Ouaou was compelled against the standard of care to conduct a Kentucky

prison evaluation and became seriously ill during one of the waves of the pandemic

in 2021. The university hospital where Dr. Gur’s office is located shut down all

forensic work and redeployed its resources to clinical and ongoing research projects.

Dr. Gur’s office was disassembled and during this period, Stanko’s counsel was

unable to conduct any meaningful consultation with him. It was only when pandemic

conditions eased, that Dr. Gur began reassembling his technical capabilities. Only at

that point, however, did counsel learn that existing brain imaging was not adequate

for Q.A.

Accordingly, on October 6, 2021, Stanko filed another motion for specialist

services, viz., certain brain imaging at the Medical University of South Carolina

(MUSC) in Charleston, arguing they are reasonably necessary because they are

“essential to certain specialist services already funded under 18 U.S.C. § 3599(f).”

App.367. Before and after Stanko’s response to the State’s return and motion for

summary judgment, and pleadings connected to Stanko’s partial summary judgment

motion, (App.369, App.372–375), this Court granted the brain imaging funding

motion, (App.368 (Ex Parte Funding Order)) and associated transport motion

(App.379). Under the transport order, the brain imaging, after extensive effort to

26

broker coordination between the medical facility, the department of corrections, and

the funding court, took place on March 3, 2022. See App.380.

3.

The District Court Abruptly Granted Summary Judgment

Before Permitting Amendment of the Petition to

Incorporate Reasonably Necessary Specialist Services.

On March 24, 2022, three weeks after Stanko’s transport and brain imaging

and before the facility could deliver the imaging data to Stanko’s specialists for

analysis and reporting that would substantiate amended petition claims, the District

Court granted the State’s Motion for Summary Judgment. App.381, App.385.

During the pendency of Stanko’s Rule 59(e) Motion to Alter or Amend the

Judgment9 filed April 20, 2022 (App.386–424), on May 23, 2022, the Supreme Court

decided Shinn, holding that 28 U.S.C. § 2254(e)(2) prohibits consideration of evidence

beyond the state court record even as to claims falling under the Martinez equitable

exception. Shinn v. Ramirez, 596 U.S. 366, 371 (2022). Further, it held that, where a

petitioner “failed to develop” evidence in state proceedings, the district courts may

not even consider evidence outside the state court record “to assess cause and

prejudice under Martinez.” Id. at 388. On July 1, 2022, the District Court denied

Stanko’s Rule 59(e) motion. App.426–432.

4.

The Fourth Circuit Panel Applied Certificate of

Appealability Analysis to Rule 59(e) Motion Rather than

the District Court’s Judgment.

9 The Rule 59(e) motion cited certain ex parte filings for the fact that the § 3599(f)

specialist services had been deemed “reasonably necessary.” The District Court

granted the State’s motion to remove ex parte status. The Fourth Circuit consolidated

the interlocutory appeal (raised under the collateral order doctrine) with the present

appeal of dismissal of his § 2254 petition by summary judgment.

27

Upon granting a certificate of appealability under 28 U.S.C. § 2253(c)(1)(A) on

four issues (where the District Court granted none), the parties briefed and argued

the appeal and the Fourth Circuit panel affirmed the District Court’s denial of all

relief and “dismiss[ed] the portion of the appeal over which we have no jurisdiction.”

Stanko, 109 F.4th at 685.

In so doing, the panel grafted onto § 2253(c)(1)(A) certain fine lines the circuit

court had drawn between “dismissal” and “denial” in motions to reopen judgments

pursuant to Rule 60(b). Id. at 700. Observing that the District Court dismissed

Stanko’s Rule 59(e) motion, the panel divined that the deprivation of his resources

under § 3599(f) became a question needing a certificate of appealability rather than

a non-final order that, by definition, does not need one. Id. This confused reasoning

places the non-final versus final order question with the motion to alter the District

Court’s judgment rather than the very judgment denying relief itself. That confusion,

if left unaddressed, splinters prior uniformity among the circuits on the availability

of appellate review without a COA for non-final orders.

The panel’s fateful misapplication of § 2253(c) thus foreclosed review of the

grave issues underlying the deprivation of Stanko’s repeatedly court-recognized

entitlement to expert funding under § 3599(f) concerning the illumination of his

traumatic brain injury history. The improperly truncated process Stanko received

compounded both the paralyzing consequences of cascading hospital crises and

lockdowns and the failed PCR process in which he received nothing resembling

meaningful development and review of brain damage evidence. Perhaps above all, it

28

amounted to only superficial scrutiny of a uniquely severe conflict of interest of

counsel against his client due to the persistence of Diggs’s representation—for the

sake of his reputational and financial interests—and advancement of an

unambiguously hopeless theory of an NGRI defense.

REASONS FOR GRANTING THE PETITION

I.

THE FOURTH CIRCUIT’S ANOMALOUS HOLDING THAT A

CERTIFICATE OF APPEALABILITY IS REQUIRED TO REVIEW THE

DENIAL OF A NON-FINAL ORDER, ON EXPERT SERVICES,

FRACTURES PRIOR UNIFORMITY AMONG THE CIRCUITS.

A.

A Certificate of Appealability is Not Required for Review of

District Court Decisions Not Disposing of or Lacking Sufficient

Nexus to the Merits of the § 2254 Petition.

In 2009, this Court unanimously held that an order denying a request for

counsel resources under 18 U.S.C. § 3599 does not require a certificate of

appealability (“COA”). Harbison v. Bell, 556 U.S. 180, 183, 196 (2009). Justice

Stevens, writing for the majority, held that the denial of a motion to authorize federal

counsel to proceed in state clemency “was clearly an appealable order under 28 U.S.C.

§ 2291.” Id. at 183. Justice Scalia, writing in dissent and joined by Justice Alito,

“agree[d] with the Court that Harbison was not required to obtain a certificate of

appealability under 28 U.S.C. § 2253(c)(1)(A) before appealing the District Court’s

denial of his motion to expand counsel’s appointment.” Id. at 200.

Nine years later, the Court reviewed the Fifth Circuit’s affirmance of the

Southern District of Texas’s denial of an expert funding request, recognizing that the

court of appeals “held that a COA was not required insofar as petitioner challenged

the District Court’s denial of funding under § 3599.” Ayestas v. Davis, 584 U.S. 28, 38

29

n.1 (2018). At bottom, a COA is plainly not required for issues that are not “the final

order in a habeas corpus proceeding.” Harbison, 556 U.S. at 182 (citing Slack v.

McDaniel, 529 U.S. 473, 484-85 (2000); Wilkinson v. Dotson, 544 U.S. 74, 78–83

(2005)).

In Stanko’s case, the Fourth Circuit broke from its own precedents that

correctly apply this Court’s Harbison line and caused a split among other circuits.

Instead of applying Harbison and Ayestas with respect to Stanko’s pivotal, albeit nonmerits, expert services issue, the Fourth Circuit’s disposition contrives a novel

incorporation of Rule 60(b) rationale into Rule 59(e), simultaneously shifting the

fundamental point of inquiry from the denial of Stanko’s habeas corpus application

to the denial of his motion to alter that denial. This shift mainly functions to reorder

the sequence of events between a substantial change in the law and the pendency of

Stanko’s petition.

That is, the Fourth Circuit re-sorted the chronology to enable a rationale that

the handing down of Shinn foreclosed the procedural viability of Stanko’s pursuit of

presenting § 3599 expert evidence in federal court, given that Shinn largely precludes

the introduction of such trial-ineffectiveness evidence when it is not already in the

state court record.

The first problem with this manipulation of the timeline is that it yields a

depiction of the events that is, in a word, disingenuous. There is no escaping that the

District Court granted the State’s summary judgment motion before Shinn was

handed down. Shinn could not have had any bearing on the denial of Stanko’s

30

application. Shinn could only have had a bearing on the denial of Stanko’s Rule 59(e)

motion.

Thus, the Fourth Circuit panel’s recitation in the Rule 59(e) motion’s disposal

skewed the timeline:

And, as in Reid, the district court considered the merits of that claim in

denying Stanko’s motion: There was no need to wait for the testing at

issue, it concluded, because the results would be inadmissible under the

Supreme Court’s then-recent decision in Shinn, barring a federal habeas

court from considering new evidence, beyond the state court record,

based on ineffective assistance of post-conviction counsel.

109 F.4th at 700. This rewriting of the case history is perhaps the only available

explanation for the panel’s bizarre application of § 2253(c)(1)(A) to Stanko’s motion

to amend or alter the judgment rather than to the judgment itself. However, in this

capital case, that is not merely legally absurd.

An important further consideration of Shinn’s implications is that the Fourth

Circuit’s treatment of this new authority overstated its impact of foreclosing review.

While Shinn provides that responsibility for post-conviction counsel having “failed to

develop” evidence in the state court, per 28 U.S.C. § 2254(e)(2), “is attributed to the

prisoner,” 596 U.S. at 382, here, as set forth herein, the reason for lack of brain

imaging evidence at PCR is due to the post-conviction court, not post-conviction

counsel, who struggled mightily, the record unmistakably reflects, to secure the

requisite resources for developing appropriate evidence to support a meaningful

presentation of Stanko’s brain anomalies. Also, Shinn did not erode a petitioner’s

ability to stay federal proceedings in order to return to state court to exhaust under

Rhines v. Weber, 544 U.S. 269 (2005), and in Stanko’s case, his ability to do just that

31

was foreclosed by the District Court’s abrupt termination of the case just three weeks

after it had permitted his transport out of prison to a medical facility for braining

imaging on March 3, 2022.

Thus, the Fourth Circuit’s choice to premise its anomalous decision on whether

the District Court’s disposal of the Rule 59(e) motion—not the § 2254 action itself—

was designated a “dismissal” or a “denial” functions, improperly, to justify avoidance

of the lower court’s facially rash management of the capital litigation:

We have drawn a line between a dismissal of a motion for

reconsideration as an unauthorized successive petition, which may be

appealed without a COA, id. at 399-400, and a denial of a motion for

reconsideration on its merits, which may not, see Reid v. Angelone, 369

F.3d 363, 370 (4th Cir. 2004). Whereas a dismissal by definition does not

pass on a habeas petitions merits, the same is not true of a denial: When

a district court denies a reconsideration motion10 “on the merits, it

necessarily considers the merits of the underlying habeas petition”

because such a motion “alleges illegality in the conduct of” the habeas

proceedings. [United States v. McRae, 793 F.3d 392, 399 (4th Cir. 2015)].

109 F.4th at 700 (emphases in original).

The Court of Appeals’ reliance on Reid, 369 F.3d at 370, and McRae, 793 F.3d

at 299, is misplaced,11 and the case at bar thereby departs from prior Fourth Circuit

authorities. See, e.g., Bixby v. Stirling, 90 F.4th 140, 157 n.3 (4th Cir. 2024); United

10 But McRae did not involve a “reconsideration” motion. McRae, 793 F.3d at 399.

(“When a district court denies a Rule 60(b) motion on the merits, it necessarily

considers the merits of the underlying habeas petition.”).

11 These cases involve Federal Rule of Appellate Procedure 60(b) motions—a motion

to re-open an already-denied petition, which is not at all involved here—are

predicated on discerning whether a non-merits issue from a district court’s denial of

habeas corpus relief is appealable without a certificate of appealability (“COA”)

pursuant to 28 U.S.C. § 2253(c).

32

States v. Williams, 56 F.4th 366, 370 n.3 (4th Cir. 2023); United States v. Isom, 771

F.App’x 188, 189 (4th Cir. 2019)

This departure fractures a general uniformity among the circuits on § 2253(c)

and non-final orders. See, e.g., Mizori v. United States, 23 F.4th 702, 704–05 (6th Cir.

2022) (COA not needed for order denying extension of time because it is non-final);

Ellison v. United States, 120 F.4th 338, 343 (3d Cir. 2024) (COA only required for

“orders that dispose of the merits of the proceeding” and is not required to review

denial of a request for an evidentiary hearing); Illarramendi v. United States, 906

F.3d 268, 269 (2d Cir. 2018) (COA not required for order denying supervised release

because it is non-final); Watson v. Goodwin, 709 F.App’x 311, 311–12 (5th Cir. 2018)

(COA not required for order denying bail because it is non-final).

In creating this split, the Fourth Circuit bafflingly framed Stanko’s motion to

alter the judgment, a motion filed in the typical course of litigation and granted only

in extraordinary circumstances, as the main event of the habeas corpus action. The

Rule 59(e) motion merely gave the District Court the opportunity to reconsider

whether it improperly truncated specialist services previously authorized under §

3599. The Fourth Circuit’s approach conflates Rule 60(b) with Rule 59(e), but no

authority, nor principle, justifies that contravention of the foregoing Supreme Court

authorities.

Reid held that a COA was required because denial of a Rule 60(b) was a final

judgment in a habeas proceeding. Reid, 369 F.3d at 367–69. McRae also addressed

whether a COA is needed to appeal disposition of a Rule 60(b) motion, but in that

33

case the disposition was styled a “dismissal” rather than a denial, though the district

court specified the “dismissal” was because the purported Rule 60(b) motion was

actually an impermissible successive habeas petition. McCrae, 793 F.3d at 394. Based

largely on guidance from post-Reid Supreme Court decisions, the Fourth Circuit

found that a COA was not necessary in every disposition of a purported Rule 60(b)

motion. Id. at 398 (“Based on the Court’s reasoning in Gonzalez [v. Crosby, 545 U.S.

524 (2005)], and Harbison v. Bell, 556 U.S. 180[] (2009), we hold that the COA

requirement in § 2253(c) allows us to review, without first issuing a COA, an order

dismissing a Rule 60(b) motion as an improper successive habeas petition.”).12

B.

Shinn Does Nothing to Impair Entitlements under § 3599(f).

As noted above, the Fourth Circuit’s improper focus on the disposition of the

Rule 59(e) motion skewed the timeline masking the fact that Shinn had not even been

decided when the District Court’s error in issuing summary judgment without first

permitting the performance of expert services that it authorized pursuant to § 3599(f)

accrued. App.385.

More important, nothing in Shinn invalidates or otherwise calls into question

§ 3599(f). Neither the briefing nor opinion in Shinn mentions § 3599 at all. See

generally, Shinn, 596 U.S. at 366-91; Brief for the Petitioners, Shinn, No. 20-1009,

2021 WL 3056470 (July 15, 2021); Brief for Respondents, Shinn, No. 20-1009, 2021

12 The Fourth Circuit subsequently recognized that Gonzales and Harbison further

abrogated Reid’s broad holding by noting that “Gonzalez reveals the importance of

distinguishing between Rule 60(b) motions and successive petitions, and Harbison

opens the door for us to ensure that the district court does so properly.” Bixby, 90

F.4th at 157 (4th Cir. 2024).

34

WL 4197216 (Sept. 13, 2021); Reply Brief for the Petitioners, Shinn, No. 20-1009,

2021 WL 4845766 (Oct. 13, 2021). Shinn only addressed whether the equitable

exception in Martinez(supra) implies an exception to § 2254(e)(2). Shinn, 596 U.S. at

371. It did not address the range of admissibility of new evidence that might be

reasonably necessary to the § 3599 representation. See, e.g., Harbison, 556 U.S. at

183–87 (holding that § 3599 provides for representation of indigent prisoners in

proceedings beyond federal habeas, including state executive clemency and other

available post-conviction proceedings).

Similarly, the Fourth Circuit improperly relies on Shoop v. Twyford, 596 U.S.

811 (2022), without responding to arguments showing it is inapposite. Twyford

addresses the ramifications of Shinn as to a request for a transport order under the

All Writs Act (28 U.S.C. § 1651(a))—not the effective denial of specialist services

authorized under § 3599(f). Twyford, 596 U.S. at 814. Section 1651 requires that the

writ generate evidence admissible in the federal jurisdiction. Id. at 816. Just as

Harbison found it could not infer a limitation to “federal” proceedings in § 3599(e),

Harbison 556 U.S. at 186–87, this Court should not infer a similar unwritten

limitation in § 3599(f). Here, by contrast, the District Court issued a transport order

in furtherance of authorized services—not the All Writs Act. As repeatedly pleaded,

on February 15, 2022, the District Court issued its transport order for Stanko’s brain

imaging on March 3, 2024. App.380. Just three weeks later, before the hospital could

35

even transmit the scans to Stanko’s authorized specialists, the District Court granted

summary judgment.13

II.

TRIAL COUNSEL’S CONFLICT ADVERSELY AFFECTED STANKO’S

REPRESENTATION.

A.

Diggs’s Self-Interest Based Conflict Adversely Affected Stanko’s

Representation and Was Thus Unwaivable.

This Court has long recognized that the Sixth Amendment requires reversal of

a conviction obtained when trial counsel labored under an actual conflict which

adversely affected performance, even when the defendant “raised no objection at

trial.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). This Court has repeatedly

emphasized that actual conflict and adverse effect of the conflict are the only two

elements a petitioner must prove, rejecting that there is any burden to prove a likely

effect on the outcome. Glasser v. United States, 315 U.S. 60, 76 (1942) (“The right to

have the assistance of counsel is too fundamental and absolute to allow courts to

indulge in nice calculations as to the amount of prejudice arising from its denial.”);

Cuyler, 466 U.S. at 349–50; Strickland v. Washington, 466 U.S. 668, 692 (1984).

Although a defendant may waive the representation of counsel who is

“unhindered by a conflict of interests,” like in Holloway v. Arkansas, “[i]n this case,

however, [the State] does not contend that [the] petitioner[] waived that right.” 435

U.S. 475, 483 n.5 (1978). Rather, the prosecution, at trial, insisted that the conflict

was unwaivable and Stanko was unable to consent to Diggs’s representation—setting

13 Further, the District Court abruptly ended the case before Shinn was decided, and

before Stanko could move to stay the federal proceedings under Rhines v. Weber, 544

U.S. 269 (2005).

36

aside the profound cognitive and mental health questions and the absence of

independent representational advice in relation to the Horry County bench’s reappointment of Diggs.

A conflict is “actual” when counsel “actively represent[s] conflicting interests.”

Cuyler, 446 U.S. at 350 (citing Glasser, 315 U.S. at 72–75).14

Diggs’s conflict was actual in that he actively represented conflicting interests

when he was simultaneously resisting claims of IAC in the Georgetown County case

while representing Stanko in the Horry County case. See also Christeson v. Roper,

574 U.S. 373, 379 (2015) (recognizing that § 3599 counsel were in conflict because

they “manifestly served their own professional and reputational interests” when they

blew the AEDPA statute and then defended their calculation of the statute against

their own client’s interest).

The Second Circuit has noted that conflicts which “so permeate the defense

that no meaningful waiver may be obtained,” including those arising from the

attorney’s self-interest are per se unwaivable. United States v. Schwarz, 283 F.3d 76,

96 (2d Cir. 2002) (quoting United States v. Fulton, 5 F.3d 605, 613 (2d Cir. 1993)15

(alteration in Schwarz)). The test was whether “the [attorney] would sacrifice [the

defendant’s] interests for those of the [police union].” Schwarz, 283 F.3d at 96. The

Second Circuit concluded it did: “Thus, we conclude that the conflict between [the

14 Here, the state courts presumed the actual conflict was waivable, without even

making the determination, as required by South Carolina’s Supreme Court Rules,

whether the conflict is “consentable.” See App.370 (quoting South Carolina Supreme

Court Rule 407, Rule 1.7, Comment 2).

15 Fulton also involved an attorney self-interest conflict. Fulton, 5 F.3d at 612–13.

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attorney]'s representation of [the defendant], on the one hand, and his ethical

obligation to the [police union] as his client and his self interest in the [police union’s]

retainer, on the other, was so severe that no rational defendant in [the defendant]'s

position

would

have

knowingly

and

intelligently

desired

[the attorney]'s

representation.” Id. at 96 (citing Fulton, 5 F.3d at 613 (“[N]o rational defendant would

knowingly and intelligently be represented by a lawyer whose conduct was guided

largely by a desire for self-preservation.”); United States v. Arrington, 867 F.2d 122,

129 (2d Cir. 1989) (“upholding district court’s disqualification of attorney ‘saddled’

with serious conflict where allowing waiver would have required defendant to

‘forego[] the presentation of . . . evidence that would [have been] of great assistance”)

(alterations in Schwarz). “In sum, we hold that Schwarz’s counsel suffered an actual

conflict, that the conflict adversely affected his counsel's representation, and that the

conflict was unwaivable. Accordingly, we are required to vacate Schwarz’s conviction

in the first trial and remand for a new trial.” Id. at 96–97.

Similarly, a Virginia capital case involved an attorney self-interest conflict

stemming from counsel’s contract with a third-party payer. Stitt v. United States, 369

F. Supp. 2d 679, 691–92 (E.D. Va. 2005), aff’d, 441 F.3d 297 (4th Cir. 2006), opinion

recalled, 459 F.3d 483 (4th Cir. 2006) and aff’d, 552 F.3d 345 (4th Cir. 2008). Counsel

was “not credible in answering questions about the source of the funds, his

expenditures, and his record-keeping.” Id. at 692. The conflict arose because counsel

never discussed with the defendant about his intention to engage experts because he

presumed the family would not be able to pay for them and he did not try to obtain

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court-appointed experts (though he knew that route was available) because he

wanted to shield from government inquiry the source of his funding. Id. at 695. This

was admittedly for the attorney’s personal financial interest. Id. at 694. In federal

habeas, the district court found that counsel’s decision to shield his funding by

refraining to seek court-funded experts created an actual conflict, and that the

conflict adversely affected the representation, noting, “[S]uch an actual conflict of

interest may never be harmless error.” Id. at 691 (quoting Swarts, 975 F.2dat 1048)

(alteration in Stitt). The district court emphasized that once an actual conflict is

found, all that remains is to determine whether it the actual conflict adversely

affected “the performance of counsel’s defense team.” Id. at 694.

Here the conflict adversely affected the representation because “[t]he failure of

counsel to undertake some professional duty on behalf of his client because of the

conflict of interest amounts to an adverse effect.” Id. (citing United States v. Tatum,

943 F.2d 370, 376 (4th Cir. 1991)). Ultimately, the decision to present just one mental

health expert and no mitigation experts or investigators was “solely a choice made

because of the financial situation,” and “[t]his is not a reasonable basis for the

decision, because the circumstances suggest that [the attorney] could have obtained

court-appointed experts.” Id. Nor did other members of the team do anything to cure

the prejudice caused by the conflict. Id. In order to protect his reputational interests,

Diggs doubled-down on the defense he knew to be untenable under South Carolina

law, and which dramatically departs from the standard of care in developing and

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presenting evidence of Stanko’s brain injuries in a humanizing and sympathetic

manner.

B. If the Conflict Was Waivable, Stanko Could Not Have Knowingly,

Voluntarily, and Intelligently Waive It.

The Fourth Circuit affirmed the District Court’s finding that the state court

deemed reasonable Stanko’s purported waiver of the conflict, even though it was well

known Stanko suffers significant brain impairments and he was never properly

advised by anyone—not conflict-free counsel, nor Diggs, nor the trial court, nor PCR

counsel in the Georgetown County case—as to the consequences of the conflict,

specifically that Diggs would repeat his NGRI strategy, a method of litigating

Stanko’s brain impairments far outside the norms of presenting such a capital

defendant.

It is simply impossible to prove Stanko received the effective assistance of

counsel in handling trial counsel’s conflict by pointing to ostensible process he

received without the advice or even presence of any conflict-free counsel. While it was

certainly proper to exclude Diggs from an inquiry into his conflict (other than as a

witness), it was not proper to conduct such proceedings without providing Stanko the

assistance of counsel.

In fact, the “in-depth hearing on the matter on March 4, 2009” also illustrates

the problem of the overlapping duties of the court and Diggs. Diggs was a material

witness to the inquiry into his conflict. App.382–383. He could not be present in that

role and simultaneously act as Stanko’s counsel.

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Diggs had his own duty “to avoid conflicting representations and to advise the

court promptly when a conflict of interest arises during the course of trial.” Cuyler,

446 U.S. at 346. Diggs also had duties to determine whether the conflict was

“consentable,” and to refer neutral counsel to advise Stanko on the ramifications of

the conflict. App.370–371 (and ethical rules cited therein).

But presuming the conflict was waivable, the District Court endorsed the trial

court’s waiver process without acknowledging that Stanko’s alleged waiver was

provided without the effective assistance of counsel. See App.384. Stanko was never

advised of the consequences of waiving the conflict, and in particular of the fact that

Diggs’s performance in the Georgetown County case fell far outside the norms of

professional practice, and that other attorneys proceeding within the norms would

present evidence of his brain trauma and resulting impairments in a humanizing and

sympathetic manner. The court simply ascertained that Stanko wanted Diggs to

continue (while overlooking that even Stanko’s purported consent assumed Diggs

would learn from his mistakes in the Georgetown County case although at his

appointment, Diggs assured the court he would rely entirely on the mitigation

evidence developed in Georgetown County, and indeed that he meant to pursue the

same failed strategy).

Additionally, the court failed to consider whether Stanko’s history of brain

traumas and resulting impairments interfered with his capacity to knowingly,

voluntarily, and intelligently waive the conflict.

CONCLUSION

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For the foregoing reasons, this Court should grant the petition for writ of

certiorari and either call for briefing and oral argument or summarily reverse the

opinion below and remand for further proceedings.

Respectfully submitted,

/s/ E. Charles Grose, Jr.

E. CHARLES GROSE, JR. (Fed ID 6072)

The Grose Law Firm, LLC

305 Main Street

Greenwood, SC 29646

(864) 538-4466 (tel)

/s/ Joseph J. Perkovich

JOSEPH J. PERKOVICH

Counsel of Record

Phillips Black, Inc.

PO Box 3547

New York, NY 10008

212.400.1660 (tel)

888.543.4964 (fax)

j.perkovich@phillipsblack.org

/s Joseph C. Welling

JOSEPH C. WELLING

Phillips Black, Inc.

100 N. Tucker Blvd., Ste. 750

St. Louis, MO 63101

314.629.2492 (tel)

888.543.4964 (fax)

Counsel for Applicant/Petitioner

January 23, 2025

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