Opposition Brief — Mikal Mahdi, Petitioner v. Bryan Stirling, Director, South Carolina Department of Corrections

No. 24-6933

IN THE

SUPREME COURT OF THE UNTED STATES

MIKAL D. MAHDI,

Petitioner,

v.

BRYAN P. STIRLING, Commissioner,

South Carolina Department of Corrections,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

AND APPLICATION FOR STAY OF EXECUTION

** Execution Scheduled for April 11, 2025 @ 6:00 p.m. **

*counsel of record

ALAN WILSON

Attorney General of South Carolina

DONALD J. ZELENKA

Deputy Attorney General

*MELODY J. BROWN

Senior Assistant Deputy Attorney General

J. ANTHONY MABRY

Senior Assistant Attorney General

RICHARD B. LARRABEE

Assistant Attorney General

P.O. Box 11549

Columbia, South Carolina 29211

(808) 734-6305

Counsel for Respondent

*CAPITAL CASE*

Death-sentenced inmate Mikal Mahdi asserts that his execution would be

unjust because his sentencing judge did not hear certain background mitigation

evidence; however, the testimony from lay witnesses Harris, Wilson, and Smith that

he relies upon was presented and considered in the 2009 state post-conviction relief

action as part of the claim that counsel prematurely ended the mitigation

investigation. The state court found on an extensively developed record neither

deficient performance nor prejudice under Strickland v. Washington, 466 U.S. 668

(1984). That adjudication was later reviewed again under 28 U.S.C. § 2254. This

Court denied petitions for review from each adjudication. Both adjudications were

reviewed by the Supreme Court of South Carolina in determining whether Mahdi met

the heightened standard for original jurisdiction habeas corpus, and, on April 7, 2025,

the state supreme court resolved Mahdi did not. The question presented is:

QUESTION PRESENTED

Should this Court dismiss the petition for lack of jurisdiction when the

Supreme Court of South Carolina applied its state law test for evaluating original

jurisdiction habeas corpus petitions to deny Mahdi’s petition; or, alternatively, should

this Court deny the petition when Mahdi seeks to re-litigate a fully developed but

rejected claim of ineffective assistance when this Court previously considered the

claim in denying Mahdi’s prior petitions to this Court following the denial of state

post-conviction relief and the denial of federal habeas corpus relief, see Docket Nos.

16-741 and 22-5536.

TABLE OF CONTENTS

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

TABLE OF CONTENTS ........ccccsccssesseessessnecseenseecesacecseceeecassoneesseeeescseesarecnesecenaseessaees ii

TABLE OF AUTHORITIES 000. cccsscsssessessessesecsecsecsessecsecsessesseceesaecaseaeeseeeeeaecnesaeenesas iv

INTRODUCTION... ceccecescssessneesseeneessesseeenesenesscensssssesanecseseseeenscuccasesanecssesecsusssessaees 1

STATEMENT OF JURISDICTION. ........cccccscssssseecscceseeeseesseeneeeseaeseesearesseeseceaesseecsseeas 2

STATEMENT OF THE CASE occ ccescscessesecsesaessesseeneenescesavensensesseesensensensenssetsnsseeasens 2

A. Facts of the Crime......cccccceccseccssecnecenveneeeeaeseeeenneeneeeeeseaee sea seeeeegea ers 2

B. Relevant Procedural History ........c.cccccccssscssscesesecesseceseccesseesessecseeessneesseees 6

1. Trial Level Proceedings 2.00... .csscssscestecettecesteeseeceesseseaseeeeeesasensee 6

2. Direct Appeal 0.0... eeccesssccsseoetseessecceenecesasecseeeeeneessseessaeesereesseeeesee 8

3. State Collateral Proceedings and Appeal ..........:cccsccsssssserseseeseeees 8

4, Section 2254 Habeas Corpus Action in District Court

And appeal to the Fourth Circuit 0.0.0... ccesceseserecseeeeeeseeseennees 10

5. State original jurisdiction petition for writ of

Habeas Corpus ......cecccccsssccntccessecssssecsscesseessseseeeseeesaeseseceseesenseesee 15

REASONS WHY THE PETITION SHOULD BE DISMISSED OR DENIED AND

THE APPLICATION FOR STAY DENIED... ececccscssesseeetesssceneesseenesenecseseaeescense 16

I. Mahdi has failed to show a ruling based on federal law for this

Court to review, thus, fails to establish the necessary

Jurisdiction requireMent ..........cccsccccccsesssecesssnccescesneeeccsscsecessesseessenssesesaes 16

Il. The petition here constitutes little more than an untimely

petition for rehearing of the Court’s previous orders denying

Mahdi’s petition for certiorari review .........cccecscscccesceseeesseeeseeeeeteeeeneeteee 22

Ii. The state and federal records of Mahdi’s prior actions

Demonstrate that the state PCR court’s rejections of Mahdi’s

ii

ineffective assistance of counsel claim regarding the mitigation

Investigation was reasonably rejected under this Court’s precedent...24

IV. Having failed to show a reasonable probability that the petition

Could be considered sufficiently meritorious to support a grant

of the petition, the application for a stay of execution should

likewise be denied ...........ccesssssessesseseescsesseteceseesscseesesssesessensessesssssecseeeeess 31

CONCLUSION . 0... ce ccecccssessscssssesceseeesccsseessceseesseessaesssssecssseeuscesscsccssssseassssuenessessanenssenes 33

APPENDIX

SENTENCING ORDER, December 8, 2006...0.....ccccccsscseecccesccescesescecensccnaseeeneeees

DISTRICT COURT ORDER, September 24, 2018 ........cceseesecessseeesees

PETITION FOR WRIT OF CERTIORARI (PCR appeal)

iii

TABLE OF AUTHORITIES

Cases:

Bobby v. Van Hook,

558 U.S. 4 (2009)... eeeecccesecsseessceseeseeesecesscesccsecsecessesscesscssessesevasesssenseetserseess 14, 28

Burger v. Kemp,

483 U.S. 776 (1987) .....ecececcsseeseescesseseeseesessecsesscssesacascsecsssesscsusesscsesscucsscsecsveeenseatens 30

Butler v. State,

397-5, H.20:87 (G:C, 1990) sccssexevesseeseveaseaneacesarceceveneserecvarsmexespeerrmesmavercnesieresc, 17,19

Coleman v. Thompson,

BOL U.S: 122 (V99D wccsessevessccsseaccnrvecasssscaveenuaveesvesnvesmenseracenneeemnieenl 20, 22

Council v. State,

670.S.E.2d 356 (S.C. 2008) siccswssssssessvesavesveseeasesvnavseaescvessevaesicceveaevewsasvesssaseesssncteecernnes 27

Elk Grove Unified Sch. Dist. v. Newdow,

BAZ WS D (2004)) eccsvesssenveneesscsnversyvucusermre wen ves vee vay ae saws nae Gye NUE TST ANOTETTOALOTRET Se odneaee 19

Harrington v. Richter,

662 Us .086"(QOU1) sccsssees veseepsasvsvesercsuescerucesssvetesee suisse Wusteiisde cisotsenisdate rneencoensenceonenneed 30

Harris v. Reed,

ASO USs 20D (L989) os ccscesceewverewsncesveusvssayeenwesgag7s aaebusesuaesaiaiesei side deidane Uinenenennsensensnaees 20

Hollingsworth v. Perry,

558 UES 183: (2010) scsssseceveevsevsnevexeranseeveserrasnseesaseavanevSeusis sake SRN TEES neoaneearonnennnnns 31

John v. Paullin,

231 .Si: 583. CL OLB) ccvvsseovescesssvesesvenscercansaieecseunsaavssieweewssiensev as cdacdsinesd dnareeneeaveenconn 18, 22

Key v. Currie,

406 S.16.2d 356 (S.C: 1991) scsssscvescevsssssessccsesasscsevessasexssasncesucseonnconenseeneennnaceoeegersorensere 17

Mahdi v. South Carolina,

B80 U.S; L116 (2017) ssssassssevsssecersseenasessecczazeceasissacesaaacconnsieeccoaneceoacsoeneeanaceneveeareensseres 10

Mahdi v. South Carolina,

586-U:8 1089 (QOL 8) sevceccvsessusensncessvesavessueesssiviiasiiseiiseis saissadeadesesdiisaisoseacreneresnnnenenes 10

Mahdi v. State,

678 S.E.2d 807 (2009) 0. eeccceccssseesceseceseesscessecseceseesseesesssecessessesssesseseeesesees 2,3,4,8

Mahdi v. Stirling,

20 F.4th 846 (4th Cir. 2021) ooo. cccccccsccesseceesseseseceesseeessecesseeesseee 11, 12, 18, 14

Mahdi v. Stirling,

143 S. Ct. 582 (2028)... eee ecccescesscesecssccsscesscesecsecesecesecsscesecesecesscssecsescateeseesaseasesseens 15

McWee v. State,

593 S.H:20 456 (Gi Cx 2004) swcsscsesscsrezesseczeseessessasvau sien rasta weseiuesiseniasteasvRHISeeISU Sea aheenns 17

Moore v. Stirling,

8778.20 423 (S.C 2022) wessvcssccevcsencaeseversxcsevsssesuvapeseseseveee ese OE 17, 18

Owens v. Stirling,

904 S.B.2d 580 (G:C 2024) secs secccrsevusscevvenerveeuscscaseseuessevvesseiaiasseoeeRRaie eNO 15

iv

Sigmon. v. Stirling,

956 F.3d 183 (4th Cir, 2020)... ccecssssssssssssesseeseeseesenceeecsssersessscscessseaseassactactaceaees 29

Simmons v. South Carolina,

512 US. 154 (1994) ec ccesesssesseesensessenscssesecssensesscesesessussscssesecssesserserserseansauteaeeess 7

Simpson v. State,

829 8.C. 48, 495 S.H.2d 429 (1998) oc ccssccscssceeeceesecsecsrcssessessessessessessesrvserseseaeas 21

State v. Bellamy,

859 S.H.2d 63 (S.C. 1987) ce cesccssesccscssscssescesecsecsscaecsscssseesssssessssesssccassessaseassacsacesereees 7

State v. Plath,

313 S.H.2d 619 (G.C. 1984) vo. ccecccsccsecsecsresesseceeseessecnessesscssesssssssecsessesvecseerecsnesseeeees 7

State v. Torrence, ,

406 §.H.2d 815 (S.C. 1991) oo. eescessssssesessesessccscsesesensessesscssssesseassssssssersersseevareasenses 7

Strickland v. Washington,

466 U.S. 668 (1984)... ececcccsccssessesccssssessecsscseceessessecsessessessessesssvassansasssasaavavens passim

Tucker v. Catoe,

552 S.B.2d 712 (S.C. 2001) oo... eeccccesseeccesseesecsseeseccaeeesscsessesesseessecsecessecsecessssnessesass 17

Wiggins v. Smith, :

5389 U.S. 510 (2008) 0c essceececscesceesssseeecsssneecsaeeeeecseesateaeesnecseesessusesessesseeessees 26, 27

Williams v. Ozmint,

494 F.3d 478 (4th Cir. 2007)... eccesccsscsssecnsessecseseeessssnecseseateesseseecssseessessseecesseees 29

Williams v. Taylor,

529 U.S. B62 (2000)... ceceecccscsseesseessessecsssessestessssesecssssseesssseeseesseseseeases 9, 28, 27, 31

Williams,

Se ee cr 12,13

Wilson v. Moore,

178 F.8d 266 (4th Cir.1999) 0... cccccssssecsecssscseessecceeessecseeessesseesssesecessesserseeees 2, 19, 20

Wong v. Belmontes,

558 U.S. 15 (2009)... cecsecscesseecsscesecsecesecesecsecsseesssesasensssaseeseeseevssssascesscersesseseee 26, 30

Yates v. Aiken,

B49 S.E.2d 84 (S.C. 1986)... eesccsscesseescesecesecsseeseccsseesscsssscsseseecssseessesssesessesenecssesuee 20

Constitutional Provisions:

Article V, § 5, S.C. Constitution... ceecccccscsccscessccccoseeneccesscccecscsccecessasevessnsceussenseesersasess

Statutes:

28 U.S.C. § 1257 (a) ec cecceccccssccesseeeesseeseecesseesseeceescesescesseccececessesessssarsuavsessscssssessussassesnees 2

28 ULS.C,. § 2254 ooo ccc ceccssscccssecesscecseecesseessussceccesescesesseseecessecserascessevsenaasssess i, li, 4, 19

Court Rules:

Sup.Ct. Rule 15.20... ccccccsssessesscsscssessesscessssssssssseusscescsrsvecsacceucsscsavaseeesacsacsaceseseesenaee 16

Sup.Ct. Rule 44. 2

vi

INTRODUCTION

Petitioner Mikal Mahdi was sentenced to death on December 8, 2006, for the

murder of Capt. James Myers. After nearly twenty years of challenges in state and

federal courts, his execution is now scheduled for Friday, April 11, 2025. Mahdi

makes this late request to stay his execution to allow this Court to consider the

sufficiency of his original mitigation case, but that is a subject that has been

thoroughly covered and addressed in his prior litigation in state and federal courts in

multi-layers of review.

In his present petition, Mahdi specifically claims that his trial counsel missed

mitigation from three background-focused witnesses which may have persuaded the

state court judge who sentenced him to have imposed a life sentence instead. It is not

a new claim; he raised it in state and federal collateral proceedings. And the evidence

was considered for its potential impact in sentencing under the standard Strickland

test. In fact, this Court denied Mahdi’s petitions for certiorari review following the

denial of both state post-conviction relief and federal habeas corpus relief. And

rightly so. The claim shows an ordinary application of Strickland after a factintensive inquiry. That fails to show a claim worthy of a grant of certiorari review.

Mahdi’s recycled argument is facially insufficient to warrant additional review and

certainly insufficient to support a stay of execution.

In sum, Mahdi’s attempt to cast this case as an example of the denial of

consideration of his best case in mitigation is unfounded. Mahdi’s offered mitigation,

as expanded and considered in collateral actions, did not overcome the heinous

brutality of the murder and the history of violence that shows the true character of

Mikal Mahdi.

The petition should be denied.

STATEMENT OF JURISDICTION

Mahdi claims jurisdiction under 28 U.S.C. § 1257(a). On April 7, 2025, the

Supreme Court of South Carolina denied Mahdi’s petition for a writ of habeas corpus

in its original jurisdiction. Respondent submits that the Court lacks jurisdiction

because the Supreme Court of South Carolina rejected review on the basis of state

law grounds: its test for determining whether to exercise its original jurisdiction to

grant relief. See Wilson v. Moore, 178 F.3d 266, 275-76 (4th Cir.1999) (a

determination by the Supreme Court of South Carolina not to exercise its original

jurisdiction is not a merits ruling on the underlying claim presented).

STATEMENT OF THE CASE

A. Facts of the Crime:

Mahdi’s South Carolina crimes were part of a multi-state spree in July 2004

beginning in Virginia and ending in Florida. Mahdi’s callous murder of a convenience

store clerk in North Carolina was captured in chilling detail on store surveillance.

Mahdi continued the violence into and across South Carolina. That Supreme Court

of South Carolina summarized the facts in the direct appeal review, Mahdi v. State,

678 S.E.2d 807, 807-08 (2009). However, in an unusual addition, then Chief Justice

Jean Toal authored a concurring opinion to “record the facts of this particularly

heinous case.” Id. at 808.1 The Chief Justice set out an expanded version of the facts

that more fully describes Mahdi’s crimes and his extraordinary brutality:

On July 14, 2004, Petitioner, then a resident of Virginia,

embarked upon a crime spree that would span four states.

Petitioner stole a .380 caliber pistol from his neighbor, a set

of Virginia license plates, and a station wagon. Petitioner

left Virginia and headed to North Carolina.

On July 15, Petitioner entered an Exxon gas station in

Winston-Salem, North Carolina armed with the .380

pistol. Petitioner took a can of beer from a cooler and placed

it on the counter. The store clerk, Christopher Jason Boggs,

asked Petitioner for identification. As Boggs was checking

Petitioner’s identification, Petitioner fatally shot him at

point-blank range. Petitioner fired another shot into Boggs

as he lay on the floor. Petitioner then attempted

unsuccessfully to open the store’s cash register. Petitioner

left the store with the can of beer, and headed to South

Carolina.

Early in the morning of July 17, Petitioner approached

Corey Pitts as he sat at a traffic light in downtown

Columbia, South Carolina. Petitioner stuck his gun in

Pitts’ face, forced him out of his car, and stole Pitts’ Ford

Expedition. Petitioner replaced the Expedition’s license

plates with the plates he had stolen in Virginia, and headed

southeast on I-26.

About thirty-five minutes down the road, Petitioner

stopped at a Wilco Hess gas station in Calhoun County and

attempted to buy gas with a credit card. The pump rejected

the card, and Petitioner spent forty-five minutes to an hour

attempting to get the pump to work. Due to his suspicious

behavior, the store clerks called the police. Aware that the

clerks’ suspicions had been alerted, Petitioner left the

Expedition at the station and fled on foot through woods

behind the station.

1 Then Chief Justice Toal of the state court explained the necessity of the addition as follows: “I

recite these facts to emphasize the egregious nature of Petitioner's crimes. In my time on this Court, I

have seen few cases where the extraordinary penalty of death was so deserved. I therefore concur with

the majority and vote to affirm Petitioner’s conviction and sentence.” 678 S.E.2d at 809 (Toal, C.J.,

concurring).

About a quarter to half mile from the station, Petitioner

came upon a farm owned by Captain James Myers, a

thirty-one year veteran law enforcement officer and

fireman. Petitioner broke into a work shop on the Myers

property. Once inside the work shop, Petitioner watched

television and examined Myers’ gun collection. Petitioner

found Myers’ shotgun and used the tools in the shop to saw

off the barrel and paint it black. Petitioner also took Myers’

.22 caliber rifle and laid in wait for Myers.

That day, Myers had been at the beach celebrating the

birthdays of his wife, sister, and daughter. Myers had

visited with his father before returning to his farm. Upon

arriving at the farm, Myers stopped by the work shop,

where he was confronted by Petitioner. Petitioner shot

Myers nine times with the .22 rifle. Petitioner then poured

diesel fuel on Myer’s body and set the body on fire.

Petitioner stole Myers’ police-issued truck, and left with

Myers’ shotgun, his .22 rifle, and Myers' police-issued

assault rifle.

Later that evening, Myers’ wife, also a law enforcement

officer, became worried when Myers did not return home.

Mrs. Myers drove to the work shop and discovered Myers’

burned body lying in a pool of blood.

Petitioner escaped to Florida, where he was spotted by

police on July 21 driving Myers’ truck. Fleeing the police,

Petitioner abandoned the truck on foot in possession of the

assault rifle. When cornered by police, Petitioner

abandoned the rifle and was eventually taken into custody.

Id. at 809.2

During sentencing, the State presented evidence of other acts of violence,

summarized by the sentencing judge as follows:

2 The district court, in review under 28 U.S.C. § 2254, noted this expanded version of the facts

in its opinion. (BIO App. 13a-15a). The district court added, by footnote, that Mahdi had also “pled

guilty to first-degree murder in the death of Mr. Boggs and received a life sentence in North Carolina.”

(BIO App. 14a n. 1).

On January 7th, 1998, while in the Virginia

Department of Juvenile Justice for grand larceny and

breaking and entering, Mr. Mahdi, then 14 years of age,

conveyed to a counselor doing an evaluation profile that his

only strength was robbing people. On June 30th, 1998, Mr.

Mahdi, then 15 years old, was involved in an over 9 (nine)

hour standoff with the Brunswick County, Virginia

Sheriffs Department who was attempting to execute an

order on the defendant to return him to a juvenile

detention facility when Mr. Mahdi made the comment,

according to Brunswick County Sheriff James Woodley,

that, “I’m going to kill a cop before I die.” On November 23,

2000, the Defendant, then 17 years of age, attempted to

grab the gun of a Richmond, Virginia Police Officer who

was attempting to arrest Mr. Mahdi on a vandalism charge

for slashing his mother’s automobile tires. During this

arrest, Mr. Mahdi commented, according to Officer Mike

Koehler, that he “should have killed that crazy bitch,”

referring to his mother. On April 17th, 2001, then 18 years

old, while attempting to break into an apartment in

Richmond, Virginia, Mr. Mahdi stabbed Moises Rivera, a

maintenance supervisor, five (5) times, resulting in a

felony conviction for malicious wounding. Mr. Mahdi

received a fifteen (15) year prison sentence suspended to

the service of thirty-nine (39) months to be followed by

fifteen (15) years of probation.

During each of these periods of incarceration, Mr.

Mahdis behavior was maladaptive, assaultive and

demonstrated an utter disrespect for authority, including

threatening the life of a Detention officer.

Following Mr. Mahdi’ s release on probation on May

12, 2004, his criminal activities escalated during a crime

spree that resulted in his killing Christopher Jason Boggs

during a robbery of an Exxon Station in Winston-Salem,

North Carolina on July15, 2004. Mr. Mahdi shot Mr. Boggs

twice in the face at point blank range with a weapon that

had been stolen from his grandmother’s neighbor's house

in Lawrenceville, Virginia. On July 18, 2004, three days

later at approximately 3:30 a.m., Mr. Mahdi carjacked

Corey Pitts’ automobile in Columbia, South Carolina using

a chrome plated handgun. Following his murder of Captain

Myers, Mr. Mahdi was apprehended on July 21, 2004 in

Satellite Beach, Florida, after jumping out of Captain

Myers’ city-issued truck armed with a Ruger .223 assault

rifle belonging to the Orangeburg Department of Public

Safety. Following his arrest, Mr. Mahdi stated that,

according to Sergeant Darren Frost of the Satellite Beach

Police Department, that he did not shoot Sergeant Frost

only because the gun was stuck in a three shot burst and

he did not think he could shoot him, the other cop, referring

to the other police officer, and the fing dog. While in

safekeeping in the South Carolina Department of

Corrections awaiting this trial, Mr. Mahdi made numerous

threats to kill various department employees.

(BIO App. 5a-7a).3

B. Relevant Procedural History:

1. Trial Level Proceedings.

The Calhoun County grand jury indicted Mahdi on August 23, 2004, for

Murder, Grand Larceny greater than $5,000, and Burglary, second degree, violent.

The State issued a notice of intent to seek the death penalty. The Honorable Clifton

Newman was assigned to hear the capital proceedings. Carl Grant, Esq., and Glenn

Walters, Esq., were appointed to represent Mahdi. Mr. Grant was in a serious

motorcycle accident in the early summer of 2006 and was relieved as counsel. Josh

Kroger, Esq., was appointed as second chair.

From November 26-29, 2006, a jury of twelve jurors and four alternates were

selected and impaneled. However, prior to the swearing of the jury, on November 80,

3 The district court also summarized the evidence of Mahdi’s past violent behavior and threats

of violence, including the near murder of “Moises Rivera, whom Mahdi almost stabbed to death,” and,

quoted various threats Mahdi made in post-arrest detention, including, at a disciplinary hearing for

hitting an officer, that he intended to “kill that mother f****** officer,” and, while complaining that he

was not responded to in a timely fashion, a threat to kill or have someone else kill the grievance

coordinator. (See BIO App. 46a, 48a-49a).

2006, Mahdi waived his right to a jury on guilt and sentencing and entered pleas of

guilty to all charges, which Judge Newman accepted. Mahdi admitted to all the facts

supporting the plea including: that he killed Capt. Myers with malice aforethought;

that he entered a building belonging to the victim without consent and with intent to

commit a crime and while in or immediately after leaving the building was armed

with a deadly weapon; and used the weapon during the burglary to commit the

murder of the victim.

A separate sentencing proceeding was held before Judge Newman beginning

on December 4, 2006. On December 8, 2006, Judge Newman filed his written

sentencing order and read the order into the record. Judge Newman found the State

proved two statutory aggravating circumstances beyond a reasonable doubt.* After

considering all the evidence in extenuation, aggravation, and mitigation of

punishment, Judge Newman sentenced Mahdi to death.5 In concluding his Order,

Judge Newman stated as follows:

In extinguishing the life, hope, and dreams of

Captain Myers in such a _ wicked, depraved and

conscienceless manner, the Defendant Mikal Deen Mahdi

also extinguished any justifiable claim to receive the mercy

he seeks from this Court.

‘ In previously discussing South Carolina’s capital sentencing procedure, this Court has

observed that “the State’s evidence in aggravation is not limited to evidence relating to statutory

aggravating circumstances.” Simmons v. South Carolina, 512 U.S. 154, 162 (1994). In shorthand,

South Carolina is not a “weighing” state (as the old term goes). The State does not have a system

where the sentencer is obliged to weigh statutory aggravating circumstances and mitigating

circumstances one against the other. State v. Bellamy, 359 S.E.2d 63, 65 (S.C. 1987), overruled by

State v. Torrence, 406 S.E.2d 315 (S.C. 1991) (‘A jury should not be instructed to ‘weigh’ the

aggravating circumstances against the mitigating circumstances.”) (citing State v. Plath, 313 S.E.2d

619 (S.C. 1984)).

5 Mahdi was also sentenced to consecutive terms of 15 years for burglary and 10 years for grand

larceny. (R. 1741, 1825).

In considering all of the evidence in this case, I have

concluded that the only appropriate punishment for the

murder of Captain James E. Myers is death.

(BIO App. 11a).

2) Direct Appeal.

Mahdi did not timely appeal; however, the Supreme Court of South Carolina

granted an original writ to allow for briefing and direct appeal review. Mahdi,

represented by counsel, raised one issue:

Did the trial judge improperly consider Mikal Mahdi’s

initial exercise of his constitutional right to a trial by jury

in imposing a death sentence?

(See BIO App. 16a).

On June 15, 2009, the state supreme court not only affirmed Mahdi’s plea and

sentence but also conducted the required proportionality review. Mahdi v. State, 678

S.E.2d 807, 808 (S.C. 2009). Mahdi did not seek certiorari review from this Court at

that juncture.

3. State Collateral Proceedings and Appeal.

Mahdi filed his initial state post-conviction relief (“PCR”) application on

August 18, 2009. The Honorable Doyet Early was appointed to preside over the

collateral action. Teresa Norris, Esq., and Robert Lominack, Esq., were appointed to

represent Mahdi. PCR counsel filed amended applications raising multiple issues,

including the following relevant to this action:

Ground 10(a)/11(a)(iii): Counsel failed to adequately

investigate, develop, and present mitigation evidence

concerning Applicant’s family, social, institutional, and

mental health history.

(See BIO App. 17a).

On March 9, 2011, a PCR evidentiary hearing was held at the Broad River

Correctional Institution parole hearing courtroom.’ After presentation of testimony

and other evidence, Judge Early took the matter under advisement. Judge Early filed

his Order of Dismissal on January 8, 2013, and an Amended Order of Dismissal on

August 20, 2014, dated August 19, 2014. (BIO App. 18a). Mahdi filed a motion to

alter or amend which Judge Early denied on September 9, 2014. Mahdi appealed.

New counsel joined Ms. Norris in representing Mahdi on appeal: Seth Farber,

Eisq., and Brandon Duke, Esq. Counsel'asked for review of one issue:

Was Petitioner denied the effective assistance of counsel at

his capital sentencing proceeding by trial counsel’s decision

to rely entirely on a single expert witness to present

mitigating evidence about petitioner’s background instead

of calling available lay witnesses who could have provided

detailed and specific testimony in mitigation?

(BIO App. 114a).

On September 8, 2016, the Supreme Court of South Carolina denied the

petition for review. Mahdi sought review from this Court on the following question:

Whether counsel in a capital sentencing proceeding can,

consistent with this Court’s holdings in Williams v. Taylor,

529 U.S. 362 (2000), and its progeny, properly rely

exclusively on expert testimony and forgo calling available

lay witnesses with detailed, firsthand information about

mitigating circumstances in the defendant’s background.

6 The hearing was held inside the facility due to security concerns. Mahdi and a fellow death

row inmate were charged with stabbing a guard while on death row.

9

(BIO App. 19a; see also Sup.Ct. Docket No. 16-741).

This Court denied the petition on February21, 2017. Mahdi v. South Carolina,

580 U.S. 1116 (2017). (See also BIO App. 19a).

4, Section 2254 Habeas Corpus Action in District Court and

Appeal to the Fourth Circuit.

Mahdi, represented by counsel,’ filed a “place-holder” petition which allowed a

stay of execution to exhaust federal remedies; however, he subsequently moved to

stay the federal action to return to state court for a successive PCR action. The district

court denied the motion on October 3, 2017, with leave to re-file if the successive state

action should be allowed to be developed.®

Mahdi subsequently filed an amended petition, and Respondents filed a return

and moved for summary judgment on December 20, 2017. On March 12, 2018, Mahdi

filed a response in opposition and several affidavits outside the state court record

which Respondents moved to strike. In an Order filed September 24, 2018, the district

court granted Respondent’s motion for summary judgment; granted in part and

denied in part the motion to strike (allowing consideration of materials to evaluate

Mahdi’s arguments to excuse default); denied the petition; and declined to issue a

certificate of appealability. (BIO App. 108a-109a). The district court devoted nearly

1 The district court appointed E. Charles Grose, Esq., and John L, Warren, III, Esq. to represent

Mahdi in the federal action. Derek Alan Shoemake, Esq., would later replace Mr. Warren when Mr.

Warren accepted a federal clerkship

8 In Mahdi’s second state PCR action, he argued several issues, but none directly relevant to

this appeal. The action was denied as untimely, successive, barred by laches, and/or res judicata,

collateral estoppel, judicial estoppel, and the principle of “the law of the case” or not cognizable on

post-conviction relief; and, at any rate, without merit. The state appeal was summarily dismissed.

Mahdi filed a petition for writ of certiorari in this Court which was denied on December 3, 2018. Mahdi

v. South Carolina, 586 U.S. 1039 (2018).

10

40 pages to the mitigation issue, carefully comparing the trial and PCR records, (see

pp. 27-66 of the 97 order, BIO App. 89a-78a), and ultimately resolved that the PCR

court reasonably applied this Court’s precedent to the facts of the case, (BIO App.

73a-78a). The district court denied Mahdi’s motion to alter or amend and Mahdi

timely appealed.

After briefing and argument, the Fourth Circuit affirmed the denial of relief

by published opinion issued on December 20, 2021. Mahdi v. Stirling, 20 F.4th 846,

866 (4th Cir. 2021). Relevant to this petition, the Fourth Circuit found:

Mahdi maintains that trial counsel’s performance was

deficient because, “[e]ven though [his] family, friends and

community members were available, trial counsel did not

present a single witness who personally knew [him] or who

could properly bring to light the trauma [he] endured

throughout his childhood.” Opening Br. 62. And though

Mahdi acknowledges that Hammock’s [the trial-level social

worker's] testimony presented some of the troubled details

of his life, he asserts “it was woefully deficient.” Opening

Br. 62-63.

The State suggests Mahdi’s argument “cannot be squared

with the record.” Resp. Br. 33. Reiterating the PCR court’s

determination “that trial counsel made reasonable

investigation into Mahdi’s background,” Resp. Br. 29, the

State emphasizes Hammock’s credentials and testimony

related to the effect Mahdi’s “educational, parental, and

role model issues, and other recognized risk factors ... had

on his development.” Resp. Br. 33-34. Moreover, the State

argues, the district court correctly found the PCR court’s

decision that the evidence presented by non-family lay

witnesses during the PCR evidentiary hearing was

cumulative of that presented during the sentencing

hearing was reasonable.

We agree that trial counsel’s performance was not

deficient. As a threshold matter, Mahdi has presented no

grounds to conclude that the PCR court’s determination

11

that trial counsel “conducted a reasonable and thorough

mitigation investigation and presented what mitigation

they could that was favorable to Mahdi at the time of the

sentencing proceeding,” J.A. 7556, was “sufficiently

against the weight of the evidence,” Williams, 914 F.3d at

312.

Mahdi v. Stirling, 20 F.4th 846, 901 (4th Cir. 2021).

The Fourth Circuit reviewed the state court record, noting that the PCR judge

credited defense counsel’s testimony regarding investigation, and acknowledged that

counsel gathered a qualified team of experts to investigate Mahdi’s background and

reach out to potential witnesses. Id. Notably, Mahdi’s family was not cooperative,

and their later PCR testimony added to the aggravation side of the scales:

For example, Carson and Lawanda testified about Mahdi’s

manipulative behavior, including his frequent malingering

about suicide and the incident when he made a false claim

of abuse in an effort to retaliate against them. Indeed,

Carson told Haas that he “still laughs about this today

because he feels [Mahdi] was just being manipulative and

really wasn't struggling [with suicide].” J.A. 2774. He also

referred to Mahdi as a “demon” based on his behavior. J.A.

2706. Rose described Mahdi's anger and violent conduct as

a child, including “hit[ting his mother] a couple of times.”

J.A. 2288. Sophia testified about an incident where Mahdi

slashed his mother's tires because she would not let him

use her car.

During the PCR hearing, Haas and trial counsel also

testified about their interactions with other members of

Mahdi's family. Shareef spent most of his time during his

meeting with Haas “talking a lot about his ... personal

beliefs,” J.A. 2773, and otherwise “refused to participate,”

J.A. 2837. Vera refused to meet with anyone from the

South Carolina defense team. Saleem would not speak with

them. Nathan was not “helpful at all,” J.A. 2777, and

indeed “was proud of the fact that he had identified his

nephew for the North Carolina authorities,” J.A. 2814. And

Nancy “wanted to brag about the accomplishments of the

12

family. She did not want to address the issues with regard

to her grandson and how he got there.” J.A. 2816. In short,

Mahdi’s family put up road block after road block in

preventing trial counsel's efforts to gather potential

witnesses—family or otherwise—to testify on Mahdi’s

behalf.

Id. at 902.9

As to the narrow group of lay witness that Mahdi wants the Court to limit its

consideration to in this petition:

We also agree with the district court that the PCR court's

determination that “much, if not all, of the evidence Mahdi

offered at PCR regarding his family and social history”

through non-family lay witnesses “was cumulative to the

evidence presented in Mahdi's capital sentencing

proceeding” through Hammock’s testimony and exhibits,

J.A. 7560, was not “sufficiently against the weight of the

evidence,” Williams, 914 F.3d at 312. During the PCR

evidentiary hearing, Mahdi's teachers testified or

submitted affidavits about the significant gaps in his

education, his behavioral outbursts, and Shareef's failures

as a father, though they all acknowledged they knew

nothing about Mahdi’s home life. What’s more, they also

presented negative testimony that hurt Mahdi’s mitigation

efforts. Specifically, they testified about Mahdi's anger and

behavioral issues, including the fact that he used to “draw

pictures of people hanging, the nooses and things like

that.” J.A. 2345.

Smith and Douglas Pond provided testimony concerning

Shareef's troubled behavior in the community, specifically

recounting the incident at the local Whites-only pool.

Sheriff Woodley, who testified and was cross-examined by

trial counsel during the sentencing hearing, submitted an

affidavit about Shareef's violent behavior towards his

mother and Vera as wellas his lack of respect for authority.

2 This reflects a recurring theme in the broader the dig for information — further information

offered in PCR for purposes of showing potential mitigation continued to bring about more and more

evidence in aggravation. See Mahdi, 20 F.4th at 904 (“It is also worth noting that each witness who

testified during the PCR hearing would have likely introduced evidence that would have undermined

Mahdi’s mitigation strategy at sentencing.”).

13

Id. at 903.

And Sharon Pond testified about Shareef's mental health

issues, though she conceded she had never met Mahdi

before and that medical professionals ultimately did not

find any health or major mental illness in Shareef.

The Fourth Circuit agreed that

[t]rial counsel recognized the importance of Mahdi’s family

history and background, which explains why Hammock

alluded to all of it in her testimony during the sentencing

hearing. Specifically, she testified about Mahdi’s “rather

chaotic” childhood, J.A. 1597, including the extensive gaps

in his education. She also testified at length concerning

Shareef's violent and outlandish behavior towards Nancy

and Vera; his reputation for being “at odds with people in

the community, with his own family and with law

enforcement,” J.A. 1610; and his “inability ... to parent

appropriately and correctly,” J.A. 1597. Trial counsel could

hardly be said to have performed deficiently by presenting

evidence that “would have added nothing of value,” Bobby,

558 U.S. at 12, 180 S.Ct. 18, and was cumulative of what

had already been submitted to the trial court.

Id. at 903-904.

The Fourth Circuit further found the PCR court’s determination that Mahdi

failed to show prejudice was likewise reasonable based on the extensive record and

this Court’s precedent such that “even if [the court of appeal] were to reach this

second prong of the Strickland analysis, [it] would still affirm the district court’s

holding.” Id. at 904-905.

Mahdi next filed a timely petition for writ of certiorari.in this Court and raised

the following single issue:

Did the state post-conviction court misapply this Court’s

Sixth Amendment precedent when it held that Mikal

Mahdi’s trial attorneys reasonably ended their

investigation into mitigating evidence.

14

(Docket No. 22-5536, Petition filed September 6, 2022).

This Court denied the petition on January 9, 2023. Mahdi v. Stirling, 143 S.

Ct. 582 (2023).

5. Original Jurisdiction State Habeas Corpus Action.

Though Mahdi exhausted his ordinary state and federal remedies with this

Court’s denial of his 2022 petition for writ of certiorari to review the Fourth Circuit

opinion, the Supreme Court of South Carolina stayed the issuance of a notice of

execution until it decided a challenge to the methods of execution statute. The opinion

in the methods case was issued on July 31, 2024. See Owens v. Stirling, 904 S.E.2d

580 (S.C. 2024), reh'g denied (Aug. 16, 2024). On August 31, 2024, the Supreme Court

of South Carolina issued an order listing Mahdi as one of the death-sentenced

inmates who could then have a notice issued. Pursuant to the terms of that order,

Mahdi’s notice was issued on March 14, 2025.

On March 18, 2025, Mahdi filed a petition for writ of habeas corpus in the

original jurisdiction of the Supreme Court of South Carolina. One of his two claims

alleged trial counsel was ineffective in investigation and presentation of lay witness

mitigation testimony at sentencing. The State filed a return on March 26, 2025, and

submitted the petition should be denied and argued that Mahdi had litigated the

mitigation claim previously, including relying on some of the same lay witnesses and

experts he offered in support of his arguments in that petition. The State argued

Mahdi did not meet the stringent requirements for original jurisdiction habeas corpus

review. On April 7, 2025, the state supreme court issued an order that found just

15

that: “Mahdi has not met his burden of showing a constitutional violation that, in this

setting, constitutes a denial of fundamental fairness shocking to the universal sense

of justice.” (Pet. App. 12a). Thus, the court denied Mahdi’s petition. (Pet. App. 12a).

REASONS WHY THE PETITION SHOULD BE DISMISSED OR DENIED

AND THE APPLICATION FOR STAY DENIED

The petition should be denied as Mahdi cannot meet the jurisdictional

requirements for review by this Court. However, even if he could establish a

jurisdictional basis, the claim he seeks to have reviewed is one already rejected by

state and federal courts after fact-intensive inquiries. Having received multiple levels

of review of essentially the same argument,!° Mahdi fails to show that this Court

should now engage in a fact-intensive and redundant review. Notably, this Court has

previously rejected the claim for review in two other petitions. It should do so again.

I. Mahdi has failed to show a ruling based on federal law for

this Court to review, thus, fails to establish the necessary

jurisdiction requirement.

On April 7, 2025, the Supreme Court of South Carolina denied Mahdi's petition

for writ of habeas corpus in the original jurisdiction concluding that he failed to carry

“his burden of showing a constitutional violation that, in this setting, constitutes a

denial of fundamental fairness shocking to the universal sense of justice,” i.e., the test

10 Cognizant that misstatements in the petition should be addressed in the brief in opposition,

see Sup. Ct. Rule 15.2, Respondent underscores that Mahdi’s assertions that (1) “[i]f this Court does

not grant certiorari review and stay Mahdi’s execution, he will be put to death even though his trial

attorneys mishandled his capital defense,” and (2) “the state courts failed to remedy these deficiencies”

rather “addressed them in ways that violate federal law,” are in no way reconcilable with the record.

Mahdi may not agree with the resolutions, but his trial attorney’s investigation and presentation of

the mitigation case have been reviewed and his challenges considered in state and federal action. The

state PCR court found no deficiency and no prejudice under the proper Strickland v. Washington

standard.

16

for original jurisdiction state habeas corpus petitions. (Pet.App. 6a). Mahdi

represents to this Court that it is this ruling that should be reviewed. (Pet. 1).

However, Mahdi has shown only that the state supreme court applied its own state

court test for original jurisdiction habeas corpus matters. To be sure, Mahdi

presented a petition; he simply presented a petition that is not entitled to merits

review on the claims. It is a review outside the ordinarily and readily available review

by the state courts.

The Supreme Court of South Carolina has, under the state constitution, the

authority to issue writs in its original jurisdiction. Article V, § 5, S.C. Constitution.

However, the court primarily functions as an appellate court. See, e.g., Key v. Currie,

406 S.E.2d 356, 357 (S.C. 1991). A petition for original jurisdiction federal habeas

corpus must overcome the longstanding rule that “a writ of habeas corpus is reserved

for the very gravest of constitutional violations, ‘which, in the setting, constitute[ ] a

denial of fundamental fairness shocking to the universal sense of justice.’ ” Moore v.

Stirling, 871 S.E.2d 423, 429 (S.C. 2022) (citing Butler v. State, 397 S.E.2d 87, 88

(S.C. 1990)). The “in the setting” requirement refers not just to a presence or absence

of error, but consideration is made as to whether there was “a meaningful opportunity

to protect” defendant’s “rights.” Tucker v. Catoe, 552 S.E.2d 712, 718 (S.C. 2001). See

also McWee v. State, 593 S.E.2d 456, 458 (S.C. 2004) (explaining that in Butler then

again in Tucker, to grant relief, the Supreme Court of South Carolina “found it was

the combination of the constitutional violation and other circumstances which

17

compelled it to conclude the applicant had been denied fundamental fairness

shocking to the universal sense of justice”).

Consequently, the decision whether to exercise jurisdiction rests on the state

test does not present a federal question for this Court to review: “Without any doubt

it rests with each state to prescribe the jurisdiction of its appellate courts, the mode

and time of invoking that jurisdiction, and the rules of practice to be applied in its

exercise; and the state law and practice in this regard are no less applicable when

Federal rights are in controversy than when the case turns entirely upon questions

of local or general law.” John v. Paullin, 231 U.S. 583, 585 (1913).!!

As the test suggests, review of the petition claims is necessary, but the review

is not simply of the proposed claim under relevant law, but also consideration of the

context of the case.

“While the allegations in the petition are treated as true, the petition must set

forth a prima facie case showing the petitioner is entitled to relief’ which is to say, “it

must allege that the petitioner has exhausted all other remedies, and it must set out

a constitutional claim that meets the standard delineated in Butler.” Moore, 871

S.E.2d at 429. Mahdi could not make this preliminary showing under state law.

Thus, the petition was dismissed on the basis of the state law test, not federal law as

uW Mahdi is actually attempting to challenge (again) the state PCR court’s ruling from the 2009

PCR action. He is simply using the reference to the recent state supreme court original jurisdiction

petition as a swerve to the clear untimeliness of the request as to mitigation evidence, and the

presentation of personal and family history through one witness. (See Pet. at 2 n. 1). As shown infra,

both of these claims were previously presented to this Court, and Mahdi’s petitions were denied.

18

Mahdi attempts to make it. The court considered other circumstances not required

in application of the Strickland test. See McWee, supra; Butler, supra.

The Fourth Circuit has similarly found that denials of original jurisdiction

petitions submitted to the Supreme Court of South Carolina do not constitute rulings

on merits.!2 Wilson v. Moore, 178 F.3d 266, 277 (4th Cir. 1999). Wilson’s case was

based in federal habeas corpus reviewed under 28 U.S.C. § 2254, consequently,

whether the state court considered the claim on the merits affected not only

procedural default, but also whether the materials submitted in the petition for

original jurisdiction review could be considered a part of the state court record for §

2254 review. Id, at 273. The Fourth Circuit rejected Wilson’s argument that the order,

which reflected the petition was “denied,” indicated that Supreme Court of South

Carolina considered the merits of the federal claim.

The Fourth Circuit resolved “[a]fter examining the totality of the

circumstances accompanying the entry of the state order, we conclude that the order

fairly appears to rest on state procedural grounds, not federal law.” Jd, at 275-276. It

reached that conclusion having considered that there was no mention of federal law

in the order and there was no discernable difference in the state court’s use of “denied”

rather than “dismissed” to indicate the type of review given. Jd. The Fourth Circuit

considered other state case orders including one that had been presented to this Court

previously, Yates v. Aiken, where this Court had reversed the denial of a petition and

12 In general, this Court may depend on the federal court of appeals to have “familiarity” with

the state law at issue. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 16 (2004) (“ Our custom on

questions of state law ordinarily is to defer to the interpretation of the Court of Appeals for the Circuit

in which the State is located.”).

19

remanded to the Supreme Court of South Carolina for further proceedings. Id., at 275

n. 9 (citing Yates v. Aiken, 349 S.E.2d 84, 85 (S.C. 1986), rev'd, 484 U.S. 211 (1988)).

It noted, however, that subsequent guidance from this Court was then available to

determine whether the action was based on independent and adequate state law

grounds, citing Harris v. Reed, 489 U.S. 255 (1989), and Coleman v. Thompson, 501

U.S. 722, 729 (1991), and that precedent reinforced its conclusion that the ruling was

not on the merits. Jd. 13

In further support of the precise decision at issue here, the Supreme Court of

South Carolina set out its parameters of review, plainly, in its Order. (Pet. App. 5a,

setting on the standard of review and noting “a petitioner seeking a writ of habeas

corpus bears a much higher burden”). This “review plus” of any constitutional claim

presented distinguishes the review from mere application of federal law. In prime

example, under the state test, even the existence of a constitutional error does not

warrant review if the petition does not meet the remainder of the test such as

previous presentation of the issue in ordinary remedies. And Mahdi, with his record

of litigation, simply could not show the system had failed him, keeping him for proper

consideration. Rather, Mahdi’s various challenges failed factually and legally when

reviewed within his ordinary remedies. Indeed, in denying the petition, the state

supreme court first found a procedural bar to relief:

B Additionally, as the Supreme Court of South Carolina explained in the subsequent opinion

following remand, Yates had filed both a petition for writ of certiorari to review his denial of

postconviction relief and a petition for writ of habeas corpus in the original jurisdiction. Those petitions

were consolidated before the Court, logically making review of one over the other difficult. See Yates,

349 S.E.2d at 85.

20

First, the PCR court and the district court have

already determined this issue. See Simpson v. State,

829 S.C. 48, 46, 495 S.E.2d 429, 481 (1998) (noting habeas

corpus cannot be used as a substitute for appeal or other

procedure for the correction of errors for which the

defendant previously had the opportunity to avail himself).

(Pet. App. 6a).

A passing or light review of Mahdi’s ineffective assistance claim on the

established record is not enough for Mahdi to show proper jurisdiction in this Court

where in addition to showing a possible constitutional error, a state habeas corpus

petition still must establish the procedural or other failures that demonstrate the

extraordinary exercise of original jurisdiction would be warranted. Mahdi even

implicitly admits in his petition that the state supreme court did not grant him a new

Strickland review by the virtue of the complaints that he levies against the state

court:

e While the state supreme court addressed whether Mahdi’s

trial counsel were deficient, it did so in ways that were

nonresponsive to the arguments raise.”

e “the state court misses the point”

e« “the state court offers no relevant rejoinder to Mahdi’s

claim of deficient performance”

e “None of the state court’s reasoning speaks to [Mahdi’s

precise] concerns.”

e and asserts, “The superficiality of the state supreme court’s

prejudice analysis....”

(See Pet. at 32, 38, 34, 40).

The above proves Respondent’s point; the state supreme court was not granting

21

a new Strickland review, it was assessing whether there was the possibility of

constitutional error, that in the context of the entirety of the case, “constitutes a

denial of fundamental fairness shocking to the universal sense of justice.” Budtler,

supra. Mahdi frustration with the ruling is one of his own making: he is trying to

reshape the contours of the state supreme court’s review to convince this Court that

the state court misapplied federal law in a Strickland analysis when it the state court

was applying the state law test for original jurisdiction habeas corpus actions.

Consequently, as the state court order demonstrates on its face, the decision

that Mahdi failed to show relief was due under original jurisdiction rests on the

decision of the state supreme court to exercise jurisdiction under its own announced

state law test. That will not support jurisdiction here. John, supra. See also Coleman,

501 U.S. at 729 (“This Court will not review a question of federal law decided by a

state court if the decision of that court rests on a state law ground that is independent

of the federal question and adequate to support the judgment.”). The petition should

be dismissed. But even if Mahdi could show sufficient jurisdiction, he is still simply

asking the Court to revisit an old issue. The established record shows the Court need

not conduct a redundant review it already passed on in earlier litigation.

Il. The petition here constitutes little more than an untimely

petition for rehearing of the Court’s previous orders denying

Mahdi’s petition for certiorari review.

As the state supreme court found, this ineffective assistance of counsel claim

regarding the mitigation investigation was presented in both his state and federal

court actions, resolving that it “agree[d] with the PCR court and the district court,

22

and find that the evidence raised in Mahdi’s instant petition is merely cumulative to

that raised at sentencing.” (Pet. App. 6a-7a). Mahdi also blends into his complaints

that only a social worker presented Mahdi’ history to the sentencing judge rather

than counsel presenting lay witnesses, (see Pet. at 31, 40), including, presumably, the

witnesses he references in his “Statement of the Case,” Myra Harris, Carol Wilson,

and Georg Smith, (Pet. at 21-25, 38-39). These are not simply repetitive in general,

these complaints were raised previously to this Court:

Whether counsel in a capital sentencing proceeding can,

consistent with this Court’s holdings in Williams v. Taylor,

529 U.S. 362 (2000), and its progeny, properly rely

exclusively on expert testimony and forgo calling available

lay witnesses with detailed, firsthand information about

mitigating circumstances in the defendant’s background.

(BIO App. 19a; see also Sup.Ct. Docket No. 16-741).

Did the state post-conviction court misapply this Court’s

Sixth Amendment precedent when it held that Mikal

Mahdi’s_ trial attorneys reasonably ended _ their

investigation into mitigating evidence.

(Docket No. 22-5536, Petition filed September 6, 2022).

Under this Court’s Rule 44.2, petitions for rehearing on an order denying

certiorari review must be filed within a 25-day window. These requests to reconsider

questions presented from Mahdi’s prior petitions are little more than untimely

petitions for rehearing. Further, such petitions must be accompanied by a certificate

that the request is made “in good faith and not for delay....” Rule 44.2, Sup.Ct.R.

The request here is most certainly for delay and contrary to the history of Mahdi’s

litigation.

23

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