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

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APPENDIX

TABLE OF APPENDICES

SENTENCING ORDER, DECEMBER 8, 2006 .......................................................... 1a

UNITED STATES DISTRICT COURT ORDER, SEPTEMBER 24, 2018 .............. 13a

PETITION FOR WRIT OF CERTIORARI (PCR APPEAL) ................................... 110a

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STATE OF SOUTH CAROLINA

)

IN THE COURT OF GENERAL

SESSIONS

)

COUNTY OF CALHOUN

)

The State of South Carolina

Indictment Nos.:

)

2004-GS-09-242

2004-GS-09-243

2004-GS-09-244

Mikal Deen Mahdi,

Defendant

)

SENTENCING ORDER

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Thank you. Please be seated.

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Good Afternoon.

First, I commend Solicitor Pascoe, Deputy Solicitor Sorenson, and Defense

Counsel Mr. Walters and Mr. Koger for your professional advocacy and efficient manner

in which you have handled this case.

I also thank the Clerk, Mr. Hasty, and the

Courthouse staff, law enforcement and all of the witnesses for the courtesies and respect

shown the Court during this arduous proceeding. I especially thank the approximately

400 citizens of Calhoun County who were summoned to jury duty and responded by

appearing for this extremely important and essential civic responsibility.

I advise all present against any outbursts of expression. Some will agree. Some

will disagree. The decorum of the Court, however, must be maintained at all times.

The Defendant, Mikal Deen Mahdi, was indicted by the Grand Jury of Calhoun

County for murder, burglary second degree and grand larceny of a motor vehicle valued

in excess of five thousand dollars ($5000.00).

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Pursuant to South Carolina Code § 16-3-26, the Solicitor timely notified the

Defendant that he intended to seek the death penalty as punishment for the murder of

James E. Myers. On November 30, 2006, the Defendant waived his right to a jury trial

and pled guilty to all charges after the jury was seated but not yet sworn. Mr. Mahdi

acknowledged that he understood that as a consequence of his guilty plea to murder while

in the commission of a burglary and grand larceny that the Court would conduct a

separate sentencing proceeding and determine whether he should be sentenced to life

imprisonment without the possibility of parole or death.

From December 4-6, 2006, the Court heard additional evidence in extenuation,

mitigation, or aggravation of the punishment.

The Court also heard the arguments of

counsel for or against the sentence to be imposed. Mr. Mahdi waived his right to testify

and to have the final closing argument regarding the sentence to be imposed.

On December 6, 2006, the Court requested and subsequently received memoranda

from both counsel for the State and counsel for the Defendant listing all statutory and

non-statutory aggravating and mitigating factors believed to have been established by the

evidence.

This Order is as a result of the guilty plea and the separate sentencing proceeding

to determine whether the sentence of the Defendant, Mikal Deen Mahdi, for the murder

of James E. Myers should be life imprisonment without the possibility of parole or death.

FACTS

In the early morning of July 18, 2004, after carjacking a vehicle in Columbia,

South Carolina, the defendant pulled into the Wilco Travel Plaza off Interstate 26 in

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Calhoun County and attempted to use stolen credit and/or check cards. Employees at the

Travel Plaza called the Calhoun County Sheriff s Office reporting that the defendant was

acting in a suspicious manner. When the Sheriffs deputy arrived at the Travel Plaza, the

defendant fled into the woods and eventually entered upon land owned by James E.

Myers and Amy Tripp Myers. Mr. Myers was an Orangeburg Department of Public

Safety Captain, who was off duty, but on call at the time. Mr. Mahdi forcefully entered a

shed located on the land. When Captain Myers arrived at his property, Mr. Mahdi was

lying in wait.

Earlier that afternoon, Captain Myers and his wife Amy returned to their home in

Orangeburg County from Edisto Beach after celebrating the birthdays of Amy, his sister

and his daughter. After returning home, he visited his father who lived a short distance

away. Captain Myers left his father's home and stopped by his farm in Calhoun County.

He went to the shed located on the farm as he had done many times before. This shed

was where he and his wife were married; this shed was their place of peace and serenity;

and this shed held treasured memories and dreams of Captain Myers and his wife. On the

premises was Mikal Deen Mahdi who shot Captain Myers nine times, with a .22 caliber

semiautomatic rifle that was stored in the shed. Three of the bullets were to the head.

The defendant poured diesel fuel over Captain Myers's body and lit him on fire. The

defendant then stole Captain Myers's city issued truck and rifles and fled to Florida. On

July 21, 2004, the police department in Satellite Beach, Florida apprehended the

defendant after a chase. He was driving Captain Myers's truck.

Based upon the defendant's guilty plea, testimony presented, and other evidence

in the case, the court finds and concludes as follows:

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AGGRAVATING CIRCUMSTANCES

The State alleges thefollowing statutory aggravating circumstances:

The murder of Captain James E.

Myers was committed while in the

commission of burglary in the 2nd degree.

The murder of Captain James E. Myers was committed while in the

commission of larceny with use of a deadly weapon.

Mikal Mahdi pled guilty to Murder, Burglary in the 2nd degree and Grand

Larceny.

The State presented additional evidence during the sentencing proceedings

concerning the manner in which the murder of James E. Myers occurred while the

Defendant was committing these crimes. Further evidence was presented indicating that

the Defendant stole from the victim his police issued vehicle and two rifles - one of

which was used to kill the victim. I find that these two aggravating circumstances were

proven beyond a reasonable doubt.

The State alleges the following as additional statutory aggravating circumstances:

3. The murder of Captain James E. Myers was committed while in the

commission of robbery while armed with a deadly weapon.

4. The murder of a Captain James E. Myers occurred during or because of the

performance of his official duties.

There is strong evidence to suggest that items were taken from the person of

Captain Myers, particularly his police badge that was never recovered. The evidence also

suggests that a South Carolina Law Enforcement Division (SLED) investigative file on

the premises being worked on by Amy Tripp-Myers, then a SLED agent, had been

disturbed during the time the Defendant was alone in the shed. This is evidence that the

Defendant knew or should have known that he was on the premises of a person or

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persons involved in law enforcement. I conclude, however, that the State has failed to

prove these two aggravating circumstances beyond a reasonable doubt. Therefore, I have

neither considered nor given any weight to these two allegations as aggravating

circumstances.

The State also alleges the following nonstatutory aggravating circumstances:

Characteristics of the Defendant

The State presented compelling evidence of prior and subsequent bad acts of the

Defendant which are relevant to show his bad character, evil nature and malignant heart.

These incidents covered a period over eight years showing the Defendant committing a

series of crimes, including housebreaking, stealing guns, robbing people, selling crack

cocaine, vandalism and malicious wounding. These bad acts are summarized as follows:

On January 7, 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 during an evaluation profile, that his only strength was robbing people.

June 30, 1998, Mr. Mahdi, then 15 years old, was involved in an over 9 (nine) hour

standoff with the Brunswick County Virginia Sheriff's Department who was attempting

to execute an Order to return the Defendant to a juvenile detention facility, when Mr.

Mahdi made the comment according to Brunswick County Sheriff James Woodley that

"Fm gonna 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 mothers

automobile tires. During this arrest, Mr. Mahdi commented, according to Officer Mike

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Koehler that he "should have killed that crazy bitch," referring to his mother. On April

17, 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. Mahdi 's 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 July

15, 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

caijacked Corey Pitts 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 according 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 f ing dog. While in safekeeping in the South

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numerous

Carolina Department of Corrections awaiting this trial, Mr. Mahdi made

threats to kill various Department employees.

I find that The State has established by clear and convincing evidence the

tion

Defendant's bad character and propensities. This evidence is an important considera

any alleged

to the Court in assessing the Defendant's characteristics, but not as proof of

statutory aggravating circumstance.

MITIGATING CIRCUMSTANCES

mitigating

I have considered all statutory mitigating circumstances and non-statutory

circumstances argued by the Defense as well as other mitigating circumstances

supported

by the evidence.

Statutory Mitigating Circumstance

Defense counsel argues that the Defendant's youth should be considered by

court in detennining the appropriate sentence to be imposed.

the

Mikal Deen Mahdi was

tested

twenty-one (21) years old at the time of the murder of Captain Myers. When last

a young

at age 14, the Defendant's IQ was 108 - slightly above average. While this is

age for such a serious crime, Mikal Deen Mahdi began his criminal career at an early

age,

having entered the Virginia Department of Juvenile Justice at age 14. He is experienc

in the world of crime.

By the time he committed these crimes, Mr. Mahdi was well

aware of the severity of his crimes and the possible consequences.

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I have considered the defendant's young age, but I have not afforded

it great

age or mentality

weight in reaching my decision. There is nothing about Mr- Mahdi's

should it be

that in any way mitigates, excuses, or lessens his culpability and neither

given any significant weight in the Court's ultimate decision as to his sentence

Non-Statutory Mitigating Circumstances

to be the

I have also given consideration to what the defense contends

Defendant's turbulent and transient childhood and upbringing.

In reviewing the

testimony of Margie Hammock, the Defense's clinical social worker

expert, there is no

addition, records of

reference to physical or sexual abuse suffered by the Defendant. In

the Virginia Department of Juvenile Justice indicate that the Defendant's

father, brother,

ng. While

and grandmother continually expressed great care and concern for his well-bei

Mr. Mahdi's family life may have been less than ideal particularly without

the presence

of a loving and caring mother, I do not believe that his difficult childhood and

contributed in any significant way to his senseless criminal activities.

family life

Therefore while I

have considered this non-statutory mitigating circumstance, I do not believe

be given any significant weight in the Court's ultimate decision as to the

that it should

sentence to be

imposed.

ility

The Defense presented testimony from Mr. James Aiken, a prison adaptab

expert.

Mahdi's

Mr. Aiken, a highly credentialed expert, testified concerning Mr.

potential adaptability to prison life.

I have reviewed and considered Mr. Mahdi's records regarding his prior behavio

in various

correctional

institutions.

has

consistently

been disruptive and

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uncooperative and has threatened to kill prison employees.

Officers have repeatedly

found homemade weapons, ropes and other contraband in the Defendant's cell. During

this trial, the Defendant brought a homemade handcuff key into the courthouse with the

intent to use it, if possible to escape, thus posing a serious threat to courtroom security.

The Sheriff of Calhoun County testified that Mr. Mahdi stated to him that he made the

key while being housed and monitored at the State's highest security level facility.

While Mr. Aiken gave impressive testimony, based on Mr. Mahdi' s behavior in

correctional institutions throughout his adolescence and adult years, I do not believe that

he is sufficiently adaptable to prison life for this non-mitigating circumstance to be given

any significant weight in the Court's ultimate decision as to the sentence to be imposed.

The defense further argues as a non-statutory mitigating circumstance that the

Court should consider the Defendant's guilty plea in determining the appropriate

sentence to be imposed. The Defendant's guilty plea occurred during the fourth day of

his trial, following jury selection but prior to the jury being swom.

This was one day

following his attempted escape through the use of the homemade key. In addition, Mr.

Mahdi has failed to demonstrate any remorse for his actions at any point in time known to

the Court. Therefore, I conclude that no significant weight should be given to this non

statutory mitigating circumstance in the Court's ultimate decision as to the sentence to be

imposed.

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VICTIM IMPACT

Mikal Deen Mahdi murdered a husband, father, grandfather, son, and friend to

many. Captain Myers was a well-respected police officer, an outdoorsman, a mentor and

a treasured jewel of humanity.

Mikal Deen Mahdi burglarized Captain Myers's farm

shed and stole his family's sense of security and serenity.

He robbed the Myers family

and their many colleagues and friends of their right to peaceful enjoyment of life.

SENTENCING RATIONALE

In considering the appropriate sentence to be imposed, I am acutely aware that I am being

called upon to determine what few of my brethren and sisters on the bench have been

called upon to do. It is being the sole judge of whether Mr. Mahdi should be sentenced to

life in prison without the possibility of parole or death by electrocution or lethal injection.

It is an awesome task - which I do not take lightly.

United States Supreme Court Justice Potter Stewart referred to the penalty of

death in the case of Furman v. Georgia as being different from all other forms of criminal

punishment, not in degrees but in kind. It is unique in its total irrevocability; it is unique

in its rejection of rehabilitation as a basic purpose of criminal justice; and it is unique,

finally, in its absolute renunciation of all that is embodied in our concept of humanity.

My challenge and commitment throughout my judicial career has been to temper

justice with mercy and to seek to find the humanity in every defendant that I sentence.

That sense of humanity seems not exist in Mikal Deen Mahdi.

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The State pleads for justice- Mr. Mahdi's plea is for mercy.

In evaluating these two ideals, I am reminded of my duly sworn oath to preserve,

protect, and defend the Constitution of this State and the United States of America. This

obligation that I have applies not only to Mikal Dean Mahdi but as importantly it is an

obligation that I have to all the citizens of the Sate of South Carolina.

The State and the Defendant are entitled to justice. Today, the Defendant also

seeks mercy- the same mercy that perhaps Captain James E. Myers sought for an instant

before Mikal Deen Mahdi fired nine bullets into Captain Myers" body from one of

Captain Myers's prized weapons, before setting his body on fire with matches and diesel

fuel belonging to Captain Myers.

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 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.

As to

Burglary 2nd degree and Grand Larceny, the sentence is fifteen years and ten years,

respectively, consecutive to the sentence for murder and consecutive to each other.

AFFIRMATIVE FINDING

I find as an affirmative fact that the evidence in this case warrants the imposition

of the death penalty and that its imposition is not a result of prejudice, passion, or any

other arbitrary factor.

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It is therefore the judgment of the law and the sentence of the Court that you

Defendant Mikal Deen Mahdi be taken to the South Carolina Department

the

of Corrections,

henceforth to be kept in close and safe confinement, until the 8th day of February 2007,

upon which day, between the hours of 6:00 a.m. and 6:00 p.m., that you

the Defendant

God have

Mikal Deen Mahdi shall suffer death in the manner provided by law. May

mercy on your soul.

The execution of the sentence will be stayed pending the automatic appeals

and

reviews as required by law.

THIS COURT IS ADJOURNED.

December 8, 2006

Clifton Newman

Presiding Judge

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Entry Number 138

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

ANDERSON/GREENWOOD DIVISION

Mikal D. Mahdi, #5238,

Petitioner,

vs.

Bryan Stirling, Commissioner, South

Carolina Department of Corrections;

Willie D. Davis, Warden, Kirkland

Correctional Institution,

Respondents.

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C/A No. 8:16-3911-TMC

OPINION & ORDER

This matter is before the court on Respondents’ motion for summary judgment (ECF No.

105) and motion to strike (ECF No. 125). Petitioner Mikal D. Mahdi (“Mahdi”) is a death-sentenced

state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. §

636(b)(1)(B), and Local Civil Rule 73.02(B)(2), D.S.C., pre-trial proceedings were referred to a

magistrate judge. On September 24, 2018, the court withdrew the reference of this matter and now

enters an order on the pending motions. (ECF No. 137). Having carefully considered the parties’

submissions and the record in this case, the court grants Respondents’ motion for summary

judgment. (ECF No. 105). In addition, Respondents’ motion to strike (ECF No. 125) is granted in

part and denied in part.

BACKGROUND

The following facts are recited, verbatim, from South Carolina Supreme Court Chief Justice

Jean Hoefer Toal’s concurring opinion in Mahdi’s direct appeal:

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

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 the woods behind the station.

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 [sic] body and set the body on fire. Petitioner stole

Myers’ police-issued truck, and left with Myers’ shotgun, his .22 rifle, and Myers’

Mahdi has since pled guilty to first-degree murder in the death of Mr. Boggs and received

a life sentence in North Carolina. (ECF No. 51-1 at 56 n.4).

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Page 3 of 97

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 [and

proceeded] on foot in possession of the assault rifle. When cornered by police,

Petitioner abandoned the rifle and was eventually taken into custody.

Mahdi v. State, 678 S.E.2d 807, 809 (S.C. 2009) (Toal, C.J., concurring) (footnote added).

PROCEDURAL HISTORY

Guilty Plea & Sentencing

On August 23, 2004, the Calhoun County grand jury indicted Mahdi for murder, grand

larceny, and second degree burglary, and the State filed its Notice of Intent to Seek the Death

Penalty. (ROA 1829-35).2 The South Carolina Supreme Court ordered South Carolina Circuit Court

Judge Clifton Newman to preside over Mahdi’s case. (ROA 1841). Judge Newman appointed

attorneys Carl Grant and Glenn Walters to represent Mahdi. (ROA 8). However, in 2016, upon

Grant’s motion and with the State and Mahdi’s consent, the court relieved Mr. Grant as counsel

because he had sustained a serious injury in a motorcycle accident. (ROA 104-05). Mr. Walters

replaced Mr. Grant as lead counsel and the court appointed Joshua Koger, Jr., as second chair

counsel. (ROA 109).

From November 26th to 29th, 2006, the parties engaged in individual voir dire and selected

a capital jury. (ROA 207-1318). However, on November 30th, prior to the jury being sworn, Mahdi

waived his right to a jury trial and pled guilty to all charges. (ROA 1336-68). Following the

The Record on Appeal can be found at ECF Nos. 31-5 to 31-12.

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mandatory twenty-four hour statutory waiting period, Mahdi’s sentencing proceeding before Judge

Newman began on December 4, 2006. (ROA 1372). As aggravating circumstances, the State

alleged that Mahdi: (1) committed the murder during the commission of a burglary; (2) committed

the murder during the commission of a larceny with a deadly weapon; (3) committed the murder

during the commission of a robbery while armed with a deadly weapon; and (4) murdered a law

enforcement officer during or because of the performance of his official duties. (ROA 1838). Judge

Newman found the State proved the first two aggravating circumstances beyond a reasonable doubt

and, after carefully considering all of the evidence, sentenced Mahdi to death. (ROA 1810-26).

Direct Appeal

On direct appeal, Mahdi 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?

(ECF No. 31-1 at 3). On June 15, 2009, the South Carolina Supreme Court affirmed Mahdi’s

sentence. See Mahdi v. State, 678 S.E.2d 807 (S.C. 2009). (App. A000193).3 Mahdi did not appeal

this decision, but moved for a stay of execution in order to pursue post-conviction relief (“PCR”).

On July 23, 2009, the South Carolina Supreme Court granted Mahdi’s motion and assigned South

Carolina Circuit Court Judge Doyet A. Early, III, to preside over Mahdi’s PCR action.

First PCR Action

On August 18, 2009, Mahdi filed his initial PCR application pro se. (App. A000853-59).

Through appointed counsel, Teresa Norris and Robert Lominack, Mahdi amended his application

and raised the following grounds:

The Appendix can be found at ECF Nos. 32-1 through 34-2.

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10(a) Applicant was denied the effective assistance of counsel during the

sentencing phase of his trial in violation of South Carolina law and the Sixth and

Fourteenth Amendments to the United States Constitution.

11(a)(I) Trial counsel failed to object when the trial judge improperly based

his decision to impose a death sentence on petitioner’s assertion of his right to a jury

trial, thereby effectively punishing him for exercising this constitutional right.

Counsel’s deficient performance in failing to preserve the issue for appellate review

deprived petitioner of the right to effective assistance of counsel.

(ii) Counsel failed to adequately advise Applicant of the advantages of jury

sentencing, which resulted in the Applicant pleading guilty and purporting to waive

his right to jury sentencing.

(iii) Counsel failed to adequately investigate, develop, and present mitigation

evidence concerning Applicant’s family, social, institutional, and mental health

history.

(iv) Counsel failed to assert that Applicant’s death sentence violates the Cruel

and Unusual Punishment Clause of the Eighth Amendment to the United States

Constitution due to Applicant’s developmental deficits.

(v) Counsel failed to assert that S.C. Code § 16-3-20 is unconstitutional in

that it automatically precludes jury sentencing following a guilty plea in violation of

the Sixth, Eighth, and Fourteenth Amendments as addressed in Ring v. Arizona, 536

U.S. 584 (2002). Moreover, this statute forces a capital defendant to choose between

his right to a jury trial and his right to present mitigating evidence, namely that he has

accepted responsibility for the crime. While this issue has been rejected by state

courts, see State v. Downs, 361 S.C. 141, 604 S.E.2d 377 (2004), it has not been

reviewed by federal courts and counsel were thus ineffective in failing to adequately

preserve the record for subsequent litigation.

Counsel’s conduct in each instance separately and cumulatively was both

unreasonable and prejudicial in sentencing. Strickland v. Washington, 466 U.S. 668

(1984); Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374

(2005); Council v. State, 380 S.C. 159, 670 S.E.2d 356 (2008).

10(b) Applicant’s death sentence violates the Cruel and Unusual Punishment

Clause of the Eighth Amendment to the United States Constitution due to Applicant’s

developmental deficits.

11(b) At the time of the offenses, Applicant was developmentally impaired

such that he had the “mental age” of a juvenile due to his atrocious background of

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Entry Number 138

Page 6 of 97

deprivation, neglect, abuse, and institutionalization. The Cruel and Unusual

Punishment Clause precludes the infliction of the death penalty upon him, just as it

precludes execution of those under the age of 18 at the time of the offenses, because

of these grave developmental deficits. See Roper v. Simmons, 543 U.S. 551 (2005).

(App. A000458-62) (emphasis in original).

From March 9th to 11th, 2011, the PCR court held an evidentiary hearing on Mahdi’s

application. (App. A001240-1960). After considering all of the evidence, the PCR court dismissed

Mahdi’s application. (App. A000011-58). In Ground 10(a)/11(a)(iii), the PCR court found trial

counsel failed to conduct an adequate mitigation investigation, but that this deficiency did not

prejudice Mahdi. The State moved to alter or amend that finding (see App. A000787-852); the PCR

court heard argument on the State’s motion (App. A001204-1232); and, on August 20, 2014, the

PCR court filed an amended order of dismissal, finding trial counsel had adequately investigated

potential mitigating evidence. (App. A000059-191 (“PCR Order”)). On August 27, 2014, Mahdi

moved to alter or amend the amended order (App. A000257-59), and the PCR court denied Mahdi’s

motion on September 9, 2014 (App. A000192).

PCR Appeal

Mahdi, through counsel Seth C. Farber, Brandon W. Duke, and Teresa L. Norris, appealed

the PCR court’s decision by filing a petition for a writ of certiorari to the South Carolina Supreme

Court raising 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?

(ECF No. 31-18 at 5). On September 8, 2016, after full briefing by the parties, the Supreme Court

of South Carolina denied the petition. (ECF No. 31-21). Remittitur issued on September 26, 2016.

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Entry Number 138

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(ECF No. 31-22).

Mahdi petitioned the United States Supreme Court for certiorari review of the South Carolina

Supreme Court’s decision, presenting virtually the same issue:

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.

(ECF No. 51-1 at 2). The United States Supreme Court denied certiorari on February 21, 2017.

(ECF No. 51-4).

Second PCR Action

On January 10, 2017, after filing the instant federal habeas petition, Mahdi through his

federal habeas counsel filed a second PCR application, raising the following grounds:

10) Statement of grounds for relief:

a) S.C. Code Ann. § 16-3-20, which requires a judge to sentence the

defendant following a guilty plea, violates the Sixth Amendment of the United States

Constitution, which is applicable to the states through the Fourteenth Amendment,

because a judge rather than a jury finds facts required for imposition of a death

sentence. Hurst v. Florida, __U.S.__, 136 S.Ct. 616 (2016).

b) Mr. Mahdi was denied the right to effective assistance of

counsel—guaranteed by the Sixth and Fourteenth Amendments to the United States

Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution—during

the guilt-or-innocence phase of his capital trial because his trial counsel advised him

that the guilty plea would be considered as mitigation.

c) Pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991), Mr.

Mahdi seeks an appeal on the following grounds for relief and supporting facts raised

in his initial application for post-conviction relief (Case No. 2009-CP-09-164), as

amended:

Applicant was denied the effective assistance of counsel during the

sentencing phase of his trial in violation of South Carolina law and

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the Sixth and Fourteenth Amendments to the United States

Constitution.

Trial counsel failed to object when the trial judge improperly

based his decision to impose a death sentence on petitioner’s

assertion of his right to a jury trial, thereby effectively

punishing him for exercising this constitutional right.

Counsel’s deficient performance in failing to preserve the

issue for appellate review deprived petitioner of the right to

effective assistance of counsel.

Counsel failed to adequately advise Applicant of the

advantages of jury sentencing, which resulted in the Applicant

pleading guilty and purporting to waive his right to jury

sentencing.

Counsel failed to adequately investigate, develop, and present

mitigation evidence concerning Applicant’s family, social,

institutional, and mental health history.

Counsel failed to assert that Applicant’s death sentence

violates the Cruel and Unusual Punishment Clause of the

Eighth Amendment to the United States Constitution due to

Applicant’s developmental deficits.

Counsel failed to assert that S.C. Code Section 16-3-20 is

unconstitutional in that it automatically precludes jury

sentencing following a guilty plea in violation of the Sixth,

Eighth, and Fourteenth Amendments as addressed in Ring v.

Arizona, 536 U.S. 584 (2002). Moreover, this statute forces

a capital defendant to choose between his right to a jury trial

and his right to present mitigating evidence, namely that he

has accepted responsibility for the crime. While this issue has

been rejected by state courts, see State v. Downs, 361 S.C.

141, 604 S.E.2d 377 (2004), it has not been reviewed by

federal courts and counsel were thus ineffective in failing to

adequately preserve the record for subsequent litigation.

Applicant’s death sentence violates the Cruel and Unusual

Punishment Clause of the Eighth Amendment to the United States

Constitution due to Applicant’s developmental deficits.

At the time of the offenses, Applicant was developmentally

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impaired such that he had the “mental age” of a juvenile due

to his atrocious background of deprivation, neglect, abuse,

and institutionalization. The Cruel and Unusual Punishment

Clause precludes the infliction of the death penalty upon him,

just as it precludes execution of those under the age of 18 at

the time of the offenses, because of these grave

developmental deficits. See Roper v. Simmons, 543 U.S. 551

(2005).

d) If the State contends that any of the grounds for relief identified in

paragraph 10(c) were not ruled on by the initial post-conviction relief judge, then Mr.

Mahdi seeks a ruling so that he may appeal.

(ECF No. 46-1 at 2-4).

The State responded to Mahdi’s application, asserting that it should be dismissed as

improperly successive and time barred. (See ECF No. 46-2). The second PCR court heard argument

on the State’s motion and, on June 29, 2017, dismissed Mahdi’s application on procedural grounds.

(ECF No. 66-1). Mahdi moved to alter or amend the court’s order (ECF No. 103-6), and the court

denied that motion (ECF No. 79-1).

Mahdi appealed the second PCR court’s order. (ECF No. 103-8). On April 19, 2018, the

South Carolina Supreme Court found Mahdi had failed to show an arguable basis for asserting the

lower court’s determination was improper and dismissed the matter. (ECF No. 126-1). Mahdi filed

a petition for rehearing (ECF No. 135-1), which the South Carolina Supreme Court denied on June

27, 2018 (ECF No. 135-2). Remittitur issued the same day. (ECF No. 135-3).

Federal Habeas Corpus

On September 26, 2016, Mahdi filed this habeas petition under § 2255. (ECF No. 1). He

filed an amended petition (the “Amended Petition”) on September 7, 2017, raising the following

grounds for relief:

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Mr. Mahdi was denied his right to the effective assistance of counsel as

guaranteed by the Sixth and Fourteenth Amendments when trial counsel

failed to object to the State’s use of full body restraints, both at the detention

center and in the courtroom, when the restraints were an uncomfortable

“torture” and “torment” at the detention center and would be highly visible

to the jurors in the courtroom, in violation of Deck v. Missouri, 544 U.S. 622

(2005), thereby rendering Mr. Mahdi’s guilty plea involuntary in violation of

Boykin v. Alabama, 395 U.S. 238 (1969).

II.

Mr. Mahdi was denied the right to the effective assistance of counsel as

guaranteed by the Sixth and Fourteenth Amendments to the United States

Constitution at the sentencing phase of his trial when trial counsel failed to

adequately investigate, develop, and present mitigation evidence.

III.

S.C. Code Ann. § 16-3-20 is unconstitutional in that it automatically

precludes jury sentencing following a guilty plea in violation of the Sixth and

Fourteenth Amendments to the United States Constitution as addressed in

Hurst v. Florida, __U.S.__, 136 S. Ct. 616 (2016), which is a new rule of

constitutional law that applies retroactively to Mr. Mahdi’s death sentence.

IV.

Mr. Mahdi was denied his right to the effective assistance of counsel as

guaranteed by the Sixth and Fourteenth Amendments when trial counsel

failed to assert that S.C. Code Ann. § 16-3-20 is unconstitutional in that it

automatically precludes jury sentencing following a guilty plea in violation

of the Sixth, Eighth, and Fourteenth Amendments as addressed in Ring v.

Arizona, 536 U.S. 584 (2002).

Mr. Mahdi was denied his right to the effective assistance of counsel as

guaranteed by the Sixth and Fourteenth Amendments when trial counsel

failed to adequately advise him of the advantages of jury sentencing, which

resulted in Mr. Mahdi pleading guilty and purporting to waive his right to

jury sentencing.

VI.

Mr. Mahdi was denied the right to the effective assistance of counsel as

guaranteed by the Sixth and Fourteenth Amendments when trial counsel

advised him that the guilty plea would be considered as mitigation.

VII.

Mr. Mahdi was denied his right to the effective assistance of counsel as

guaranteed by the Sixth and Fourteenth Amendments when trial counsel

failed to object when the trial judge improperly based his decision to impose

a death sentence on Mr. Mahdi’s assertion of his right to a jury trial, thereby

effectively punishing him for exercising this constitutional right.

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(ECF No. 75 at 9-41).

APPLICABLE LAW

Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for

summary judgment:

The court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect

disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury

might return a verdict for the non-movant. Id. at 257. When determining whether a genuine factual

issue has been raised, the court must construe all inferences and ambiguities against the movant and

in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

The party seeking summary judgment shoulders the initial burden of demonstrating to the

court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). Once the movant has made this threshold demonstration, the nonmoving party, to survive

the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at

324. Rather, the nonmoving party must identify specific, material facts that give rise to a triable

issue of material fact. Id. Under this standard, the existence of a mere scintilla of evidence in

support of the nonmovant’s position is insufficient to withstand the summary judgment motion.

Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are

insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over

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facts that might affect the outcome of the suit under the governing law will properly preclude the

entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”

Id. Further, Rule 56 provides in pertinent part:

A party asserting that a fact cannot be or is genuinely disputed must

support the assertion by:

(A) citing to particular parts of materials in the record,

including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions,

interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

Habeas Corpus

Because Mahdi filed the Petition after the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d).

Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the

AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication

(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

(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.

28 U.S.C. § 2254(d). “[A] federal habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court decision applied clearly

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Rather, that application must also be

unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “A state court’s determination that

a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on

the correctness of the state court’s decision,” and “even a strong case for relief does not mean the

state court’s contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101–02

(2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Moreover, state court factual

determinations are presumed to be correct, and the petitioner has the burden of rebutting this

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Exhaustion & Procedural Bar

A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his

state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas

petitioner must present his claims to the state’s highest court.” Matthews v. Evatt, 105 F.3d 907, 911

(4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir.

2011); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases,

471 S.E.2d 454, 454 (S.C. 1990) (holding that “when the claim has been presented to the Court of

Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have

exhausted all available state remedies”). To exhaust his available state court remedies, a petitioner

must “fairly present[] to the state court both the operative facts and the controlling legal principles

associated with each claim.” Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal

quotation marks and citation omitted). Thus, a federal court may consider only those issues which

have been properly presented to the state appellate courts with jurisdiction to decide them.

Generally, a federal habeas court should not review the merits of claims that would be found to be

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procedurally defaulted (or barred) under independent and adequate state procedural rules. Lawrence

v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); Longworth, 377 F.3d 437; see also Coleman v.

Thompson, 501 U.S. 722 (1991). For a procedurally defaulted claim to be properly considered by

a federal habeas court, the petitioner must “demonstrate cause for the default and actual prejudice

as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims

will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.

In South Carolina, a person in custody has two primary means of attacking the validity of his

conviction: (1) through a direct appeal or (2) by filing an application for PCR. State law requires that

all grounds for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C.

Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails

to address a claim as required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make

a motion to alter or amend the judgment. S.C. R. Civ. P. 59(e). Failure to do so will result in the

application of a procedural bar to that claim by the Supreme Court of South Carolina. Marlar v.

State, 653 S.E.2d 266 (S.C. 2007).4

In addition, the Supreme Court of South Carolina will refuse to consider claims raised in a

second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 17-27-90; Aice

v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct appeal or

a PCR application and the deadlines for filing have passed, he is barred from proceeding in state

In Bostick v. Stevenson, 589 F.3d 160 (4th Cir. 2009), the Fourth Circuit found that, prior

to the Supreme Court of South Carolina’s November 5, 2007 decision in Marlar, South Carolina

courts had not uniformly and strictly enforced the failure to file a motion pursuant to Rule 59(e) as

a procedural bar. 589 F.3d at 162-65. Accordingly, for matters in which there was a PCR ruling

prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule

59(e) to effect a procedural bar.

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court. S.C. App. Ct. R. 203(d)(3), 243. If the state courts have applied a procedural bar to a claim

because of an earlier default in the state courts, the federal court honors that bar. See Reed v. Ross,

468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the

United States Supreme Court explained:

. . . [State procedural rules promote] not only the accuracy and

efficiency of judicial decisions, but also the finality of those

decisions, by forcing the defendant to litigate all of his claims

together, as quickly after trial as the docket will allow, and while the

attention of the appellate court is focused on his case.

Reed, 468 U.S. at 10-11.

Ineffective Assistance of Counsel

In Strickland v. Washington, the United States Supreme Court established that to challenge

a conviction based on ineffective assistance of counsel, a prisoner must prove two elements: (1) his

counsel was deficient in his representation and (2) he was prejudiced as a result. 466 U.S. 668, 687

(1984). To satisfy the first prong, a prisoner must show that “counsel’s representation fell below an

objective standard of reasonableness.” Id. at 688. To satisfy the second prong, a prisoner must show

that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 692. The Court cautioned that “[j]udicial scrutiny of

counsel’s performance must be highly deferential,” and “[b]ecause of the difficulties inherent in

making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Id. at 689.

In the specific context of a guilty plea, the prejudice prong of Strickland requires the prisoner

to show that “there is a reasonable probability that, but for counsel’s errors, [the prisoner] would not

have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59

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(1985). The Supreme Court further explained,

In many guilty plea cases, the “prejudice” inquiry will closely resemble the inquiry

engaged in by courts reviewing ineffective-assistance challenges to convictions

obtained through a trial. For example, where the alleged error of counsel is a failure

to investigate or discover potentially exculpatory evidence, the determination whether

the error “prejudiced” the defendant by causing him to plead guilty rather than go to

trial will depend on the likelihood that discovery of the evidence would have led

counsel to change his recommendation as to the plea. This assessment, in turn, will

depend in large part on a prediction whether the evidence likely would have changed

the outcome of a trial. . . . As we explained in Strtickland v. Washington, these

predictions of the outcome at a possible trial, where necessary, should be made

objectively, without regard for the “idiosyncrasies of the particular decisionmaker.”

Hill, 474 U.S. at 59-60 (citations omitted).

When evaluating a habeas petition based on a claim of ineffective assistance of counsel,

“[t]he pivotal question is whether the state court’s application of the Strickland standard was

unreasonable. This is different from asking whether defense counsel’s performance fell below

Strickland’s standard.” Richter, 562 U.S. at 101. “A state court must be granted a deference and

latitude that are not in operation when the case involves review under the Strickland standard itself.”

Id.; see also Yarborough v. Gentry, 540 U.S. at 6 (stating judicial review of counsel’s performance

is “doubly deferential when it is conducted through the lens of federal habeas”). If a state court

decision questionably constitutes an unreasonable application of federal law, the “state court’s

determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists

could disagree’ on the correctness of the state court’s decision.” Richter, 562 U.S. at 101 (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, in such situations, the habeas court must

determine whether it is possible for fairminded jurists to disagree that the arguments or theories

supporting the state court’s decision are inconsistent with Supreme Court precedent. Id.

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DISCUSSION

Before diving into the intricacies of the parties’ substantive arguments, the court must

address some preliminary matters raised in the briefs.

In his Response, Mahdi requests an evidentiary hearing under Rule 8 of the Rules Governing

Section 2254 Cases in the United States District Courts on all of his habeas grounds. (ECF No. 113

at 2).5 Under the AEDPA, evidentiary hearings are generally prohibited even when a habeas

petitioner has failed to develop the factual basis of a claim in his state court proceedings. 28 U.S.C.

§ 2254(e)(2); see Cullen v. Pinholster, 563 U.S. 170, 181-84 (2011) (recognizing both that “review

under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim

on the merits” and also that for claims for which the factual basis was not developed in state court

“§ 2254(e)(2) bars a federal court from holding an evidentiary hearing, unless the applicant meets

certain statutory requirements”). However, the statute itself creates an exception to the general rule

if the petitioner can show that the claim relies on a new, retroactive rule of constitutional law or “a

factual predicate that could not have been previously discovered through due diligence[,]” and that

“the facts underlying the claim would be sufficient to establish by clear and convincing evidence that

but for constitutional error, no reasonable factfinder would have found the applicant guilty of the

underlying offense.” Id.

Thus, the Fourth Circuit has recognized:

A petitioner who has diligently pursued his habeas corpus claim in state court is

entitled to an evidentiary hearing in federal court, on facts not previously developed

in the state court proceedings, if the facts alleged would entitle him to relief, and if

Rule 8 states: “If the petition is not dismissed, the judge must review the answer, any

transcripts and records of state-court proceedings, and any materials submitted under Rule 7 to

determine whether an evidentiary hearing is warranted.”

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he satisfies one of the six factors enumerated by the Supreme Court in Townsend v.

Sain, 372 U.S. 293, 313 (1963).

Juniper v. Zook, 876 F.3d 551, 563 (4th Cir. 2017) (quoting Conaway v. Polk, 453 F.3d 567, 582

(4th Cir. 2006)). The six Townsend factors are:

(1) the merits of the factual dispute were not resolved in the state hearing; (2) the

state factual determination is not fairly supported by the record as a whole; (3) the

fact-finding procedure employed by the state court was not adequate to afford a full

and fair hearing; (4) there is a substantial allegation of newly discovered evidence;

(5) the material facts were not adequately developed at the state-court hearing; or (6)

for any reason it appears that the state trier of fact did not afford the habeas applicant

a full and fair fact hearing.

Townsend, 372 U.S. at 313. For the reasons that follow, the court finds Mahdi has failed to show

he is entitled to an evidentiary hearing on any of his preserved claims under this standard. Mahdi

has also requested a hearing on his defaulted claims, and the court will address those requests when

it analyzes the merits of each related ground.

In addition, Mahdi has requested expansion of the record under Rule 7 of the Rules

Governing Section 2254 Cases in the United States District Courts.6 (ECF No. 113 at 2). Mahdi

attached five extra-record exhibits to his Response—an affidavit from habeas counsel’s mitigation

investigator, emails from habeas counsel requesting a transcript from the second PCR hearing, a

2012 affidavit from PCR counsel regarding guilty pleas in capital cases, and affidavits from each

PCR attorney regarding actions taken in PCR proceedings after the release of two Supreme Court

decisions.7 (ECF Nos. 113-1 through 113-5). Respondents oppose the court’s consideration of the

Rule 7 states: “If the petition is not dismissed, the judge may direct the parties to expand the

record by submitting additional materials relating to the petition. The judge may require that these

materials be authenticated.”

In addition, Mahdi noted he was “in the process of procuring affidavits from Mr. Mahdi and

Mr. Mahdi’s North Carolina counsel that [would] be consistent with, and support, the arguments and

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attached affidavits8 and have moved to strike those exhibits. (ECF No. 125). The court will address

Mahdi’s request to expand the record and Respondents’ motion to strike in its discussion of the

grounds to which they apply.

Finally, Mahdi contends the PCR court wrongfully “ced[ed] its factfinding authority to the

State by” adopting, nearly wholesale, the State’s proposed order, thus undercutting the

reasonableness of the PCR court’s factual determinations. (ECF No. 113 at 5-6). In federal habeas

proceedings, a state court’s factual determinations are presumed correct and the petitioner has the

burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. §

2254(e)(1). The Supreme Court has questioned a state court’s factfinding procedures based on its

verbatim adoption of one party’s proposed order. Jefferson v. Upton, 560 U.S. 284, 292 (2010).

However, in Jefferson, the state court solicited the proposed order ex parte, did not provide the

opposing party an opportunity to criticize the order’s findings or submit his own, and adopted

findings that contained evidence not before the court. See id. at 294. And, the Court noted that

although it had previously stated “that a court’s ‘verbatim adoption of findings of fact prepared by

prevailing parties’ should be treated as findings of the court,” it had “also criticized that practice.”

Id. at 293-94 (quoting Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 572

(1985)).

In this case, the PCR court’s initial order of dismissal included findings favorable to Mahdi.

factual background” in the Response and that he would file those affidavits once he received them.

(ECF No. 113 at 2 n.1). However, no additional affidavits appear on the docket and Mahdi has not

referenced any in later filings.

Respondents express no opinion on Exhibit 2, habeas counsel’s emails. (See ECF No. 125

at 1).

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(See App. A000011-58). The State moved to alter or amend those findings and the PCR court held

a hearing on the State’s motion. At the end of the hearing, the PCR court directed the State to submit

a proposed amended order of dismissal. The State submitted a 148-page proposed order, copying

opposing counsel. (See App. A000616-783). Mahdi filed objections to the State’s proposed order

(App. A001012-23) and the PCR court ultimately issued its 133-page decision (App. A000059-190).

This record suggests the PCR court considered both parties’ arguments and reviewed and edited the

State’s order before adopting the majority of it. While adopting a party’s proposed order is a

disfavored practice, especially in a capital case, Mahdi has failed to show by clear and convincing

evidence that the PCR court’s factual findings are not entitled to a presumption of correctness.

GROUND ONE – THE SHACKLES

In Ground One, Mahdi asserts his trial counsel were ineffective for failing to object to the

use of full body restraints both at the detention center and in the courtroom. (ECF No. 75 at 9-14).

Mahdi contends the full body restraints were an unnecessary form of torture and torment and their

use influenced his decision to plead guilty, thereby rendering his plea involuntary. (ECF No. 75 at

13). Respondents counter that the restraints were justified, and trial counsel had no basis for an

objection because Mahdi told the trial court the restraints did not influence his plea. (ECF No. 104

at 37-42). This claim was not raised in state court and is, therefore, defaulted. However, Mahdi

argues cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012), asserting the ineffectiveness

of his PCR counsel for failing to present this claim in his PCR application.

Inadequate assistance of counsel “at initial-review collateral review proceedings may

establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial,” id. at

9, where:

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(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2)

the “cause” consisted of there being “no counsel” or only “ineffective” counsel

during the state collateral review proceeding; (3) the state collateral review

proceeding was the “initial” review proceeding in respect to the “ineffectiveassistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective

assistance of trial counsel [claim] . . . be raised in an initial-review collateral

proceeding.”

Trevino v. Thaler, 564 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 14, 17-18).

Thus, Mahdi must “demonstrate that the underlying ineffective-assistance-of-trial-counsel

claim is a substantial one, which is to say that . . . the claim has some merit,” Martinez, 566 U.S.

at 14 (comparing Miller-El v. Cockrell, 537 U.S. 322 (2003) (describing standards for certificates

of appealability)), and that his PCR counsel were ineffective under Strickland for not raising that

claim. As applied to guilty pleas, Strickland’s deficiency prong remains the same, but to prove

prejudice, Mahdi must show that “there is a reasonable probability that, but for counsel’s errors, [he]

would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S.

at 59.

Mahdi began his court proceedings in leg braces, which were strapped onto his legs and

locked into place, and worn under Mahdi’s clothing. (App. A003540). However, after one day in

the leg braces, Mahdi requested leg irons, which are described as “oversized handcuffs that fit around

the ankles with a chain in between.” (App. A003196, A003540). The sheriff discussed Mahdi’s

request with his attorneys and the court, and then switched Mahdi to leg irons. (App. A003540).

Mahdi had no other restraints. (App. A003543).

After voir dire and related motions, outside the presence of the jury, Solicitor Pascoe

informed the court the security team had found a handmade handcuff key in Mahdi’s pocket. (App.

A003194). Mahdi admitted to making the key at the detention center. (App. A003195, A00354221

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43). He hid the key in his mouth and brought it to the courthouse on multiple days, but was unable

to get the key from his mouth to his hand until he had a private meeting with his attorneys, outside

the presence of deputies. (App. A003194-95, A003542). Security officers found the key during a

search after that meeting and before Mahdi returned to the courtroom. (App. A003541). Mahdi

admitted to trying to use the key to remove his leg irons.9 (App. A003194, A003195). As a result,

the sheriff recommended that the court consider securing Mahdi’s hands, but indicated handcuffs

would be visible if Mahdi placed his hands on top of the defense table. (App. A003195, A00319697).

Judge Newman asked for input from both the solicitor and defense counsel. Solicitor Pascoe

agreed with the sheriff and endorsed shackling Mahdi’s hands and legs and using “any means

possible to make sure the courthouse is secure.” (App. A003195). Mr. Walters stated:

Your Honor, certainly, we want to keep the public safe. And the events that have just

occurred were just brought to my attention by the Sheriff. And, of course, I haven’t

conferred with my client to discuss exactly what he said to the Sheriff, but, evidently,

they had a conversation.

At this point, we would abide by any rulings of the Court. And I appreciate the

Sheriff brought it to my attention and - - I was talking to the Solicitor and it was

brought to our attention. And, certainly, I understand their position of putting it on

the record. What more can be said.

(App. A003196).

Judge Newman then instructed the sheriff:

Sheriff, at this point, I will certainly agree that security is imperative. . . .

I believe that if you would use the leg irons, in addition to the chains, but, at this

point, I would not want to have him shackled in the presence of the jury with his

The sheriff tested the key that day and was able to open two out of three pairs of handcuffs.

(App. A003543).

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shackles being visible due to the effect that it may have on his right to a fair trial.

We’ll step up the measures and if anything further happens, I’m sure you’ll be on top

of it and we can address it from there. Thank you very much.

(App. A003197). The court then brought the jurors back in and dismissed them for the night. (App.

3198-3200). After the jury’s dismissal, in an ex parte meeting, Mr. Walters indicated Mahdi was

considering pleading guilty, but wanted additional time to think about it and consult with his

grandmother. (App. A003207-08). The next day, before the jury arrived, Mr. Walters indicated

Mahdi wanted to plead guilty to all charges. (App. A003212). The court held a brief competency

hearing (App. A003215-19), and then began the plea colloquy (App. A003219).

As part of the colloquy, the court asked Mahdi if he had any complaints about his lawyers,

the solicitor, or any of the police officers involved in his case (App. A003229), prompting the

following exchange:

DEFENDANT MAHDI: I was kept in full body restraints all night last night. And

I was told that I was going to be kept in full body restraints through the whole trial

all day, all night, Your Honor. And that’s my complaint.

While I’m in a secure cell at the detention center, there is completely no need for me

to be in full body restraints while in the cell. That’s my only complaint, Your Honor.

THE COURT: And has that fact had any bearing whatsoever on your decision to

plead guilty?

DEFENDANT MAHDI: I’d be lying if I said I didn’t.

THE COURT: Sir?

DEFENDANT MAHDI: I’d be lying if I said it didn’t.

THE COURT: The fact that you have been placed in a full body restraint, has - DEFENDANT MAHDI: All night.

THE COURT: All night - 23

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DEFENDANT MAHDI: Yes, sir.

THE COURT: Has that caused you to decide to plead guilty?

DEFENDANT MAHDI: Your Honor, there wasn’t no - - it wasn’t a very, you

know, very big reasons. It’s a small like a slight diversion, you know.

THE COURT: A slight diversion?

DEFENDANT MAHDI: Yeah, a slight diversion, but it’s not nothing - - it’s nothing

major. There was no major persuasive mood. It’s mostly irritating, extremely

irritating. And I felt it was unnecessary. I’m in a secure cell, a secure location and

it’s just a means to hassle me, that’s what I felt it was.

THE COURT: Means to do what?

DEFENDANT MAHDI: It’s a means to hassle me.

THE COURT: To hassle you?

DEFENDANT MAHDI: Yeah. Yes, sir, Your Honor. But I, in no way, feel that

that, you know, it’s almost petty, you know, it’s childish to me that the director of the

Orangeburg Detention Center will resort to that childish ways, you know.

Yeah, and I said that on television. The Orangeburg director of the detention center

is childish. He resorted to childish ways, okay, Your Honor, and - - but in no way,

did that persuade me to plead guilty. It’s just irritating. And I feel that - - I feel that

it was unnecessary, Your Honor. It was extremely unnecessary.

But as far as Calhoun County, they did not mistreat me. I was not coerced in any way

by this county to plead guilty.

THE COURT: Do you wish to proceed with the guilty plea?

DEFENDANT MAHDI: Yes, Your Honor. I just felt it was necessary to mention

that.

THE COURT: Are you, in fact, guilty of the charges against you.

DEFENDANT MAHDI: Yes, sir, Your Honor.

(App. 003229-31). Contrary to the record, Mahdi now contends that he pled guilty because of the

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full body restraints.

Mahdi first contends that “[i]f trial counsel had objected pursuant to Deck v. Missouri, 544

U.S. 622 (2005), then the trial judge would have inquired further into the matter.” (ECF No. 113

at 12). “[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the

jury absent a trial court determination, in the exercise of its discretion, that they are justified by a

state interest specific to a particular trial.” Deck, 544 U.S. at 629. Here, after security discovered

Mahdi’s homemade key, Judge Newman reasonably determined that Mahdi should be more securely

restrained. Thus, Judge Newman made a case-specific determination, on the record, because of a

security problem and risk of escape, that shackling Mahdi was necessary. This is exactly the type

of individualized security determination contemplated in Deck. See id. (“Such a determination may

of course take into account the factors that courts have traditionally relied on in gauging potential

security problems and the risk of escape at trial.”); id. at 632 (“We do not underestimate the need

to restrain dangerous defendants to prevent courtroom attacks, or the need to give trial courts latitude

in making individualized security determinations. We are mindful of the tragedy that can result if

judges are not able to protect themselves and their courtrooms.”). However, Judge Newman also

expressed his concern regarding Mahdi’s due process rights and indicated he should not be shackled

“in the presence of the jury.” (App. A003197).

Judge Newman found Mahdi’s escape plan justified “stepping up” Mahdi’s restraints, but

that those restraints should not be used in front of the jury. (See App. A003197 (“I believe that if

you would use the leg irons, in addition to the chains, but, at this point, I would not want to have him

shackled in the presence of the jury with his shackles being visible . . . .”)). And, the record indicates

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the potential jurors never saw Mahdi’s restraints.10 Trial counsel had no reason to object pursuant

to the holding in Deck.11

Mahdi also argues that the use of full body restraints while at the detention center was

intended to “hassle” Mahdi and caused him to plead guilty. (ECF Nos. 113 at 15-16). Mahdi

contends that trial counsel should have objected on the ground that these enhanced security measures

exceeded the scope of Judge’ Newman’s order, and requested another hearing to determine whether

full body restraints were necessary at the detention center. (ECF No. 113 at 13, 16).

Even if trial counsel were somehow deficient, Mahdi has not offered any evidence, other than

his own conclusory and self-serving statements, to establish that he would not have pled guilty if he

had not been restrained. Mahdi has not shown any reason for this court to doubt his representation

to Judge Newman made under oath during the plea colloquy that his restraints had no bearing on his

decision to plead guilty.

See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“[T]he

representations of the defendant . . . [during the plea hearing], as well as any findings made by the

judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.

Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation

of conclusory allegations unsupported by specifics is subject to summary dismissal, as are

contentions that in the face of the record are wholly incredible.”). In addition, the record shows

Mahdi began to consider pleading guilty before the ex parte meeting with Judge Newman, which was

The court notes that Madhi’s sentencing ultimately took place before Judge Newman, not

a jury, which eliminates the risk that the jury could have inferred “that court authorities consider the

offender a danger to the community.” Deck, 544 U.S. at 633.

Moreover, as even Mahdi has admitted, Judge Newman’s ruling complied with Deck. (See

ECF No. 113 at 15 (“[Judge Newman’s] ruling, if followed, would have prevented a violation of

Deck.”) (emphasis in original)).

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before he was fully restrained. Moreover, uncontested testimony from trial counsel during the PCR

evidentiary hearing suggests Mahdi chose to plead guilty as a matter of trial strategy. (See App.

A001921-23).

For these reasons, Mahdi’s underlying claim of ineffective assistance of trial counsel lacks

merit and Mahdi cannot excuse the procedural default of Ground One under Martinez. Accordingly,

Mahdi is not entitled to relief on Ground One.12

GROUND TWO – MITIGATING EVIDENCE

In Ground Two, Mahdi alleges his trial counsel were ineffective in failing to adequately

investigate, develop, and present mitigating evidence. (ECF No. 75 at 14-29). Mahdi raised this

claim in his PCR application as Ground 10(a)/11(a)(iii) (see App. A000236) and the PCR court

addressed this claim on the merits (App. A000085-181). The PCR Order divided Mahdi’s claim into

five different allegations of ineffective assistance of counsel: (1) Counsel should have interviewed

and called at sentencing several of Mahdi’s extended family members and also community members

to testify to his family, social, scholastic, and mental health history; (2) Counsel should have

presented the testimony PCR counsel presented at PCR through a different forensic social worker

than the one counsel used at sentencing; (3) Counsel should have introduced testimony from an

expert regarding the effect of Mahdi’s life of incarceration on Mahdi; (4) Counsel failed to

adequately investigate, develop, and present evidence concerning Mahdi’s mental health history or

In addition, because Mahdi has failed to show his underlying ineffective assistance of trial

counsel claim is substantial or to properly allege facts that, if proven, would entitle him to relief, the

court denies Mahdi’s request for an evidentiary hearing on this ground. See Schriro v. Landrigan,

550 U.S. 465, 474 (2007) (“In deciding whether to grant an evidentiary hearing, a federal court must

consider whether such a hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.”).

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mentality; and (5) Counsel failed to introduce certain documents at sentencing such as certain school

records, Mahdi’s DJJ records, records from Mahdi’s commitment to the Walter Carter Center at age

nine, and his father’s records, and counsel failed to call school officials. (App. A000085-86).

On PCR appeal, Mahdi presented one question: 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. (ECF No. 31-18 at 5). Accordingly, after a thorough review of Mahdi’s petition for writ

of certiorari (ECF No. 31-18), the State’s return (ECF No. 31-19), and Mahdi’s reply (ECF No. 3120), the court finds the following allegation preserved and will address it under § 2254(d): trial

counsel were ineffective in failing to investigate and present mitigating evidence from non-family

lay witnesses.13

Mahdi did not raise the remaining claims in Ground Two in his PCR appeal. However, in

his second PCR action, Mahdi sought to appeal this ground, as presented in his initial PCR

application, pursuant to Austin v. State, 409 S.E.2d at 395.14 (ECF No. 46-1 at 2-3). In finding

Mahdi was not entitled to an Austin appeal, the second PCR court noted, “Austin is only applicable

See Reply to Return to Petition for a Writ of Certiorari, ECF No. 31-20 at 5 (“Mahdi

contends that the PCR court erred in denying his claim that available non-family members, i.e.,

members of the community, including his former teachers, should have been called as witnesses.”)

In Austin, the state court denied petitioner’s PCR application and PCR counsel failed to

seek appellate review. 409 S.E.2d at 396. Petitioner filed a second application alleging only that

his PCR counsel were ineffective for failing to appeal and that application was summarily dismissed.

Id. On a petition for rehearing, the Supreme Court of South Carolina noted its previous recognition

of a prisoner’s right to the assistance of appellate counsel in seeking review of the denial of PCR,

found petitioner sufficiently stated a claim of ineffective assistance of counsel, and remanded for an

evidentiary hearing. Id.

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where the applicant wished to appeal from the denial of PCR but was denied the opportunity to seek

appellate review or the right to appellate review of a previous PCR order was not knowingly and

intelligently waived.” (ECF No. 66-1 at 29). Neither of those situations was present in this case,

where Mahdi “already had a full round of PCR remedies,” id. at 10, and was represented on PCR

appeal by qualified counsel. Further, the court stated ineffective assistance of PCR appellate counsel

was not a recognized exception allowing a petitioner to file a second or successive PCR application.

Id. at 29. Mahdi appealed that decision to the South Carolina Supreme Court, which dismissed his

appeal and denied his petition for rehearing. (See ECF No. 126-1 (April 19, 2018, order dismissing

appeal); ECF No. 135-2 (June 27, 2018, order denying petition for rehearing); ECF No. 135-3 (June

27, 2018, remittitur)).

Although the state courts denied Mahdi’s second PCR application on procedural grounds,

Mahdi has fairly presented his allegations to the state’s highest court and has thus technically

exhausted the remaining claims in Ground Two. However, because these claims were not properly

preserved, they are procedurally barred. See Matthews v. Evatt, 105 F.3d 907, 915 (4th Cir. 1997),

abrogated on other grounds by United States v. Barnette, 644 F.3d 907 (4th Cir. 2011). Mahdi

asserts several arguments to overcome the procedural bar, all of which the court will address after

it considers the preserved portion of Ground Two.

Under Strickland,

[S]trategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation. In other words,

counsel has a duty to make reasonable investigations or to make a reasonable

decision that makes that particular investigation unnecessary. In any ineffectiveness

case, a particular decision not to investigate must be directly assessed for

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reasonableness in all the circumstances, applying a heavy measure of deference to

counsel’s judgments.

466 U.S. at 690-91. Thus, counsel must conduct a reasonable investigation, thorough enough to

make an informed decision regarding which mitigating evidence to present. In assessing counsel’s

investigation, the court “must conduct an objective review of their performance, measured for

‘reasonableness under prevailing professional norms,’ which includes a context-dependent

consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’” Wiggins

v. Smith, 539 U.S. 510, 523 (2009) (quoting Strickland, 466 U.S. at 688, 689).

Further, to establish a Sixth Amendment violation, Mahdi “must show that but for his

counsel’s deficiency, there is a reasonable probability he would have received a different sentence.”

Porter v. McCollum, 558 U.S. 30, 41 (2009). “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. To assess that probability,

the court must “evaluate the totality of the evidence–‘both that adduced at trial, and the evidence

adduced in the habeas proceeding’–and ‘reweig[h] it against the evidence in aggravation.’” Porter,

558 U.S. at 41(quoting Williams v. Taylor, 529 U.S. 362, 397-98 (2000)).

Relevant Background

The Evidence at Sentencing

The State presented an extensive case in aggravation, consisting of twenty-eight witnesses

and an in-person visit to the crime scene. (See App. A003253-3579). The trial judge heard moving

victim impact evidence from Captain Myers’s wife, Amy Trip Myers (App. A003271-3301); father,

Edward Myers (App. A003554-3562); daughter, Meredith Myers Firestone (App. A003562-3568);

and several of his former co-workers and friends at the Orangeburg Department of Public Safety,

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including Lieutenant William Alexander Cartwright, III (App. A003472-3475), Captain Michael

Anthony Adams (App. A003476-3484), and Chief Wendell Davis (App. A003546-3553).

In addition, the State detailed Mahdi’s history of trouble with law enforcement. Sheriff James

R. Woodley, from Brunswick County, Virginia, described attempting to serve a juvenile detention

order on Mahdi when he was fifteen years old. (App. A003302-3311). Mahdi had been convicted

of breaking and entering in Mecklenburg County, North Carolina, and had failed to appear for

sentencing. (App. A003304). When Sheriff Woodley approached Mahdi’s house, Mahdi and his

father locked themselves inside and refused to come out for approximately eight hours. (App.

A003306). When Mahdi finally came out and the police had him in custody, fifteen-year-old Mahdi

stated, “I’m going to kill a cop before I die.” (App. A003307).

Mahdi then spent time at the Virginia Department of Juvenile Justice (“DJJ”). Linda Lee

Coulson, a counselor at the DJJ Reception and Diagnostic Center for Children, evaluated Mahdi, and

testified regarding her assessment. (App. A003311-28). In addition, the State admitted Ms.

Coulson’s evaluation into evidence. (App. A003314 (evaluation admitted); ROA 1867-75 (Coulson

Evaluation)). In her evaluation, Ms. Coulson indicated Mahdi lived with his father, who was

unemployed and reportedly had a criminal record for vandalism and escape. (ROA 1869). She

stated Mahdi’s mother was a nurse in Richmond, Virginia, and that Mahdi had infrequent contact

with her, but denied that as a source of anxiety. Id. Ms. Coulson reported Mahdi’s brother had

joined Job Corps and was pursuing vocational training. Id. at 1869-70. Mahdi told Ms. Coulson he

was closer to his brother than to any other family member. Id. at 1870.

Based on her conversations with Mahdi and information provided by the court and contained

in his records, Ms. Coulson found Mahdi was “the product of a dysfunctional single parent family

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characterized by a lack of involvement with his mother, an absence of a positive adult role model,

instability, unemployment, and a lack of structure and supervision.” Id. She went on to note:

While Mikal advised that he and his father have a positive relationship, it appears

that his father has placed little emphasis on supervision of Mikal, and has even

provided a poor adult role model for his son. Information provided by the court and

by Mikal would indicate that his father has made little attempt to reinforce Mikal’s

receiving an education, and his father refused to comply with court requests during

Mikal’s court involvement. Reports note that court workers were required to have

a show cause issued in order to compel his father’s cooperation. While Mikal

claimed that he views his family as nurturing and supportive, it appears that Mikal

has not been closely involved with either parent and has not been held accountable

for his behavior. Mikal advised this counselor that his father showed minimal

reaction when he learned that Mikal was involved with larceny of firearms.

Id. When Ms. Coulson asked Mahdi to describe himself, he stated he was “a quiet person who ‘is

always up to something’” and denied any strengths other than “‘robbing people.’” Id.

In addition, while discussing previous charges and an attempt to escape from police, Mahdi

indicated he did not “feel all that bad about stealing” and Ms. Coulson noted he “appeared to

consider that attempting to escape was to be expected.” (ROA 1873). Ms. Coulson stated that,

while Mahdi admitted to his crimes, he viewed his commitment as unfair and “failed to accept

complete responsibility for his behavior.” Id. Based on his comments, Ms. Coulson concluded

Mahdi had “no respect for the rights and property of others,” was “without remorse,” had “little

empathy for the impact of his behavior upon others,” and “did not appear to be motivated to avoid

future court involvement.” Id. In considering a placement recommendation, Ms. Coulson noted,

during his time at the reception center, Mahdi had not adjusted well, had remained self-focused,

bragged about the past, and exhibited aggressive behavior toward his peers. (ROA 1875). That

aggressive behavior apparently included assaulting another youth at the facility. (App. A003317-18).

Ms. Coulson recommended supportive services to provide more adequate structure and supervision

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after his release and a highly structured environment while in state care, “where he could address the

following issues: substance abuse services, values clarification, assertiveness training, self-esteem,

family services, and problem solving skills.” (ROA 1873-74).

The State also admitted into evidence portions of Mahdi’s DJJ running case record. (App.

A003489 (records admitted); ROA 2137-85 (DJJ record) ). According to the record, Mahdi attended

and participated in a weekly anger management group. (ROA 2137, 2138, 2139, 2140). However,

Mahdi was expelled from the anger management group due to “aggressive and inappropriate

behavior.” (ROA 2141). When his counselor informed Mahdi he had been removed from the group,

Mahdi threatened that if he was not released on time, he would “fuck people up and go around acting

crazy.” (ROA 2141). Counseling notes indicate, at some point, Mahdi was charged with attempting

to assault a guard and was placed in isolation. (ROA 2139-40). He also made suicidal and

homicidal threats. (ROA 2144-45). The record contains numerous references to Mahdi’s refusal

or inability to take responsibility for his actions. (ROA 2141 (“Mahdi stated that he is not

responsible for his actions.”), 2144 (“Mahdi fails to realize that he is responsible for his own

actions.”), 2145 (“It is this counselor’s opinion that Mahdi is ‘self-entitled’ as he takes no

responsibility for his own actions.”)). The record also references concerned phone calls from

Mahdi’s father and grandmother. (ROA 2137, 2138, 2141-42, 2145-47). In one phone call, Mahdi’s

father accused the system of being prejudiced and trying to break Mahdi’s spirit and stated “Virginia

is full of white supremacists” (ROA 2146).

Officer Michael Koehler, with the Richmond City Police Department in Richmond, Virginia,

also testified and described another incident that took place on November 23, 2000, when Mahdi was

seventeen years old. (App. A003333-3346). Officer Koehler was dispatched to Mahdi’s father’s

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house to serve a summons on Mahdi for slashing his mother’s tires and to execute an outstanding

detention order. (App. A003334). Mahdi got upset and Officer Koehler had to wrestle him to the

ground. (App. A003335). While on the ground, Mahdi attempted to reach for another officer’s gun.

Id. Mahdi’s father tried to intervene on his son’s behalf and Officer Koehler had to pepper spray

Mahdi and his father and use his asp baton on both to regain control of the situation. (App. A00333536). After the officers detained him, Mahdi stated he slashed his mother’s tires because she would

not come to the door when he knocked, referred to her as a “crazy bitch,” and said he should have

killed her. (App. A003336-37). He also asked the officers to shoot him. (App. A003337).

Judge Newman also heard testimony from Moises Rivera, whom Mahdi almost stabbed to

death in Richmond, Virginia, on April 17, 2001. (App. A003347-3359). Mr. Rivera was a

maintenance supervisor at an apartment building in Richmond. (App. A003348-49). His supervisor

asked him to see about a large group of young people behind one of the buildings. (App. A003349).

On his way, he ran into Mahdi, who was looking into an apartment window. (App. A003349-50).

Mr. Rivera asked Mahdi what he was doing and Mahdi jumped him. (App. A003350). Mahdi

stabbed Mr. Rivera five times in the back and once in the arm and then ran away. Id. Rivera

testified he actually died in the ambulance and had to be revived. (App. A003351). He suffered a

punctured lung, had to be hospitalized for six days, and his pain and injuries kept him out of work

for two months. (App. A003350-51). Mahdi was subsequently arrested and convicted of malicious

wounding, a felony in Virginia. (App. A003361). He was sentenced to 180 months, with 141 months

suspended, conditioned on a period of supervised probation up to fifteen years upon his release.

(App. A003361-62). Mahdi was released on May 12, 2004. (App. A003362). His conditions of

probation included not leaving Virginia; obeying all federal, state, and local laws; not using,

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possessing, or distributing controlled substances; and not using, owning, possessing, transporting,

or carrying any firearm. (App. A003363-64).

Amanda Jean Weaver, Mahdi’s grandmother’s next door neighbor, testified that shortly after

his release, Mahdi told her he was selling marijuana. (App. A003376). Mahdi also, reportedly, asked

Ms. Weaver to help him assemble a black nine millimeter handgun. (App. A003377). And, Mahdi

stole Ms. Weaver’s .380 semiautomatic pistol, which he eventually used in the series of crimes

leading to his South Carolina conviction. (See App. A003379-80, A003468-72).

Judge Newman also heard testimony about the series of crimes that culminated in Captain

Myers’s murder and Mahdi’s eventual capture in Florida. Michael S. Poe and Phillip Seats, officers

in Winston-Salem, North Carolina, testified regarding their investigation of the murder of

Christopher Jason Boggs, a cashier at an Exxon gas station, on July 15, 2004. (See App. A00344366). A surveillance video showed Mahdi placing a forty ounce beer on the counter, shooting Mr.

Boggs in the face, then getting on the counter, pointing his gun down at Mr. Boggs lying on the floor,

and firing a second shot. (Test. of Michael S. Poe, App. A003447). The surveillance tape was

admitted into evidence and played, in its entirety, for the court. (App. A003455-56). In addition,

a fingerprint analysis and comparison expert matched the fingerprints at the scene to Mahdi’s

fingerprints (Test. of Phillip Seats, App. A003458-66), and a firearm analysis expert testified the gun

used to kill Mr. Boggs was the same gun stolen from Ms. Weaver (Test. of Neal Morin, App.

A003471).

Corey T. Pitts testified that Mahdi car-jacked him at gunpoint in downtown Columbia, South

Carolina, on July 18, 2004. (App. A003406-07).

Stephen Curtis, an agent with the South Carolina State Law Enforcement Division (“SLED”)

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in Columbia, testified about responding to the Myers murder scene and going to Florida to process

the truck Mahdi escaped in. (App. A003417-41). He described the scene and the condition of

Captain Myers’s body and identified crime scene photos for introduction into evidence. Dr. Janice

Edwards Ross, the forensic pathology expert who performed Captain Myers’s autopsy, described

Captain Myers’s body and gave her findings. (App. A003569-79). She testified that Captain Myers

had nine gunshot wounds—three in his head, five in his chest and abdomen, and one in his hand.

(App. A003573-74). Dr. Ross also found evidence that Captain Myers had been set on fire. (App.

A003572).

Sargent Darren Frost, from the Satellite Beach, Florida, police department, testified about

capturing Mahdi and taking him into custody. (App. A003253-3271). The police attempted to stop

Mahdi for driving erratically, but he jumped out of the moving truck, dropped a fully loaded assault

rifle, and fled to a nearby condominium complex. (App. A003255-64). Sargent Frost tracked Mahdi

with a canine unit and, after some struggle, was able to detain him. (App. A003264-67). Once back

at the station, Sargent Frost thanked Mahdi for dropping his gun and not shooting him. (App.

A003270). Mahdi looked at him and said the selector was stuck on a three shot and he did not think

he could shoot both officers and the dog. Id.

The State also presented evidence of Mahdi’s behavior since his arrest. Mahdi was housed

in Lee Correctional Institution in Bishopville, South Carolina, from July 2004 until June 17, 2005.

On January 18, 2005, Mahdi was subject to a disciplinary hearing for striking Officer G. Tony.

(Test. of Henry Lee Johnson, App. A003491-92). During the disciplinary hearing, Mahdi stated the

next chance he got, he was going to “kill that mother fucking officer.” (App. A003492). On

February 9, 2005, officers left Mahdi alone in a conference room briefly after an interview. (Test.

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of Wickliffe McPherson, App. A003497-98). When they returned and searched the room, the

officers found that the cover to a wall socket had been removed and metal pieces were missing.

(App. A003498). Officers searched Mahdi and found he had the metal pieces. (App. A003499).

The officers then searched Mahdi’s cell and found a rope made with sheets that was about fifteen

feet long. (App. A003500). On March 10, 2005, a routine cell search turned up a thirteen foot long

rope and pieces of metal. (Test. of Henry Lee Johnson, App. A003492-94). And on May 6, 2005,

a routine cell search revealed hidden pieces of metal. (Test. of Terrance Prioleau, App. A00350304).

On June 7, 2005, Mahdi submitted an inmate grievance form regarding the grievance

coordinator’s delayed response time. (Test. of Janet Driggers, App. A003508-09). The grievance

form read: “I cannot be diplomatic with you people, so my last action would be to kill you. Why

not? You’re not good to anybody. I could easily get someone to murder you. What is wrong with

you, bitch? I bet you’ll respond quick to this, won’t you? You people think this shit is a game.”

(App. A003509). Mahdi was charged with threatening to inflict harm on an employee. Id. At

Mahdi’s June 14, 2005 disciplinary hearing for this charge, he continued to threaten the grievance

coordinator. (Test. of Annie Sellers, App. A003521-22). The hearing officer had to recess the

hearing and remove Mahdi from the hearing room. (App. A003523-24). Even while being removed

from the room and escorted down the hallway, Mahdi continued to make threats. (App. A003524).

The State played a tape of this hearing for the court. (App. A003523).

Mahdi was transferred to Kirkland Correctional Institution in Columbia, South Carolina,

shortly after this disciplinary hearing. Gary Lane, Captain at Kirkland, described the institution and

two incidents with Mahdi. (App. A003526-38). Captain Lane testified that Kirkland gets the worst

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of the worst inmates. (App. A003527). It is a fifty-bed maximum security institution where inmates

are housed individually and are kept in full restraints and escorted by two officers at all times. Id.

On March 29, 2006, officers discovered a hammer-like weapon in Mahdi’s cell constructed of a

piece of drain cover, two toothbrushes, a string from his mattress, and a paper form. (App.

A003529-30). After this discovery, Captain Lane moved Mahdi to the High D Wing, where the six

highest security risk inmates in Kirkland are housed, because he was concerned for his staff’s safety.

(App. A003528, A003531). In the High D Wing, the lights are kept on twenty four hours a day and

there are cameras in every cell. (App. A003528). This is the most secure area within the South

Carolina Department of Corrections (“SCDC”). (App. A003538). On May 19, 2006, Captain Lane

noticed through surveillance footage that Mahdi had been spending time under an area where the

televisions were kept. (App. A003531). He sent a team to Mahdi’s cell and they found two pieces

of metal, one sharpened to a point, and a piece of knotted rope. (App. A003533).

And, as discussed in Ground One, the trial court heard from Sheriff Thomas S. Summers,

who was in charge of courthouse security for the trial, regarding Mahdi’s homemade handcuff key.

(App. A003538-3546). Sheriff Summers’ testimony indicated Mahdi made the key while housed in

High D Wing; requested Sheriff Summers switch his leg braces to leg irons, with which the key

would more likely work; brought the key from his cell to the courthouse on multiple days, hidden

in his mouth; and failed to use it only because courthouse security denied him the opportunity. (See

App. A003539-43).

On cross-examination of the State’s prison employee witnesses, trial counsel elicited

testimony emphasizing that SCDC was well-equipped to handle each situation, finding contraband

was fairly routine in a prison setting, and Mahdi had not escaped or used the contraband to hurt

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anyone. (See App. A003502, A003505-06, A003534-37).

Trial counsel reinforced this idea by presenting James Aiken, an expert in prison adaptability.

(See App. A003580-3615). Mr. Aiken testified that, in his expert opinion, SCDC had managed

Mahdi “for several years in an adequate manner.” (App. A003593). Regarding Mahdi’s behavior

and contraband infractions, Mr. Aiken said the severity of those infractions was reduced when

considered in the context of the prison population and that such infractions were fairly routine in

high security areas. (App. A003592-93 ). Mr. Aiken painted a picture of Mahdi as an immature boy

with no backup in a prison full of violent predators and gangs. (App. A003596-97). He suggested

Mahdi would be victimized and possibly resort to self-mutilation or suicide. (App. A003597). Mr.

Aiken described the force continuum available to SCDC to control Mahdi’s movements or punish

bad behaviors. (App. A003598-601). Mr. Aiken concluded:

Mr. Mahdi is an immature person that’s done some terrible things in the community

and as a result, he will remain in a prison environment for the rest of his life. And

that prison system can adequately manage him with the type of security, technology,

rules, regulations, training, physical structures, et cetera for the remainder of his life

without causing an undue risk to staff, inmates, as well as the general public. And

even if they deem it appropriate that they don’t want to supervise him, there are other

prison systems, such as the federal level, that can adequately manage any type of

inmate.

(App. A003602).

Defense counsel’s only other witness was Marjorie Hammock, an expert in clinical social

work, who conducted a biopsychosocial assessment. (See App. A003615-39). Ms. Hammock

testified that to conduct her assessment she interviewed: Rose Burwell, Mahdi’s paternal

grandmother; Nathan Burwell, Mahdi’s paternal uncle; Carson and Lawanda Burwell, Mahdi’s

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paternal uncle and aunt; Vera Mahdi, Mahdi’s mother;15 Corlis Ardis and Sophia Gee, Mahdi’s

maternal aunts; and an unnamed member of the community who did not know much about Mahdi.16

(App. A003622-23). In addition, Ms. Hammock reviewed a synopsis of Mahdi’s school records and

a mental health report from his commitment to a mental health institution in Baltimore, Maryland.

(App. A003623). Ms. Hammock presented her findings in a two page time line and a half page

school experience summary, both of which were admitted into evidence. (See App. A003623 (time

line admitted into evidence), A003630 (school experience summary admitted into evidence),

A007543–44 (time line),17 A007515 (school experience summary)).

Ms. Hammock testified that Mahdi’s father, Shareef, was an extremely troubled child. (App.

Vera is also referred to as “Tilea” throughout the record. Mahdi’s father changed her name

to Tilea when they married. (App. A004188). For ease of reference, the court will refer to her as

Vera in this order.

From Ms. Hammock’s testimony at the sentencing and testimony from trial counsel’s

mitigation investigator offered at the PCR evidentiary hearing, it appears Ms. Hammock also

interviewed Shareef Mahdi, Mahdi’s father. (See App. A001805 (trial counsel’s mitigation

investigator testifying she and “a social work expert” traveled to Philadelphia, where Shareef was

living at the time)).

The time line admitted into evidence contains the following information not included in Ms.

Hammock’s oral testimony: “1975 Sareef [sic] involved in a series of misdemeanors locally all said

to be racially motivated”; “1988 Vera (Tilea) is taken to Lawrenceville from Richmond by Sareef

[sic] who abuses her. Nathan rescues Vera. Mikal and Saleem witness more abuse and violence”;

“8/23/92 Mikal involuntary admission in a psychiatric facility after suicide threat/gesture and Mikal

hospitalized Admission DX Axis I, Major Depression with suicidal ideation, adjustment disorder,

R/O Adjustment Disorder, Axis II Developmental Reading Disorder, Axis III Hx of right arm and

right leg fractures”; “10/19/92 Mikel [sic] discharged from Walter P. Carter Mental Health.

Discharge DX Axis I Major Depression, Single Episode[.] Mikal also becomes more disruptive in

his uncle’s home in order to force his return to Lawrenceville to join his father and brother. He has

become even more defiant after he learns that his brother has joined his father. The three reunite and

live on Burwell property with the boys. This was an isolated place in the country and they often had

no food, heat or money.” The time line ends in April 2001, when Mahdi was transferred to the

Virginia Department of Corrections. (App. A007544).

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A003625). Shareef attended the local, formerly white, school shortly after desegregation and

recalled being traumatized by the experience. (App. A003626). He was constantly in conflict with

and alienated from those around him and considered himself unwanted. Id. Ms. Hammock stated

there was alcoholism and neglect in Shareef’s family. Id. Shareef was the only one of his siblings

to not finish school; instead, he joined the Marines. Id. After he was discharged from the Marines,

Shareef converted to Islam and changed his name. (App. A003626-27). He had odd jobs, but was

not able to function well, struggled with depression, and had a number of incidents with local law

enforcement. (App. A003627).

Shareef was twenty-seven and Vera was sixteen when they had an arranged marriage. Id.

Ms. Hammock described the marriage as full of conflict, very unstable, and chaotic. Id. Shareef

was unable to support his family and they moved several times, eventually living with Mahdi’s

grandmother in Lawrenceville, Virginia. Id. Ms. Hammock testified Mahdi and his older brother,

Saleem, witnessed a “great deal of conflict” between their mother and father and that, when Mahdi

was four or five, Vera left the family to “get away from the abuse.” (App. A003627-28).

After Vera left, Shareef struggled to take care of the boys. (App. A003628). Mahdi’s

grandmother tried to help, but she and Shareef had a very confrontational relationship. Id. At some

point, Shareef forced Vera to return to Lawrenceville from Richmond. Id. Ms. Hammock testified

Vera returned “ostensibly to see the boys, but that result[ed] in, again, some physical conflict. And

she le[ft] again not to see her son for a number of years.” Id.

Ms. Hammock stated Mahdi had difficulty in school. Id. He was considered bright, but did

not perform well, was a poor reader, and struggled with his self-esteem. (App. A003628-29).

In 1991, Shareef sent Mahdi to live with his aunt and uncle, Carson and Lawanda Burwell,

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in Baltimore, Maryland. (App. A003629). Carson and Lawanda described Mahdi as a bright and

energetic young boy, but very, very troubled and indicated he had difficulty in school. Id. Carson

told Ms. Hammock that Mahdi could not read at all when he came to live with them. Id.

Regarding Mahdi’s education, Ms. Hammock listed the schools he attended18 and

summarized parts of his records from second and third grade. (App. A003630-32). In second grade,

records indicate Mahdi had uneven skills—he was placed in an average math program, but a below

average reading program—and needed improvement in his standards for behavior and showing

respect for authority. (App. A003631). In third grade, Mahdi was outstanding in science, but below

average in reading, vocabulary, and spelling. (App. A003631-32). The records also indicate Mahdi

struggled with self-esteem and had difficulty with relationships with others. (App. A003632). Ms.

Hammock also noted Mahdi’s education was disrupted several times by moves and, ultimately, by

his father removing Mahdi from school in order to homeschool him. Id.

Ms. Hammock testified Vera was very withdrawn, did not want to participate in the

interview, and seemed frightened of being involved with the family again. (App. A003632-33).

Vera and others described Vera’s abusive relationship with Shareef, but Ms. Hammock did not relate

any specifics. (See App. A003633). Mahdi lived with Vera for a short time when he was released

She testified Mahdi began kindergarten at Sister Clara Muhammad School in Richmond,

Virginia, but also attended kindergarten at Totaro Elementary School in Lawrenceville, Virginia.

(App. A003630-31). She stated records were not available, or were not legible, from Sister Clara

and there were not narrative records from Totaro. (App. A003631). Mahdi then started first grade

at Chamberlayne Elementary School in Richmond, Virginia. Id. Ms. Hammock stated records were

not available from Chamberlayne either. Id. Then, Mahdi was sent to Baltimore, Maryland, where

he attended Scotts Branch Elementary for second and third grade. Id. According to the school

experience summary, Mahdi attended Totaro Elementary for fourth grade and part of fifth grade,

until Shareef removed him in order to homeschool him. (App. A007515). The experience summary

also indicates Mahdi did not appear motivated in fourth grade and his potential was stifled. Id.

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from DJJ. Ms. Hammock described this as “not a good reunion,” said Vera and Mahdi “did not get

along at all,” and Vera said she and Mahdi “had very different kinds of ideas about his living with

her.” (App. A003634).

Ms. Hammock testified Mahdi’s child development was greatly impacted by his father’s

inability to properly parent. (App. A003635). Mahdi’s childhood was marked by conflict, chaos,

and a lack of stability. (App. A003636-37). During adolescence, Mahdi was exposed to his father’s

outbursts and problems, including his conflicts with his own family, the community, and law

enforcement. (App. A003637). She stated that more than anything, Mahdi wanted an intact family

and an ongoing relationship, but he never received consistent help from his mother or father in

growing up and developing good skills and a sense of values. Id. Ms. Hammock opined Mahdi had

suffered emotional trauma throughout his early life, which “had an impact on his inability to make

good choices, to have a good sense of himself and others and to behave according to societal norms.”

(App. A003638). She stated Mahdi had the following risk factors: abuse and neglect; abandonment;

lack of proper socialization; poor self-esteem; poor history of school progress; and poor sense of

himself. Id.

Ms. Hammock concluded:

[S]omeone who is neglected, was abandoned, who suffers from poor parenting is

likely to end up in a situation where he’s out of control and he does damage to

himself and others. This is - - we find this profile all too frequently in people who

end up in this kind of situation. He never had really a chance to develop

appropriately.

(App. A003638-39).

In addition to these two witnesses, it appears trial counsel intended to call Mahdi’s

grandmother, who was present in the courtroom, but, after speaking with her during a break, counsel

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did not call her and, instead, rested. (See App. A003639).

The Sentencing Order

Judge Newman read his twelve page sentencing order into the record. (See App. A0036863702). After reciting the facts, Judge Newman found the State had proven the existence of two

aggravating circumstances beyond a reasonable doubt, thus allowing him to consider the death

penalty.

(App. A003691).

Judge Newman then considered the nonstatutory aggravating

circumstance of Mahdi’s prior and subsequent bad acts, which were “relevant to show his bad

character, evil nature, and malignant heart,” and found the State had established Mahdi’s bad

character and propensities by clear and convincing evidence. (App. A003692-95). Judge Newman

considered the mitigating circumstances argued by the defense and any mitigating circumstances

supported by the evidence, including Mahdi’s youth, “turbulent and transient childhood and

upbringing,” prison adaptability, and acceptance of responsibility through pleading guilty. (App.

A003695-99). Judge Newman found none of these mitigating circumstances deserving of significant

weight. (App. A003696-99). Judge Newman also considered victim impact evidence. (App.

A003699).

In sentencing Mahdi to death, Judge Newman stated:

My challenge and my commitment throughout my judicial career has been to temper

justice with mercy and to seek to find the humanity in every defendant that I

sentence. That sense of humanity seems not to exist in Mikal Deen Mahdi.

....

Today, the defendant also seeks mercy, the same mercy that perhaps Captain James

E. Myers sought for an instant before Mikal Deen Mahdi fired nine bullets into

Captain Myers’ body from one of Captain Myers’ prized weapons before setting his

body on fire with matches and diesel fuel belonging to Captain Myers. In

extinguishing the life, hope and dreams of Captain Myers in such a wicked, depraved

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and consciousless manner, the defendant, Mikal Deen Mahdi, also extinguished any

justifiable claim to receive the mercy he seeks from this Court.

(App. A003700-01).

The Evidence at PCR

Mahdi’s PCR counsel presented an extensive and thorough account of Mahdi’s background,

including his family history, upbringing, mental health, and incarcerations. Counsel presented five

family members. Carson Burwell, Mahdi’s paternal uncle, and his wife, Lawanda Burwell, provided

insight into Mahdi’s time spent in Brunswick County, Virginia, and Lawrenceville in particular. (See

App. A001260-61, A001481). They testified regarding the Burwell family’s background and history,

including their racial views and family tensions. (See App. A001262-66, A001269-70, A001484-85,

A001487-89). Carson described his upbringing and how he and Shareef related to their parents, how

Shareef changed after attending a desegregated school, Shareef’s marriage to Vera, and Shareef’s

parenting of Mahdi and Saleem. (See App. A001267-82). Both also testified regarding the period

of time when Mahdi lived with them in Baltimore, Maryland. (See App. A001282-92, A0014941513). Lawanda, who has a doctorate in maternal child health from the Harvard School of Public

Health, described Mahdi’s emotional issues around learning and how they were attempting to

overcome the gaps in his education. (See App. A001499-1503).

Both Lawanda and Carson recounted Mahdi’s abuse allegation against Lawanda in August

1992 when he was approximately ten years old. (App. A001286-92, A001503-08). After a spanking

from Lawanda, Mahdi put soot from the fireplace and ketchup on himself to give the appearance of

severe injuries and called the police. At some point, Mahdi asked one of the responding officers for

his gun so he could shoot himself and was immediately taken to the Walter Carter Center, a mental

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health facility, where he was admitted for around sixty days. After Mahdi was released, Carson and

Lawanda continued to take him to counseling for several months, but he would not participate in the

therapy and seemed to be doing well at that time, so they stopped. Lawanda testified at the end of

third grade, Mahdi was in a good place. (App. A001508). But, that summer, Mahdi discovered

Saleem had moved back in with Shareef and he wanted to be with his father and brother, so he began

acting out again. When Mahdi returned to Lawrenceville to live with his father, Shareef was not in

any better condition to take care of the boys than he had been when Carson took Mahdi and sent

Saleem to Texas. (App. A001514). Carson did not recall ever being interviewed by Mahdi’s

defense team and stated he definitely would have testified had he been asked. (App. A001294-95).

Lawanda remembered being interviewed by Ms. Hammock and Paige Tarr, the defense team’s

mitigation investigator, but she was not asked to testify. (App. A001514). She stated she was not

sure she would have agreed to testify if they had asked, but maybe she could have been convinced.

(App. A001515).

Sandra Wynn Burwell, who was married to Mahdi’s uncle, Nathan Burwell, Jr., from 1972

to 1983, and grew up in Brunswick County, provided an affidavit. Her affidavit also discussed the

Burwell family, Shareef’s background, and Shareef’s relationship with Vera. (App. A004154-55).

She provided more information on Vera and the end of Shareef and Vera’s relationship. (App.

A004155). According to Sandra, while living with Shareef and raising the boys, Vera managed to

get her GED and complete a nursing program at a junior college. Id. She then convinced Shareef,

who was unemployed, that she should join the military. Id. When she returned home from the

military, she informed Shareef she wanted a divorce and was taking the boys. Id. Shareef would not

allow that and Vera left without her sons. Shareef repeatedly told Mahdi and Saleem their mother

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abandoned them and did not love them. Id. Sandra attended the hearing when Mahdi was first sent

to DJJ after the stand-off with police. Id. She stated the failure to report was not Mahdi’s fault,

Shareef would not let her visit Mahdi in jail, and she felt so sorry for Mahdi that she considered

adopting him. Id.

Mahdi’s maternal aunts, Rose M. Gupton and Sophia A. Gee, testified regarding Vera’s

childhood, background, relationship with Shareef, and what she was like as a mother. (See Rose M.

Gupton Test., App. A001316-30; Sophia A. Gee Test., App. A001331-47). In addition, when Mahdi

was a teenager, he would periodically come by Sophia’s house. (App. A001339). She stated Mahdi

was always nice to her and was “a loving, respectable, typical teenager.” Id. Rose stated nobody

from the defense team ever contacted her and she did not know Mahdi had been arrested for murder

until he was convicted. (App. A001327-28). Rose indicated she would have testified at Mahdi’s

sentencing if asked because he deserved mercy and never had a chance. (App. A001328). Sophia,

and her sister, Corliss, were interviewed by the defense team. (App. A001341-42). However, the

defense team did not ask Sophia how to get in touch with other family members or to testify on

Mahdi’s behalf. (App. A001342-43). Sophia said she would have testified if asked because Mahdi’s

parents failed him from the beginning. (App. A001343).

In addition, PCR counsel presented evidence from seven community witnesses, including

three of Mahdi’s teachers. In third grade, after he was released from the Walter Carter Center,

Mahdi’s school placed him in Myra R. Harris’s class. (App. A001348-49). Ms. Harris testified her

class contained the troubled kids, or the kids who had not been successful in other classrooms. (App.

A001349-50). She said, initially, Mahdi was withdrawn and not friendly, but she was able to draw

him out by listening to him and giving him a voice. (App. A001351-52). He had some discipline

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problems in other classrooms, but not in hers. (App. A001351). He had a lot of trouble with

homework and struggled with change and transitions. (App. A001354-55). By the end of the school

year, Mahdi would give Ms. Harris hugs, was smiling, had some friends, and was just like the rest

of the kids. (App. A001353, 1356). He had performed well academically and even received two

awards: outstanding achievement in art and a certificate for academic achievement. (App. A00135859). Ms. Harris did not know Mahdi had been sentenced to death until she was contacted by PCR

counsel. (App. A001359). She stated she would have testified at his sentencing if asked. (App.

A001360).

For most of fourth grade, Mahdi returned to Totaro Elementary School in Lawrenceville,

where Dora G. Wynn was the principal. Ms. Wynn submitted an affidavit and stated Mahdi had

emotional difficulties, was frequently brought to her office, was withdrawn, had trust issues, refused

to do his work or eat, and would, on occasion, simply walk away from school. (App. A004146).

During his fourth grade year, Mahdi was recommended for placement in special education. Id.

Carol E. Wilson was chair of the child study team that evaluated Mahdi for special education

placement and also Mahdi’s fifth grade teacher. (App. A001367-68). Ms. Wilson testified that, in

order to assess Mahdi’s eligibility for special education, a team conducted a full child study,

including a psychological evaluation, educational diagnostics, recommendation from a guidance

counselor, and classroom observations. (App. A001368). After the assessments were complete, the

team held an eligibility meeting to discuss their findings. (App. A001370-71). Ms. Wilson recalled

Shareef attended that meeting, but cursed at everyone and stormed out when Mr. Vecker began

reading his psychological findings. (App. A001371). Mr. Vecker was Caucasian and Shareef said

he did not want any white man writing negative reports about his son. Id.

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Ms. Wilson reviewed each section of the report from the assessment meeting. On the Burks

Rating Scale, a behavior assessment, Mahdi scored “very significant [with] excessive self-blame,

poor impulse control, and excessive resistance.” (App. A001373). He also exhibited periods of

extreme sadness. (App. A001373). Ms. Wilson concluded that he appeared to be unable to cope

with his self-esteem problems and that made Mahdi unable to function and effectively learn in

school. (App. A001373-74). On the medical portion, Mahdi was noted to be overweight and

anemic. (App. A001374-75). Psychologically, Mahdi had a full scale IQ of 118, but testing showed

psychological blocking and characteristics of children who present academic problems, particularly

in language arts. (App. A001375). Mr. Vecker found Mahdi’s projectives revealed depressive and

victimization themes, feelings of helplessness, withdrawal, denial, and lack of self-esteem. (App.

A001375-76). Ultimately, the team found Mahdi eligible for the emotionally disabled program and

recommended he continue counseling and receive assistance in reading. (App. A001379).

Shareef eventually signed Mahdi’s individual education program and Mahdi entered Ms.

Wilson’s special education class in fifth grade. (App. A001381). Ms. Wilson recalled Mahdi was

never disrespectful, but was depressed and very sad. (App. A001382). He liked to draw and would

draw black and white pictures of people hanging. (App. A001383). Ms. Wilson described Mahdi

as flat and lacking in joy, interest, or motivation. (App. A001384). He was quiet and had little

interaction with other students, but he was not a behavior problem. Id.

While Mahdi was in the fourth and fifth grades, Shareef was working as a substitute teacher

in the Brunswick County school system. (See App. A001383; Wynn Aff., App. A004146). While

substituting in a fifth grade class, Shareef told the girls to get fitted for birth control, use condoms,

and to not have illegitimate children or get on welfare. (App. A001386). The school system fired

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Shareef and he withdrew Mahdi, supposedly to homeschool him. Id. After that, Mahdi “fell through

the cracks.” Id.

When asked if she was surprised Mahdi had been charged with murder, Ms. Wilson

responded, “with everything the way that it was going and with his father, I couldn’t expect anything

else.” (App. A001387). She testified that she was never contacted by trial counsel, but would have

testified and asked the judge for mercy if given the chance. (App. A001388).

The remainder of the community witness testimony focused on Shareef. George R. Smith,

who managed the blacks-only swimming pool in Lawrenceville for a time, remembered Shareef

bringing Saleem and Mahdi to the pool almost every day when the boys were young. (App.

A001408). Shareef was clean-cut at the time and there was nothing particularly remarkable about

him and the boys. (App. A001408-09). Then, in the 1980s, Mr. Smith won a voting rights case

against Brunswick County and became known as a civil rights activist. (App. A001409). After that,

Shareef admired Mr. Smith and would periodically contact him. Id. Mr. Smith testified Shareef

hated white people “with a passion” and recalled him speaking approvingly of Hitler killing “those

Jews.” (App. A001410). Mr. Smith did not think Shareef had a job and believed Mahdi’s

grandmother was supporting the boys. (App. A001411-12).

Mr. Smith also described an incident where Shareef jumped into the whites-only swimming

pool and refused to get out. (App. A001412-15). The sheriff’s office called Mr. Smith to assist and

he drove to the pool. (App. A001412). When he arrived, Shareef was swimming around, using vile

language, and talking about why O.J. Simpson had killed Nicole Brown Simpson. (App. A00141213). Shareef eventually agreed to come out of the pool, but only if Mr. Smith walked between him

and the officers the 100 yards to the sheriff’s office. (App. A001414). Mr. Smith and the officers

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agreed, and everyone walked to the sheriff’s office, which is also where the jail was located. (App.

A001414-15). Mr. Smith went into the cell with Shareef. (App. A0014150). According to Mr.

Smith, once Shareef was locked in the cell, “he just went wild,” throwing chairs against the wall and

breaking tables. Id. Mr. Smith said it was “just as violent as anything [he] ha[d] ever seen in [his]

life,” and he left. Id.

Mr. Smith also accompanied Shareef to Mahdi’s hearing after the stand-off with police.

(App. A001416). He remembered the judge commenting that Mahdi was a smart kid and his

problem was his father. (App. A001417). The defense team did not contact Mr. Smith. (App.

A001415). He stated that if asked, he would have testified and probably would have asked the judge

for mercy because of the “rampant rumors about what was going on in that household.” (A00141516).

Sharon C. Pond, a psychologist at Brunswick Behavioral Health Center, testified regarding

any records she could find related to Mahdi and Shareef.19 (App. A001419-23). Mahdi’s intake was

on February 24, 1994, and his case was closed on September 14, 1994. (App. A001420). Shareef

was seen as a mental health outpatient on March 4, 1994, discharged on May 16, 1994, seen for

emergency services on July 9, 1994, and his case was closed on September 1, 1994. (App.

A001421). Ms. Pond did not have a clear personal recollection of Shareef, but would have directly

supervised whomever worked with him. (App. A001422). She testified that, after the pool incident,

the sheriff’s office called one of her emergency workers to assess Shareef. (App. A001422-23). The

emergency worker found Shareef had a mental illness and was imminently dangerous to himself or

The detailed records had been purged due to age, so she only had “face sheets” with each

person’s personal data and dates and circumstances of contact. (See App. A001419-20).

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others. (See App. A001423). That assessment resulted in Shareef’s involuntary commitment to

Central State Hospital Forensic Unit. Id.

Ms. Pond stated Nancy Burwell, Mahdi’s grandmother, was on the community services board

of the Brunswick Behavioral Health Center at the time of Shareef’s commitment. (App. A001423).

Nancy spoke with Ms. Pond regarding Shareef’s problems and blamed herself for involving him in

the movement to integrate the public schools. (App. A001423-24). Nancy felt, although it was the

right thing to do civically and morally, it was the absolute wrong thing to do for Shareef and the

experience left him very damaged and hurt. Id. Mahdi’s defense team did not contact Ms. Pond.

(App. A001424).

Douglas R. Pond, Ms. Pond’s husband, current mayor of Lawrenceville, and former chief of

police, also submitted an affidavit. (App. A004148). Mr. Pond grew up with Shareef and

remembered him as a fairly normal child. Id. However, Mr. Pond stated that after his conversion

to Islam, Shareef became eccentric and radicalized. Id. Shareef did not like white people and there

was a racial overtone to his statements and actions. Id. Mr. Pond was the chief of police at the time

of the pool incident and remembered Shareef saying things like “come on, white boy,” when officers

would ask him to get out of the pool. Id. Mr. Pond also stated he knew Nancy Burwell from the

community and that she had always been “eccentric and somewhat goofy” and routinely got confused

about when her water bill was due. Id. Mahdi’s defense team did not contact Mr. Pond, but he

stated he would have been willing to testify or provide the above information. Id.

Finally, James R. Woodley, former Sheriff of Brunswick County, who testified for the State

during Mahdi’s sentencing, provided an affidavit on Mahdi’s behalf in his PCR proceeding. (App.

A004149-51). Mr. Woodley grew up with the Burwells and, while he did not know Shareef as well

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as the older children, he remembered him as easy going and relatively normal until he began

attending an integrated school. (App. A004149). Mr. Woodley described Nancy Burwell as

someone with “all the lights [] on, but nobody’s home.” Id. He indicated Shareef had always

seemed dominant and domineering and had no respect for women. Id. Mr. Woodley testified that

he remembered one time Nancy told him that Shareef had beaten her with a belt buckle while Saleem

and Mahdi watched. Id. Nancy wanted Shareef to get help, so Mr. Woodley arrested him and

referred him for mental health treatment. Id. After the mental health evaluation, Shareef returned

to jail, where no charges were filed because Nancy would not testify. (App. A004149-50).

Mr. Woodley also filled in details about what happened when Shareef attempted to force

Vera to return to Lawrenceville. (App. A004150). Shareef took Saleem and Mahdi to visit their

mother, told Vera they would all go get ice cream, and, once she was in the truck, told her he was

taking her back to Lawrenceville to kill her. Id. When they returned to Lawrenceville, the boys went

into the house with Nancy and another female relative and Shareef and Vera remained outside. Id.

Nancy and the boys heard screaming and ran outside to see Shareef trying to kill Vera. Id. Vera

managed to escape, but later declined to press charges, saying she wanted to put the incident,

Shareef, and the boys behind her. Id.

Mr. Woodley recalled incidents where Shareef threw a brick at his sister, Kathy, and

damaged his sister Loretta’s car. Id. He stated he personally complained to the Brunswick County

Department of Social Services and the school board when he realized Shareef was not actually

homeschooling the boys, but nothing ever came of it. Id. And finally, Mr. Woodley described

Shareef’s standoff with police in connection with the public pool incident and attached a related

article from the local paper. (App. A004150-51). He indicated Mahdi’s defense team did not

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interview him and he was surprised Nancy was the only family member present at the trial. (App.

A004151).

PCR counsel also called four experts: Dr. Nicholas C. Cooper-Lewter, Dr. Craig Haney, Dr.

DeRosset Myers, Jr., and Dr. Donna M. Schwartz-Watts. Dr. Cooper-Lewter, an expert in clinical

social work and psycho-social assessment, performed a new psycho-social assessment. (App.

A001426-77, 1537-92).

Dr. Cooper-Lewter’s testimony followed the same format as Ms.

Hammock’s, but illuminated in greater detail Mahdi’s childhood, traumas, education, mental health,

and general history, which had been provided by the other PCR witnesses.

Dr. Haney, an expert in social psychology, testified regarding the likely effects on Mahdi of

his extensive time in prisons. (App. A001592-1655). Based on his review of Mahdi’s records, Dr.

Haney testified that Mahdi “was institutionalized for approximately eight and a half out of every 10

days of his life after the age of 14,” amounting to about eighty-six percent of his life. (App.

A001608). Dr. Haney described similar risk factors in DJJ to those Mahdi experienced in his early

life, including: abandonment, neglect, witnessing violence, instability, and unpredictability. (App.

A001609). He indicated that, in order to avoid victimization in an institution, people who have been

hurt by these experiences will project or develop a tough, angry exterior. (App. A001610). Dr.

Haney attributed Mahdi’s “maladaptive” and “impulsive” behavior in DJJ to this form of selfpreservation (App. A001611-12) and opined Mahdi left DJJ “with the same problems arguably

worsened by the fact that he had been in this institutional setting and had developed in part as a way

of trying to adjust in this setting an even more defiant and oppositional approach to conflict and to

interactions” (App. A001618).

Regarding Mahdi’s time in adult prison in Virginia, Dr. Haney testified that the prison system

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failed to address Mahdi’s underlying psychological problems. (App. A001620). Dr. Haney stated

untreated underlying psychological problems can often lead inmates to rack up disciplinary

infractions for minor irrational and impulsive behaviors, and those infractions result in time in

isolation or a transfer to a super-max facility. (App. A001621). Dr. Haney described studies

suggesting prisoners subjected to extended solitary confinement can experience anxiety and mental

deterioration and “lose their ability to initiate behavior or make responsible judgments about their

own behavior.” (App. A001623-24). In addition, Dr. Haney stated “[i]f a prisoner suffers from

depression that depression almost certainly will deepen inside a super-max prison.” (App.

A001624). And the frustrating nature of the environment and lack of “pro-social avenues for the

release of that frustration” can lead prisoners in super-max facilities to lash our impulsively and

irrationally. (App. A001624-25). Dr. Haney opined these factors significantly contributed to

Mahdi’s institutional behavior and that, after his time at the super-max facility in Virginia, without

a transitional process or psychiatric treatment, Mahdi would have had a very difficult time reentering

free society. (App. A001630-33).

Dr. Myers, an expert in child and adolescent psychology, assessed developmental issues in

the first sixteen to seventeen years of Mahdi’s life. (App. A001656-97). Dr. Myers reviewed

Mahdi’s records and portions of the trial transcript and found Mahdi suffered from major depression

and severe attachment disorder in his childhood and adolescence. (App. A001659-60). In discussing

Mahdi’s records from the Walter Carter Center, Dr. Myers noted it was very unusual for a nine year

old to be admitted to a psychiatric ward and rare for someone that young to receive a diagnosis of

major depression. (App. A001665-66, 1668). Dr. Myers testified Mahdi’s Walter Carter Center

records, special education eligibility assessment, and DJJ psychological evaluation consistently

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suggested Mahdi’s oppositional behavior stemmed from his major depression. (See App. A001682,

A001684, A001690-91). He noted that a number of people along the way recognized that Mahdi

needed help and made cogent recommendations, but Mahdi never received the ongoing support he

needed. (App. A001691-92).

Dr. Schwartz-Watts, a forensic psychiatrist, evaluated Mahdi and diagnosed him with: (1)

major depression, recurrent, with psychotic features, in remission; (2) anxiety disorder; (3) reactive

attachment disorder of childhood, inhibited type; (4) paranoid personality disorder; and (5) antisocial

personality disorder. (App. A001700). Dr. Schwartz-Watts opined that Mahdi’s depression could

have manifested as aggression and irritability (App. A001701-02) and linked her diagnoses of

depression and antisocial personality disorder (App. A001705-06). In her report, Dr. SchwartzWatts concluded Mahdi’s age and mentality at the time of the crime were mitigating factors, based

on the fact that he was twenty-one when he committed the crime and documentation suggesting his

emotional immaturity. (App. A006972). However, at the evidentiary hearing, she testified that

despite the presence of mental illnesses, Mahdi’s capacity was not diminished at the time of the

crime, he was able to know right from wrong, and she did not believe his mentality supported a

statutory mitigating circumstance. (App. A001713-14). However, she stated his anxiety disorder

could have contributed to his decision to shoot Captain Myers. (App. A001714). Dr. SchwartzWatts also testified that Mahdi expressed remorse to her, indicating: “he said it was unnecessary to

kill the man and he felt very badly about it and the other thing that he said [was that] killing someone

is selfish and it shows a lack of discipline.” (App. A001715).

The State then presented testimony from Mahdi’s trial attorneys and defense team, which

included: James Gordon, the private investigator (App. A001742-47); Paige M. Haas, the mitigation

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investigator (App. A001800-26); Dr. Thomas V. Martin, the forensic psychiatrist (App. A00174784); and Dr. Geoffrey R. McKee, the forensic psychologist (App. A001784-1800). The attorneys

and investigators testified regarding the investigation, sharing information in periodic team meetings,

consulting with the attorneys assigned to Mahdi’s North Carolina murder case, and personal

interactions with uncooperative family members and potential witnesses. Dr. Martin discussed his

findings that Mahdi had a violent outlook, expressed no remorse, and was manipulative. (App.

A001755-56).20 Those findings led Dr. Martin to diagnose Mahdi with antisocial personality

disorder. (App. A001756) Dr. McKee agreed and diagnosed Mahdi with antisocial personality

disorder with a history of alcohol abuse. (App. A001790). Both doctors indicated none of the

information they heard or reviewed during the evidentiary hearing would have changed their

opinions and, in fact, the DJJ records, which they had not previously reviewed, were consistent with

their diagnoses. (App. A001783-84, A001799-1800).

Analysis

Non-Family Lay Witnesses

In this preserved portion of Ground Two, Mahdi asserts his trial counsel were ineffective in

failing to contact and present evidence from community lay witnesses, specifically: Mahdi’s

teachers, Myra Harris and Carol Wilson; elementary school principal, Dora Wynn; and community

members who knew the Burwell family—George Smith, Sharon Pond, James Woodley, and Douglas

Pond. To succeed on this claim, Mahdi must show that the PCR court’s decision was “contrary to,

or involved an unreasonable application of, clearly established Federal law,” as determined by the

Mahdi told Dr. Martin that his actions were “justified” and that “people only understand

force.” (App. A001761).

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United States Supreme Court, 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence” before it, 28 U.S.C. § 2254(d)(2).

In reaching its conclusions, the PCR court applied Strickland, Wiggins v. Smith, 539 U.S. 510

(2003), Rompilla v. Beard, 545 U.S. 374 (2005), their progeny, and their South Carolina state law

equivalents. (See App. A000086-90, A000166-67). The PCR court found Mahdi had “not shown

that counsel was deficient in failing to investigate, develop, or present mitigation evidence from his

family members or community witnesses” and 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.” (App. A000118). The court concluded “Mahdi

ha[d] failed to demonstrate deficient performance here because much, if not all, of the evidence

Mahdi offered at PCR regarding his family and social history, whether through family or community

witnesses, was cumulative to the evidence presented in Mahdi’s capital sentencing proceeding.”

(App. A000114, A000165 (specifically noting Judge Newman knew all the pertinent information

about Mahdi’s father)). And, the PCR Order included a specific finding that trial counsel were not

ineffective for not calling elementary school officials. (App. A000154).

After a thorough review of the aggravating and mitigating evidence (App. A000166-81), the

PCR court also found Mahdi had failed to prove prejudice (App. A000181). Given the “horrible

facts of the murder” and the “overwhelming” evidence of Mahdi’s bad character, characteristics,

prison misconduct, and propensities for violence, the PCR court found there was “no reasonable

probability Judge Newman would have returned with a different sentence” if presented with the

additional mitigating evidence at PCR. (App. A000166, A000167).

Mahdi alleges two specific errors regarding the PCR court’s determination: (1) the PCR court

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erred by rejecting the application of the American Bar Association Guidelines for the Appointment

and Performance of Counsel in Death Penalty Cases (2003) (?ABA Guidelines”) and (2) the PCR

court erred in finding the mitigation evidence offered in PCR was cumulative to the evidence offered

at sentencing.21 (ECF No. 113 at 39 n.13, 43-45). The ABA Guidelines state that: “capital counsel

must investigate a client’s social history; locate and interview all potential witnesses; locate available

and relevant records; and investigate and rebut the Government’s evidence in aggravation,” and that

“[b]ecause the sentencer in a capital case must consider in mitigation, anything in the life of a

defendant which might militate against the appropriateness of the death penalty for that defendant,

penalty phase preparation requires extensive and generally unparalleled investigation into personal

and family history.” (ECF No. 113 at 39) (citing ABA Guidelines 10.7 and 10.11 and 10.6

Commentary).

In the PCR court’s original order, in addition to applicable case law, the court considered the

ABA Guidelines in assessing reasonable performance. (See App. A000039-45). Under this analysis,

Mahdi also alleges the following errors in the PCR Order: (1) the PCR court erred in

finding trial counsel made a reasonable strategic decision not to present certain mitigating evidence

in order to avoid the admission of additional evidence in aggravation and (2) the PCR court made

erroneous credibility determinations. (ECF No. 113 at 39, 42). However, the PCR court’s finding

that trial counsel made an objectively reasonable strategic decision pertained to counsel’s decision

not to call Mahdi’s family members as mitigation witnesses, specifically Carson Burwell, Lawanda

Burwell, and Sophia Gee. (See App. A000115-17). Accordingly, the propriety of that finding is not

relevant to this portion of Ground Two. In addition, it does not appear the PCR court made specific

credibility determinations regarding the non-family lay witnesses. (See App. A000110-14 (finding:

witnesses’ present statements about previous willingness to testify not credible; Mahdi’s aunts and

uncles were not willing to come to South Carolina and testify on Mahdi’s behalf in 2006; the record

showed Mahdi had engaged in conduct within his own family which would have caused, and did

cause, family members to be reluctant to assist him in his mitigation case; and counsel and the

defense team attempted to develop live mitigation evidence from Mahdi’s family, but were met with

reluctance, refusal, or inability to testify in a helpful manner)). Thus, the PCR court’s credibility

findings do not directly impact the court’s consideration of this portion of Ground Two.

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the PCR court found trial counsel deficient for failing to interview potential witnesses outside of

Mahdi’s family. (App. A000047). However, given the aggravating circumstances in this case, the

court found Mahdi had failed to show prejudice. Id.

In the amended PCR Order, the PCR court carefully and expressly reconsidered the

applicability of the ABA Guidelines. (See App. A000087-90). Notably, the PCR court did not find

the guidelines inapplicable or irrelevant, but cited case law indicating the ABA Guidelines are just

that—guidelines—and reiterating the ultimate deficiency determination turns on the much broader

concept of reasonableness. (See App. A000088-89) (citing Bobby v. Van Hook, 558 U.S. 4 (2009);

Cullen v. Pinholster, 131 S.Ct. 1388 (2011)). While the United States Supreme Court has looked

to the ABA Guidelines in analyzing attorney performance under similar circumstances,22 there is no

requirement that courts are bound to follow the ABA Guidelines or must grant the guidelines any

weight. See Van Hook, 558 U.S. at 7-8. As Justice Alito noted in his concurring opinion in Van

Hook, the ABA is a private group with limited membership, and “[i]t is the responsibility of the

courts to determine the nature of the work that a defense attorney must do in a capital case in order

to meet the obligations imposed by the Constitution,” and there is therefore “no reason why the ABA

Guidelines should be given a privileged position in making that determination.” Van Hook, 558 U.S.

at 13 (Alito, J. concurring). Thus, the PCR court’s decision not to base its analysis on the advisory

ABA guidelines was not contrary to clearly established federal law.

In support of his argument that the PCR court erred in finding the PCR evidence cumulative

of the sentencing evidence, Mahdi asserts: (1) even if the information was the same, receiving the

information through family and lay-witness first-hand accounts is more impactful than through

See, e.g, Strickland, 466 U.S. at 688; Wiggins, 539 U.S. at 510; Rompilla, 545 U.S. at 387.

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expert testimony; (2) the information presented at the PCR proceedings was not cumulative; and (3)

the inclusion of testimony from school teachers and community members during the PCR

proceedings succeeded in humanizing Mahdi, something Judge Newman specifically found the

presentation at sentencing had failed to do. (ECF No. 113 at 43-45).

First, this preserved portion of Ground Two only concerns counsel’s alleged failure to

develop and present evidence from non-family lay witnesses and does not address the decision to

present mitigating evidence through an expert, rather than a series of character witnesses.

Accordingly, the court declines to dive into a discussion of best practices in capital sentencing, at

least at this point.

Second, the court has thoroughly reviewed the testimony and exhibits offered at sentencing

and in the PCR proceedings and finds the PCR court’s determination that the PCR evidence was

cumulative is not unreasonable. While the PCR evidence certainly expanded on and added depth

to Ms. Hammock’s testimony and the other evidence offered at sentencing, it would not have

significantly “altered the sentencing profile presented to the sentencing judge.” Strickland, 466 U.S.

at 700. As discussed above, the school and community PCR witnesses testified about Mahdi’s

behavior and performance in school; special education evaluation; father’s background, racial views,

mental health, and incidents of violence against other family members and racial protests; and

grandmother Nancy Burwell’s occasionally off-kilter behavior.

At sentencing, Ms. Hammock testified regarding Mahdi’s education, noting that Mahdi’s

education was disrupted several times, he had trouble reading, he suffered from poor self-esteem,

and he struggled to relate to others. (App. A003630-32). Ms. Hammock’s School Experience

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Summary indicated Mahdi attended special reading classes and qualified for Chapter 123 while in

school in Baltimore. (App. A007515). In addition, Ms. Hammock’s School Experience Summary

noted that, in fifth grade, Mahdi’s father “removed [him] in order to home school.” Id.24 Ms.

Hammock also noted, in third grade, Mahdi was outstanding in science and worked well in small

groups. Id. Overall, though concise and lacking the detail presented at the PCR hearing, Judge

Newman had before him the same basic information presented by Mahdi’s teachers.25

In addition, while Ms. Hammock’s description of Shareef’s background was brief, she did

note the trauma he experienced while attending a desegregated school, his depression, a number of

incidents with local law enforcement, and his physical abuse of Vera. (App. A003625-28). The time

line admitted into evidence reinforced Ms. Hammock’s testimony and provided additional details.

(See App. A007543-44). The time line revealed that Shareef was described as a disturbed young

child, that his mother was not emotionally available to him, and that he was involved in incidents

This refers to Chapter 1 of the Educational Consolidation Improvement Act, which

provided federal funding for supplementary programs in basic skills for low-income students who

qualified based on achievement.

The following sentence is incomplete, but states, “There was no information that this

schooling had.” (App. A007515). Through the benefit of hindsight, the court assumes Ms.

Hammock meant to state there was no information that Shareef ever actually homeschooled Mahdi.

One notable exception is Mahdi’s special education evaluation. The evaluation, detailed

by Carol Wilson during the PCR evidentiary hearing, was not discussed at trial. Based on evidence

at PCR, it is questionable whether trial counsel had seen the evaluation. However, trial counsel’s

mitigation investigator testified her common practice was to request records from every school a

defendant attended and pass those records on to counsel. (App. A001803). She also testified that,

in this case, she summarized Mahdi’s school records and presented relevant information to counsel

and other experts during their periodic team meetings. (App. A001813, A001825-26). Notably,

counsel’s possession of the special education evaluation is not specifically contested in the briefs,

is not covered by this portion of Ground Two, and is not material to the court’s evaluation of

Mahdi’s claims.

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with law enforcement, which were “said to be racially motivated.” (App. A007543). The time line

also described Shareef kidnapping Vera and physically abusing her in front of Mahdi and Saleem

and stated Shareef attacked his mother, Nancy. (App. A007543-44). In addition, Ms. Coulson’s DJJ

evaluation, which the State admitted into evidence during the sentencing phase, described Shareef

as a poor adult role model and attributed much of Mahdi’s apparent behavioral problems to Shareef’s

dysfunctional parenting. (ROA 1870). And the portion of Mahdi’s DJJ records the State admitted

into evidence references Shareef’s statement that “Virginia is full of white supremacists.” (ROA

2146). Thus, while trial counsel’s mitigation presentation was brief, the court cannot find

unreasonable the PCR court’s determination that the evidence at PCR on these topics was

cumulative.

In addition, the record suggests trial counsel considered calling Nancy Burwell to testify

during sentencing. (See App. A003639, A001859-60). Counsel could, quite reasonably, have

decided not to present information suggesting this character witness had some quirks. The decisions

concerning the calling of witnesses are matters of strategy left to the attorney, which ordinarily

cannot constitute ineffective assistance. Jones v. Barnes, 463 U.S. 745, 808 (1983).

Further, to Mahdi’s broad challenge to the PCR court’s finding that trial counsel conducted

a reasonable investigation, despite not interviewing the teachers and community witnesses presented

at PCR, the court does not find that decision contrary to, or an unreasonable application of, clearly

established federal law or based on an unreasonable determination of the facts.

The record shows trial counsel assembled a team of qualified experts to assist in Mahdi’s

defense and specifically to investigate potential mitigating evidence. Members of the team traveled

to Lawrenceville, Virginia;

Richmond, Virginia; Baltimore, Maryland; and Philadelphia,

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Pennsylvania. (App. A001805-06). They interviewed Mahdi and several of his family members,

including: Nancy; Mahdi’s uncle, Nathaniel; Vera; Shareef; Mahdi’s maternal aunts, Corliss Artis

and Sophia Gee; Carson and Lawanda Burwell; and Mahdi’s paternal aunt, Kathy. (App. A00180608). And, the team consulted with Mahdi’s North Carolina attorneys and their mitigation

investigator, who had already spent time gathering information from Mahdi’s family. (App.

A001808). In addition, Paige Haas, the team’s mitigation investigator, testified that she attempted

to speak with Saleem, but was not successful. (App. A001809).

The attorneys and experts had periodic team meetings where everyone would share

information. (See App. A001834-35). And, after meeting with Mahdi’s North Carolina defense

team, Mahdi’s attorney, Carl Grant, moved to continue Mahdi’s South Carolina trial for almost one

year. (App. A001836-37). Mr. Grant stated after talking with the North Carolina team, he

“discovered that there was going to be a whole lot more information that [he] would need in order

to adequately present Mahdi’s case,” primarily regarding Mahdi’s background and family. (App.

A001836). Judge Newman granted the motion and continued the trial from January to November

2006. (App. A007968-69).

Further, Ms. Haas testified she visited Mahdi’s elementary school in Lawrenceville and spoke

with teachers there. (App. A001824-25). She indicated the teachers she spoke with remembered

Mahdi and were familiar with him, but they had not spent “lots and lots of time” with him. (App.

A001825). Ms. Haas also spoke by phone with individuals from Madhi’s school in Baltimore. Id.

And, she recalled requesting records from several schools and testified it was her common practice

to request records from any school she knew the defendant attended. (App. A001803-04). Ms. Haas

stated she would have made notes from her interactions, including names and contact information,

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passed on those notes to the attorneys, and included any pertinent information in a school record

summary she prepared for Ms. Hammock. (App. A001813, A001825-26).26

When asked why he did not talk with community members or teachers, Mahdi’s attorney, Mr.

Walters, stated he normally relied on a defendant’s family to identify other potential witnesses.

(App. A001877). However, in this case, Mahdi’s family was not helpful. Id. In addition, by Mahdi’s

own admission, and confirmed by his records, Mahdi was somewhat dysfunctional within the school

system. (App. A001876). So, Mr. Walters stated he was not under the impression that witnesses

from Mahdi’s schools would testify favorably, or would not be subject to harmful cross-examination.

(App. A001876-77). Mr. Walters also emphasized his reliance on the qualified experts on his team.

(See App. A001874, A001876, A001886).

It is not unreasonable or against prevailing professional norms for counsel to rely on a

qualified mitigation investigator and other experts. See Rhodes v. Hall, 582 F.3d 1273, 1283 (11th

Cir. 2009) (“Since . . . counsel hired investigators who interviewed potential witnesses and shared

all of their information with counsel, we cannot say that counsel performed deficiently by delegating

the mitigation investigation to them.”). In addition, as the Supreme Court has recognized, “there

comes a point at which [more evidence] can reasonably be expected to be only cumulative, and the

search for it distractive from more important duties.” Van Hook, 558 U.S. at 11; see also Rompilla,

545 U.S. at 389 (“Questioning a few more family members and searching for old records can

promise less than looking for a needle in a haystack, when a lawyer truly has reason to doubt there

is any needle there.”). Thus, trial counsel are not required to “investigate every conceivable line of

Ms. Haas’s notes reflected an interview with a Ms. Pearson, whom she thought must have

been one of Mahdi’s teachers. (App. A001806).

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mitigating evidence no matter how unlikely the effort would be to assist the defendant at

sentencing,” Wiggins, 539 U.S. at 533, but, rather, must uphold their “duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations unnecessary,”

Strickland, 466 U.S. at 691.

Based on the court’s review of the evidence and relevant precedent, and as evidenced by the

PCR court’s reversal of its position on this issue after reconsideration, the court finds “fairminded

jurists could disagree” that the record here supports the PCR court’s conclusion. See Richter, 562

U.S. at 101. However, the PCR court’s decision does not “lie well outside the boundaries of

permissible difference of opinion.” See Tice v. Johnson, 647 F.3d 87, 108 (4th Cir. 2011) (holding

“[m]indful of the deference owed under AEDPA, we will not discern an unreasonable application

of federal law unless ‘the state court’s decision lies well outside the boundaries of permissible

differences of opinion.’”) (quoting Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006)).

Accordingly, granting the PCR court the appropriate latitude and deference, the court finds Mahdi

has not shown the PCR court’s determination was contrary to, or an unreasonable application of,

clearly established federal law or based on an unreasonable determination of the facts. See id. at 105

(“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two

apply in tandem, review is ‘doubly’ so.”) (citations omitted).

Other Allegations of Deficiency

As discussed above, Mahdi did not raise the remaining portions of Ground Two in his PCR

appeal, but did raise them in his second PCR application. Thus, they are technically exhausted, but

procedurally defaulted. Mahdi advances six theories to overcome the procedural default: (1) the

issue presented in Mahdi’s state certiorari petition encompasses all of Ground Two; (2) new

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information discovered during federal habeas counsel’s investigation has fundamentally altered

Ground Two; (3) cause and prejudice under Martinez; (4) the court should excuse the default

because PCR appellate counsel were required to brief all arguable issues; (5) ineffective assistance

of PCR appellate counsel; and (6) failure to hear his claims would constitute a fundamental

miscarriage of justice. (See ECF No. 113 at 45–52).

The court has already found that Mahdi’s state petition for a writ of certiorari presented a

narrower claim than presented here and the court has addressed that claim. Accordingly, Mahdi’s

first argument fails. Mahdi’s fourth argument, that PCR appellate counsel were required to brief all

arguable issues, relies entirely on state law (see ECF No. 113 at 50-51) and has now been denied by

the state courts (see ECF No. 66-1). Accordingly, it is not a cognizable federal habeas claim. See

Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[I]t is only noncompliance with federal law that renders

a State’s criminal judgment susceptible to collateral attack in the federal courts.”); Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine

state-court determinations on state-la

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