Wood v. Byars

Filing 190

ORDER AND REPORT AND RECOMMENDATION granting Wood's 151 motion to enlarge the record with respect to Agent Donohue's testimony, denying Wood's 151 motion for an evidentiary hearing and to enlarge the record on Grounds Four, Five, Seven, and Ten, and denying Wood's 151 motion for discovery on Ground Ten. In addition, the court recommends granting Respondents' 136 motion for summary judgment and dismissing Wood's 85 petition. (Objections to R&R due by 10/15/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45.) Signed by Magistrate Judge Paige J. Gossett on 10/1/2018. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
John R. Wood,

)
)
Petitioner,
)
)
v.
)
)
Bryan P. Stirling, Commissioner, South
)
Carolina Department of Corrections, Willie D. )
Davis, Warden, Kirkland Reception and
)
Evaluation Center,
)
)
Respondents.
)
_____________________________________ )

C/A No. 0:12-cv-3532-DCN-PJG

ORDER AND
REPORT AND RECOMMENDATION
(Death Penalty Case)

Petitioner John R. Wood, a death-sentenced state prisoner, filed this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28
U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on
Respondents’ Motion for Summary Judgment and Return and Memorandum in Support thereof
(collectively, the “Return”). (ECF Nos. 136 & 137.) Wood has filed a Traverse and Memorandum
of Law in Opposition to Summary Judgment (“Traverse”). (ECF No. 150.) And, Respondents have
filed a Reply to Petitioner’s Traverse and Memorandum of Law in Opposition to Summary Judgment
(“Reply”). (ECF No. 154.) Accordingly, Respondents’ motion has been fully briefed and is ready
for resolution. In addition, Wood has moved for an evidentiary hearing and to expand the record
(ECF No. 151), and the parties have briefed that motion (ECF Nos. 153, 160). Having carefully
considered the parties’ submissions and the record in this case, the court concludes that Respondents’
motion for summary judgment should be granted. Additionally, the court grants in part and denies
in part Wood’s motion regarding further factual development (ECF No. 151).

Page 1 of 95

BACKGROUND
The following facts are recited verbatim from the South Carolina Supreme Court’s opinion
in Wood’s direct appeal:
Trooper Eric Nicholson, while patrolling I-85 in the Greenville area, called to inform
the dispatcher that he was going to stop a moped. After Nicholson activated his
lights and siren, [Wood], who was riding the moped, did not immediately stop. Two
other troopers subsequently heard Nicholson scream on the radio and they rushed to
the scene whereupon they found Nicholson had been shot five times. The driver’s
side window of Nicholson’s car was completely shattered. Both of his pistols were
secured in their holsters. Eight shell casings were found at the scene.
There were several eyewitnesses to Nicholson’s murder. Witnesses recalled seeing
a moped being followed by a trooper with activated lights and sirens. The moped
took the off-ramp to leave I-85 and then took a right down a frontage road. As the
two vehicles got on the frontage road, the trooper sped up to get beside the moped
and then veered to the left to stop at an angle against a raised median in order to
block the moped’s progress. The moped came to a stop close to the driver’s side
window.
Immediately upon stopping, [Wood] stood up over the moped and raised his arm
towards the driver’s side window of Trooper Nicholson’s car. Some witnesses saw
a weapon in [Wood’s] hand and heard gunshots. After firing several shots in the
driver’s side window of Nicholson’s car, appellant backed the moped up, turned it
around, and fled at a high rate of speed.
After the shooting, some concerned citizens (The Wheelers) chased [Wood]. [Wood]
entered a parking lot and then jumped into the passenger’s seat of a Jeep, driven by
a woman. The Wheelers subsequently called in the tag number to police.
Once law enforcement officers began chasing the Jeep, [Wood] opened fire on the
pursuing officers. One officer was struck in the face by a bullet fragment. He
survived the injury. After subsequently hijacking a truck, [Wood] was eventually
stopped and taken into custody.
State v. Wood, 607 S.E.2d 57, 58 (S.C. 2004).1

1

While Wood challenges the South Carolina Supreme Court’s decision on one direct appeal
issue in this action, he does not challenge the court’s factual recitation.
Page 2 of 95

PROCEDURAL HISTORY
Trial and Sentencing
Wood was indicted in May 2001 in Greenville County for Trooper Nicholson’s murder and
possession of a weapon during the commission of a violent crime (Greenville County Case No. 01GS-23-3106).2 (App. at 3727, ECF No. 45-3 at 74.) At trial, Wood was represented by attorneys
John I. Mauldin, James Bannister, and Rodney Richey. On February 11, 2002, a jury found Wood
guilty of both charges. (App. at 1780, ECF No. 42-7 at 20.) Following a sentencing proceeding, the
jury recommended a sentence of death on the murder charge, finding the aggravating factor of
murdering a state law enforcement officer during the performance of his official duties. (App. at
2254–2256, ECF No. 43-3 at 25–27.) On February 16, 2002, the circuit court sentenced Wood to
death. (App. at 2259, ECF No. 43-3 at 30.)
Direct Appeal
On appeal, Wood, through counsel, Robert M. Dudek, raised four issues, including:
Whether the judge erred by ruling South Carolina’s death penalty statute was
constitutional where it mandated that appellant, seeking the mitigating evidence
attendant to pleading guilty, and accepting responsibility, must waive jury sentencing,
since this procedure denied appellant his right to present mitigating evidence to a
sentencing jury?

2

Wood and his girlfriend, Karen McCall, were also indicted in Anderson County on charges
stemming from the high-speed chase they initiated after the murder of Trooper Nicholson. See State
v. Wood, 608 S.E.2d 435 (S.C. 2004); State v. McCall, 612 S.E.2d 453 (S.C. 2005). Those charges
included criminal conspiracy, failure to stop when signaled by law enforcement, resisting arrest with
a deadly weapon, armed robbery, assault and battery with intent to kill, and assault and battery of a
high and aggravated nature. See id. Trial on those charges began in May 2002, after the conclusion
of Wood’s Greenville County trial, and resulted in convictions and sentences for both Wood and Ms.
McCall. See id.
Page 3 of 95

(ECF No. 39-11 at 7.) On December 6, 2004, after full briefing and oral argument, the South
Carolina Supreme Court affirmed Wood’s convictions and sentence. See State v. Wood, 607 S.E.2d
57 (S.C. 2004); (App. at 2575, ECF No. 43-5 at 98). Wood petitioned for rehearing, which the court
denied on January 20, 2005. (App. at 2585, ECF No. 43-5 at 108.)3
First Post-Conviction Relief Action
Wood filed a pro se application for post-conviction relief (“PCR”) on July 28, 2005. See
Wood v. State of South Carolina, 05-CP-23-04737; (ECF No. 43-5 at 112). Subsequently, the PCR
court appointed attorneys James A. Brown, Jr., and Symmes Culbertson to represent Wood in his
PCR proceeding. (ECF No. 39-2.) Mr. Culbertson was later replaced by Bill Godfrey, Esquire.
(See ECF No. 40-3.)
On February 9, 2007, through Mr. Brown and Mr. Culbertson, Wood filed a second amended
PCR application, raising the following claims:
Ground A
Applicant was denied the effective assistance of counsel as guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and Article I, Section
14 of the South Carolina Constitution and South Carolina law including S.C. Code
Sections 16-3-26(B)(1) and 17-23-60 by trial counsels’ failure to investigate,
challenge and present evidence impeaching the testimony of Karen A. McCall, a
witness for the prosecution during the verdict or penalty phase of the trial
proceedings. Strickland v. Washington, 466 U.S. 668 (1984).
Supporting Facts for Ground A
(1)

Karen McCall provided testimony identifying Mr. Wood as the perpetrator
of the murder in response to questioning by the prosecution. Further, she

3

Wood appealed the South Carolina Supreme Court’s decision through a petition for writ
of certiorari in the United States Supreme Court, but did not present this issue. (See ECF No. 40-5
at 2.)
Page 4 of 95

testified that she “was forced to drive” the vehicle in question. This
testimony portrayed Ms. McCall as the victim of Mr. Wood’s activities.
(2)

However, testimony elicited by agents of the State in another trial indicates
that Ms. McCall voluntarily participated in the events involving Mr. Wood
on December 6, 2000.

(3)

Further, SLED testing of Ms. McCall’s hands indicates that “Round lead
particles found on the palms and backs of both hands of Karen Pittman
McCall, SLED Trace Dept. Report, 3.1.01. Ila Simmons and Joseph Powell.

(4)

Trial counsel failed to examine Ms. McCall regarding her involvement in the
criminal activity or to correct this impression presented by the prosecution.
Further, trial counsel failed to present the results of the GSR testing.

(5)

But for counsel’s deficient performance, the outcome of the trial proceedings
would have been different.

Ground B
Application [sic] was denied the effective assistance of counsel as guaranteed by the
Sixth and Fourteenth Amendments to the United States Constitution and Article I,
Section 14 of the South Carolina Constitution and South Carolina law including S.C.
Code Sections 16-3-26(B)(1) and 17-23-60 by trial counsels’ failure to present
sufficient evidence and sufficiently articulate a request for an instruction for
voluntary manslaughter. Strickland v. Washington, 466 U.S. 668 (1984).
Supporting Facts for Ground B
(1)

During the verdict phase of the trial, the defense requested an instruction
regarding a lesser included offense of voluntary manslaughter. However, the
trial court denied this request and the Supreme Court of South Carolina
affirmed this decision.

(2)

However, the Trial Counsel failed to present testimony that the traffic stop
was conducted in contradiction of the guidelines promulgated by law
enforcement.

(3)

But for counsel’s deficient performance, the outcome of the trial proceedings
would have been different.

Page 5 of 95

Ground C
As an alternative ground to Ground B, Applicant was denied the effective assistance
of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, Section 14 of the South Carolina Constitution and
South Carolina law including S.C. Code Sections 16-3-26(B)(1) and 17-23-60 by
trial counsels’ failure to concede guilt during the verdict phase of the proceedings.
Florida v. Nixon, 543 U.S. 175 (2004) and Strickland v. Washington, 466 U.S. 668
(1984).
Supporting Facts for Ground C
(1)

During the verdict phase of the case, the trial counsel presented a “he didn’t
do it” defense.

(2)

However, during the penalty phase of the proceeding, trial counsel presented
a “he can act better mitigation.”

(3)

But for counsel’s deficient performance, the outcome of the trial proceedings
would have been different.

Ground D
Applicant was denied the effective assistance of counsel as guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and Article I, Section
14 of the South Carolina Constitution and South Carolina law including S.C. Code
Sections 16-3-26(B)(1) and 17-23-60 by trial counsels’ failure to accept the trial
court’s offer to instruct the jury that a defendant is required to plead not guilty in
order to obtain jury sentencing. Strickland v. Washington, 466 U.S. 668 (1984).
Supporting Facts for Ground D
(1)

Trial Counsel offered to instruct the jury that to tell the jury that “the
individual wished to plead guilty, but in order to submit the sentencing issue
to them we would go through the process of trial first.”

(2)

This instruction was not provided to the jury

(3)

Trial counsel failed to object to the failure to charge this instruction.

(4)

But for counsel’s deficient performance, the outcome of the trial proceedings
would have been different.

Page 6 of 95

Ground E
Applicant was denied the effective assistance of counsel as guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and Article I, Section
14 of the South Carolina Constitution and South Carolina law including S.C. Code
Sections 16-3-26(B)(1) and 17-23-60 by trial counsels’ failure to object to the
testimony of from [sic] medical providers of the South Carolina Department of
Mental Health. Estelle v. Smith, 451 U.S. 454 (1981); Buchanan v. Kentucky, 483
U.S. 402 (1987); Powell v. Texas, 492 U.S. 680 (1989); Hudgins v. Moore, 524
S.E.2d 105 (S.C. 1999); Thomas-Bey v. Nuth, 67 F.3d 296 (Unpublished, 4th Cir.
1995); and Strickland v. Washington, 466 U.S. 668 (1984).
Supporting Facts for Ground E
(1)

An evaluation of Mr. Wood was conducted related to the capital matter over
the objection of his capital trial counsel.

(2)

This evaluation included a request for information with a view to the use of
this information at sentencing.

(3)

Capital trial counsel was unaware that this information could be used at
sentencing or during any step during the trial process as no issue was raised
concerning criminal responsibility, competency to stand trial, or ability to
conform conduct to the requirements of the law.

(4)

Trial counsel failed to object to the presentation of this evidence outside of
the limited purpose for which this evaluation was ordered.

(5)

This presentation violated Mr. Wood’s right to remain silent and right to the
effective assistance of counsel.

(6)

But for counsel’s deficient performance, the outcome of the trial proceedings
would have been different.

Ground F
Applicant was denied the effective assistance of counsel as guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and Article I, Section
14 of the South Carolina Constitution and South Carolina law including S.C. Code
Sections 16-3-26(B)(1) and 17-23-60 by trial counsels’ failure to prevent access to
Mr. Wood by the South Carolina Department of Mental Health. Estelle v. Smith, 451
U.S. 454 (1981); Buchanan v. Kentucky, 483 U.S. 402 (1987); Powell v. Texas, 492
U.S. 680 (1989); Hudgins v. Moore, 524 S.E.2d 105 (S.C. 1999); Thomas-Bey v.
Page 7 of 95

Nuth, 67 F.3d 296 (Unpublished, 4th Cir. 1995); and Strickland v. Washington, 466
U.S. 668 (1984).
Supporting Facts for Ground F
(1)

An evaluation of John Wood was conducted by the South Carolina
Department of Mental Health.

(2)

Trial counsel was able to deny [] the Department access to John Wood during
February 2002 by letter notifying the trial judge of the denial of such access.

(3)

Trial counsel did not prevent such access after the September 21, 2001
hearing regarding the evaluation related to the capital trial but before the
February 2002 denial of access.

(4)

But for counsel’s deficient performance, the outcome of the trial proceedings
would have been different.

Ground G
Applicant was denied the effective assistance of counsel as guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and Article I, Section
14 of the South Carolina Constitution and South Carolina law including S.C. Code
Sections 16-3-26(B)(1) and 17-23-60 by trial counsels’ failure to expose the incorrect
diagnosis of the medical providers from the South Carolina Department of Mental
Health. Strickland v. Washington, 466 U.S. 668 (1984).
Supporting Facts for Ground G
(1)

The South Carolina Department of Mental Health diagnosed Applicant with
Anti-social personality disorder.

(2)

However, no evidence supports this diagnosis and the medical providers
conducted a less than adequate investigation into the background of Mr.
Wood.

(3)

This diagnosis contradicts that of the doctors from the South Carolina
Department of Corrections, who currently treat Mr. Wood.

(4)

But for counsel’s deficient performance, the outcome of the trial proceedings
would have been different.

Page 8 of 95

Ground H
Applicant was denied the effective assistance of counsel as guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and Article I, Section
14 of the South Carolina Constitution and South Carolina law including S.C. Code
Sections 16-3-26(B)(1) and 17-23-60 by trial counsels’ failure to present mitigating
evidence at the penalty phase of the trial. 1 ABA Standards for Criminal Justice (2d
ed. 1982 Supp.), Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 125 S.
Ct. 2456 (2005); Strickland v. Washington, 466 U.S. 668 (1984).
Supporting Facts for Ground H
(1)

During the penalty phase of the trial below, no pleas of mercy were presented
by any family member of Mr. Wood nor was any information presented
demonstrating Mr. Wood’s “capacity to be of emotional value to others.”

(2)

This information was available at the time of the trial.

(3)

But for counsel’s deficient performance, the outcome of the trial proceedings
would have been different.

Ground I
Applicant was denied the effective assistance of counsel as guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and Article I, Section
14 of the South Carolina Constitution and South Carolina law including S.C. Code
Sections 16-3-26(B)(1) and 17-23-60 by trial counsels’ failure to object [to] improper
closing arguments of the prosecutor. Strickland v. Washington, 466 U.S. 668 (1984).
Supporting Facts for Ground I
(1)

During the prosecutor’s closing of the guilt phase of this trial, the prosecutor
argued that the jury was “looking for factual support to support any
suggestion he didn’t have the requisite intent.” This shifted the burden of
proof to the defendant.

(2)

Further, in the penalty phase, the prosecutor argued that a cop killer is a king
in prison.

(3)

Also, in the penalty phase closing, the prosecutor argued that “this is not
Susan Smith. This is not a man who is going to be sitting in prison worrying
about having killed her two children.”

Page 9 of 95

(4)

Trial counsel failed to object to these arguments.

(5)

But for counsel’s deficient performance, the outcome of the trial proceedings
would have been different.

Ground J
Applicant was denied the effective assistance of counsel as guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and Article I, Section
14 of the South Carolina Constitution and South Carolina law including S.C. Code
Sections 16-3-26(B)(1) and 17-23-60 by trial counsels’ failure to object to the
prosecution[’s] introduction of evidence relevant to an arbitrary factor during the
penalty phase of the trial. Strickland v. Washington, 466 U.S. 668 (1984) and State
v. Burkhart, – S.E.2d – , 2007 WL 80036 (S.C. 2007).
Supporting Facts for Ground J
(1)

During the penalty phase of the proceedings, the state introduced evidence
regarding the privileges available to an inmate who receives a sentence of life
without parole. These privileges include access to the yard, work, education,
meals, canteen, library, recreation, mail, and outside visitors.

(2)

In the closing argument, the prosecution argued that prison “is like being in
a big city—in a little city. You’ve got a restaurant. You’ve got a canteen.
You’ve got a medical center. You got a gymnasium. You’ve got fields to
work out in. They give you clothing. You get contact visits with your family.
You’ve got TV. You play cards and games. You’ve got a social structure.
You’ve freedom of movement....Thirty or forty acres to live in. Watch ball
games on the TV. You go to school....Based on what John Richard Wood
was doing, prison is just about going to be a change of address and nothing
more. He will see his baby every weekend, and that baby will sit in his lap.”

(3)

This evidence and argument injected arbitrary factors into the sentencing
proceeding.

(4)

Trial counsel failed to object to this evidence and argument.

(5)

But for counsel’s deficient performance, the outcome of the trial proceedings
would have been different.

Page 10 of 95

Ground K
Applicant was denied the effective assistance of counsel as guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and Article I, Section
14 of the South Carolina Constitution and South Carolina law including S.C. Code
Sections 16-3-26(B)(1) and 17-23-60 by trial counsels’ failure to object to the equal
protection violation created by the aggravating circumstances making Mr. Wood
death eligible. Strickland v. Washington, 466 U.S. 668 (1984).
Supporting Facts for Ground K
(1)

During the sentencing phase of the trial, the prosecution sought the death
penalty based upon one alleged aggravating circumstance, to wit: The murder
of a state law enforcement officer during or because of the performance of his
official duties.

(2)

The designation of the murder of a law enforcement officer as an aggravating
circumstance for purposes of imposing the death penalty violates equal
protection by placing higher worth on the value of officers’ lives.

(3)

Trial counsel failed to object to this equal protection violation.

(4)

But for counsel’s deficient performance, the outcome of the proceedings
would have been different.

Wood v. South Carolina, 05-CP-23-4737; (ECF No. 40-15) (some citations omitted) (errors in
original). The PCR court held an evidentiary hearing from March 6–8, 2007. (See App. at
2697–3407, ECF No. 44-1 at 34–44-7 at 8.)
On December 19, 2007, following the hearing and briefing from both sides, the PCR court
dismissed Wood’s application. (App. at 3633, ECF No. 45-2 at 92 (“PCR Order”).) Wood moved
for reconsideration, and the PCR court denied that motion. (ECF No. 45-4 at 21, 55.)
PCR Appeal
On appeal, Wood, represented by Mr. Dudek and Senior Appellate Defender Joseph L.
Savitz, III, presented the following issues in his petition for writ of certiorari:

Page 11 of 95

1.

Whether the post-conviction relief court erred by ruling that defense counsel
was not ineffective for failing to object to general prison conditions evidence
purporting to show that prison was like “a city” with many amenities, since
this evidence was inadmissible and improper because it did not focus on
Petitioner’s character or the circumstances of his crime, and this Court years
ago held such prison conditions evidence and circumstances of execution
evidence were improper in State v. Plath?

2.

Whether defense counsel were ineffective at sentencing when they failed to
object to the Solicitor’s closing argument that, if the jury sentenced Petitioner
to life imprisonment, he would “rise in the hierarchy of the prison” and be the
“leader” and “king” of a prison gang, as this argument was not supported by
the evidence or any reasonable inference drawn therefrom and so infected the
proceeding with unfairness as to make the resulting death sentence a denial
of due process?

3.

Whether defense counsel were ineffective at sentencing by failing to secure
the testimony of Petitioner’s sister, Connie, who would have pleaded for
mercy on his behalf and for the sake of his infant son, and would have
corroborated the limited expert mitigation testimony counsel did present?

(ECF No. 40-6 at 3.) After full briefing, the South Carolina Supreme Court denied Wood’s petition
(ECF No. 40-16) and the remittitur issued on November 26, 2012 (ECF No. 40-8).4
Federal Habeas Corpus
This action commenced on December 7, 2012, with Wood’s request to stay his impending
execution and for the appointment of counsel. (ECF No. 1.) On September 19, 2013, Wood filed
his federal petition for writ of habeas corpus, raising the following grounds:
I.

Petitioner’s right to an impartial trial before an impartial jury, guaranteed by
the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution, was violated as a result of the trial court’s decision to excuse a
potential juror for cause.

4

The court notes that Respondents included a petition for rehearing in the Record of State
Court Proceedings; however, that document pertains to a different case. (See ECF No. 40-7.) And
neither party references a petition for rehearing in its procedural background.
Page 12 of 95

II.

Petitioner’s right to a fair and reliable determination of the appropriate
punishment in a capital case, guaranteed by the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution, was violated as
a result of the trial court’s ruling that South Carolina’s death penalty statute
was constitutional in mandating that defendants must forego their right to jury
sentencing if they plead guilty to the charged offenses.

III.

Petitioner’s right to the effective assistance of counsel as guaranteed by the
Sixth Amendment to the United States Constitution was violated when trial
counsel failed to object to the prosecution’s introduction of evidence relevant
to an arbitrary factor during the penalty phase of the trial.

IV.

Petitioner’s Sixth, Eighth, and Fourteenth Amendment rights were violated
by the solicitor’s improper closing argument during the penalty phase of
petitioner’s capital trial.

V.

Petitioner’s right to the effective assistance of counsel as guaranteed by the
Sixth Amendment to the United States Constitution was violated when trial
counsel unreasonably failed to object to multiple comments in the solicitor’s
closing argument.

VI.

Petitioner’s right to the effective assistance of counsel as guaranteed by the
Sixth Amendment to the United States Constitution was violated when trial
counsel failed to adequately investigate and present the full range of
mitigating evidence.

VII.

Petitioner’s rights to the effective assistance of counsel and due process as
guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution were violated when defense counsel’s opening statement
at the penalty phase improperly shifted the burden to the defense to prove
why a life sentence was appropriate and when defense counsel failed to object
to the improper preprinting of juror names on the death sentencing sheet.

VIII.

Petitioner’s due process right to a fair trial was violated by the trial court’s
admission of victim impact evidence, where “law enforcement” was
portrayed as the “victim.”

IX.

Petitioner’s right to the effective assistance of appellate counsel as guaranteed
by the sixth amendment to the United States Constitution was violated by
appellate counsel’s failure to raise the issue of whether the trial court erred
in denying the defense’s motions to bar and limit the admission of victim
impact evidence and overruling defense’s objection to the state’s victim
impact evidence.
Page 13 of 95

X.

Petitioner’s right to due process as guaranteed by the Fourteenth Amendment
to the United States Constitution was violated by the State’s failure to
disclose material, exculpatory evidence that would have undermined the
credibility of a key prosecution witness, and by the State’s presentation of
testimony it knew to be false.

(Pet., ECF No. 85.)
Along with the Petition, Wood filed a motion to stay his federal proceedings while he
pursued his unexhausted claims in state court. (ECF Nos. 85, 86.) The court stayed this case on
October 23, 2013. (See ECF No. 93.)
Second PCR Action
On September 26, 2013, Wood filed a second PCR application in state court alleging the
following grounds for relief:
10(a): Applicant 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 sentencing
phase of his capital trial as a result of trial counsel’s acts or omissions set forth below
in section 11(a). Trial counsel’s performance was both unreasonable and prejudicial
as outlined below. See Strickland v. Washington, 466 U.S. 668 (1984), Wiggins v.
Smith, 539 U.S. 510 (2003), Von Dohlen v. State, 360 S.C. 598, 602 S.E.2d 738
(2004).
11(a): Trial counsel’s acts or omissions included:
(i)

Counsel failed to object to comments by Solicitor Ariail during
summation, which inaccurately and improperly stated that the
prosecution “can only seek it [the death penalty] where the murderers
are mean and evil people based on the circumstances of the crime.”

(ii)

Counsel failed to object to comments by Solicitor Ariail during
summation which inaccurately and improperly stated that imposition
of the death penalty was warranted, because prison life is simply “a
change of address and nothing more,” because “prison is like being
in a city. You’ve got a restaurant, you’ve got a medical center [ . . . ]
[you] watch ball games on TV.”

Page 14 of 95

(iii)

Counsel failed to object to comments by Solicitor Ariail which
improperly asserted that applicant deserved the death penalty for
systemic reasons beyond the facts of applicant’s case: “It’s a tragedy,
potentially, if not properly addressed, on a much greater level, and
that is how it effects law enforcement and the very foundation of a
free society.”

(iv)

Counsel failed to object to Solicitor Ariail’s implication that the
jury’s decision would have long-term consequences on the
community and which injected larger societal issues into the
proceedings beyond the facts of applicant’s case. Solicitor Ariail
improperly urged the jury “on behalf of [. . .] the people of this
community to let that bell ring, to let them know that anyone who is
involved in the killing of a law enforcement officer in the line of duty
who is there to protect the rest of us, that such conduct will not be
tolerated and will receive the ultimate punishment under the law.”[5]

(v)

Counsel improperly shifted the burden to the defense to prove why a
life sentence was appropriate, rather than argue that the State carries
the burden, and a sentence of life is in fact the default presumption.
Counsel stated: “I know that you believe that John Wood deserves to
die for what you have convicted him of. I know that just the crime
itself is enough.” Counsel merely requested that the jury listen to
mitigating evidence, and “if you keep listening in spite of these
feelings that I really believe you and you had, even though it’s
perhaps impossible to imagine that you could justify not executing
John Wood, I would hope that you would find a reason to choose
life–even for John Wood.”

(vi)

Counsel failed to object to pre-printed names of jurors on the
aggravating circumstances/death verdict form provided to the jury
foreperson which clearly implied that it was the proper and expected
role of each juror to sentence applicant to death.[6]

10(b): Applicant 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 sentencing
phase of his capital trial as a result of trial counsel’s failure to adequately develop

5

Ground 10/11(a)(i)–(iv) corresponds with unexhausted portions of Wood’s federal habeas
Ground Five.
6

Grounds 10/11(a)(v)–(vi) corresponds with Wood’s federal habeas Ground Seven.
Page 15 of 95

and present the full range of mitigating evidence as set forth below in section 11(b).
Trial counsel’s performance was both unreasonable and prejudicial as set forth
below. See Strickland v. Washington, 466 U.S. 668 (1984), Wiggins v. Smith, 539
U.S. 510 (2003), Von Dohlen v. State, 360 S.C. 598, 602 S.E.2d 738 (2004).
11(b): Trial counsel’s acts or omissions included:
(i)

Counsel failed to adequately investigate mitigation evidence,
including the failure to call any member of applicant’s family, despite
the fact that applicant’s sister was available and willing to testify at
trial. Counsel failed to do a complete, or even adequate, social
history investigation, speaking with only applicant’s girlfriend (and
co-defendant) and sister, and gathering virtually no institutional
records. See Wiggins v. Smith, 539 U.S. 510, 523 (2003)
(determining that counsel should investigate and consider presenting,
among other things, “medical history, educational history,
employment and training history, family and social history, prior adult
and juvenile correctional experiences, and religious and cultural
influences”).

(ii)

Counsel failed to adequately develop and present evidence that
applicant has significant mental impairments, including cognitive
deficits, learning disabilities and brain damage, autism spectrum
disorder and temporal lobe epilepsy. A pretrial neuropsychological
evaluation revealed that applicant had significant indicators of brain
damage, including: (1) a statistically significant split between verbal
and non-verbal IQ; (2) visual perceptual deficits; (3) increased brain
power in certain areas coexisting with decreased brain power in other
areas in a pattern consistent with dementia; and, (4) excessive
numbers of coherence abnormalities, which is a condition often seen
in cases of brain damage where, to help compensate for brain damage,
brain function has come to involve mass action rather than more
normal, differentiated action. However, trial counsel unreasonably
failed to present this powerful mitigating evidence or investigate
further. Additionally, based on initial investigation and research,
applicant exhibits many symptoms of autism spectrum disorder
(ASD) and temporal lobe epilepsy (TLE). TLE usually manifests
itself with scarring on the temporal lobe that causes neurons to
misfire, ultimately resulting in seizures. The incidence of TLE in
violent criminals is surprisingly high. See EVE LAPLANTE,
SEIZED 215 (2003). Applicant’s symptoms and indicators of TLE
include: (1) parasthesias, which is a condition, commonly associated
with seizures, where the patient experiences a sensation of tingling,
Page 16 of 95

burning, pricking, or numbness, (2) memory difficulties, (3) auditory
and visual hallucinations, (4) hyper-religiosity (5) abnormal EEG
results; and, (6) a neuropsychological test battery indicating
significant brain damage.
(iii)

Trial counsel also failed to investigate and present evidence that
applicant has suffered from sexual abuse.[7]

10(c): Applicant was denied the right to effective assistance of appellate 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 – when
appellate counsel committed the acts or omissions set forth below in Section 11(c).
Appellate counsel’s performance was both unreasonable and prejudicial as set forth
below. See Strickland v. Washington, 466 U.S. 668 (1984).
11(c): Appellate counsel failed to raise the improper presentation of victim impact
evidence issue on direct appeal, as the effects of the crime on police officers were
presented as a “glimpse” into the life of the victim. This issue was preserved and
well litigated at trial, as counsel objected to the testimony as “essentially [. . .]
professional victim impact presentation as opposed to personal family presentation.”
Trial counsel’s motion was denied, and the officer subsequently testified that many
“young troopers have come to me because their spouses [. . .] come to them and say
‘Hey, I want you out [of law enforcement].’” This testimony is unduly prejudicial,
as it improperly broadens the scope of “victim” impact to include effects on the entire
law enforcement community. See Payne v. Tennessee, 501 U.S 808 (1991).[8]
10(d): Applicant’s Sixth, Eighth, and Fourteenth Amendment rights to a
fundamentally fair sentencing proceeding were violated by the solicitor’s improper
closing argument during the penalty phase of applicant’s capital trial.
11(d): Solicitor Ariail made the following improper statements during the penalty
phase summation:
(i)

He inaccurately and improperly stated that the prosecution “can only
seek it [the death penalty] where the murderers are mean and evil
people based on the circumstances of the crime.”

(ii)

He inaccurately and improperly stated that imposition of the death
penalty was warranted, because prison life is simply “a change of

7

Ground 10/11(b) corresponds with Wood’s federal habeas Ground Six.

8

Ground 10/11(c) corresponds with Wood’s federal habeas Ground Nine.
Page 17 of 95

address and nothing more,” because “prison is like being in a city.
You’ve got a restaurant, you’ve got a medical center [. . .] [you]
watch ball games on TV.”
(iii)

He improperly asserted that applicant deserved the death penalty for
systemic reasons beyond the facts of applicant’s case: “It’s a tragedy,
potentially, if not properly addressed, on a much greater level, and
that is how it effects law enforcement and the very foundation of a
free society.”

(iv)

He improperly implied that the jury’s decision would have long-term
consequences on the community and which injected larger societal
issues into the proceedings beyond the facts of applicant’s case.
Solicitor Ariail improperly urged the jury “on behalf of [. . .] the
people of this community to let that bell ring, to let them know that
anyone who is involved in the killing of a law enforcement officer in
the line of duty who is there to protect the rest of us, that such
conduct will not be tolerated and will receive the ultimate punishment
under the law.”[9]

10(e): Applicant’s Eighth and Fourteenth Amendment rights guaranteeing a
fundamentally fair sentencing hearing were violated by the trial court’s admission of
victim impact evidence which improperly portrayed “law enforcement” as the
“victim.” See Payne v. Tennessee, 501 U.S. 808 (1991).
11(e): At trial, the court improperly permitted testimony that portrayed the broader
law enforcement community as a victim of the crime. This issue was preserved and
well litigated at trial, as counsel objected to the testimony as “essentially [. . .]
professional victim impact presentation as opposed to personal family presentation.”
The defense pointed to Payne v. Tennessee, 501 U.S. 808 (1991), and its narrow
holding that only permits “a brief glimpse of the life [of the victim].” Trial counsel’s
motion was denied, and the officer subsequently testified that many “young troopers
have come to me because their spouses [. . .] come to them and say ‘Hey, I want you
out [of law enforcement].’” Moreover, the officer testified to the broader
psychological impact of the crime, saying that “[t]his particular situation has opened
a lot of eyes to a lot of people within the law enforcement community simply because
you never know whether it could be a tractor trailer or it could be a moped. You
don’t know what you’re dealing with anymore.” This testimony is unduly
prejudicial, and improperly broadens the scope of “victim” impact to include effects
on the entire law enforcement community. See Payne v. Tennessee, 501 U.S. 808
(1991). Furthermore, the prejudicial effect of this testimony was exacerbated when,
9

Ground 10/11(d) corresponds with Wood’s federal habeas Ground Four.
Page 18 of 95

during closing arguments at the penalty phase, the solicitor argued that failing to
impose a death sentence would detrimentally affect law enforcement as a whole and
the ability of law enforcement to do their jobs.[10]
10(f): Applicant’s right to Due Process, guaranteed by the Fourteenth Amendment
to the United States Constitution, was violated by the State’s failure to disclose
material, exculpatory evidence that would have undermined the credibility of a key
prosecution witness, and by the State’s presentation of testimony it knew to be false.
11(f): At applicant’s Greenville County trial in February 2002, the State called Karen
McCall, applicant’s co-defendant. McCall testified that as she and applicant were
being pulled over by a police officer, applicant “stomped his foot on the gas,” saying
“I shot the son of a bitch [sic]” and waiving a gun at her so that she would continue
to drive. She said that applicant “reached over [her] and pushed the [rear window]
button himself” in order to open the rear window during the subsequent shoot out.
McCall testified that she was “afraid to die, and . . . didn’t want [her] baby to die,”
saying that she “thought [applicant] was going to kill [her and her baby] and then kill
himself.” When asked what she was doing during the chase and shootout, McCall
said she was praying. During his closing argument, the solicitor repeatedly referred
to McCall’s testimony to illustrate applicant’s “meanness.” Shortly thereafter, during
applicant’s Anderson County trial held in May 2002, SLED agent Gene Donohue
testified that he and another agent investigated McCall’s jeep to assess whether her
account of the events was even possible, in other words, “if it was possible to . . .
commandeer the vehicle from the passenger seat” and “if you could control the
driving, control the gas, control the brakes.” Agent Donohue testified that “[y]ou
can’t reach th[e] accelerator from the passenger side at all” due to the configuration
of the car model and the console that was installed in the car at the time. Agent
Donohue went on to say that “in order to reach the [rear window] switch, . . . you
actually have to lay across the dashboard and the steering wheel to even reach over
it.” All of these SLED experiments relating to the passenger’s access to the rear
window control and the accelerator were conducted on December 15, 2000, more
than a year before applicant’s Greenville trial–the trial where the State portrayed
McCall as a devout and pregnant hostage coerced by someone who was “mean and
rotten to the core.” Thus, well before the Greenville trial, the solicitor knew or
should have known that SLED agents had assessed the plausibility of McCall’s
account and already determined that multiple aspects of the account were
implausible. The State’s failure to disclose this exculpatory, material evidence
within its possession violated applicant’s right to due process. See Kyles v. Whitley,
514 U.S. 419, 432 (2002); Brady, 373 U.S. at 87–88; cf. Youngblood v. West
Virginia, 547 U.S. 867, 869–70 (2006) (holding that Brady suppression occurs even
if favorable evidence is known only to police investigators and not prosecutor).
10

Ground 10/11(e) corresponds with Wood’s federal habeas Ground Eight.
Page 19 of 95

Moreover, the State presented evidence that it knew to be false in violation of
applicant’s right to due process. Napue v. Illinois, 360 U.S. 264, 269 (1959).[11]
Wood v. State of South Carolina, 2013-CP-23-05190; (ECF No. 134-1) (errors in original) (citations
to record omitted). In an order dated July 19, 2016, the PCR court dismissed Wood’s second PCR
application as untimely and improperly successive under state law. (See ECF No. 135-1.) Wood
moved to alter or amend the court’s order (ECF No. 135-2), and the state court denied that motion
by order dated August 3, 2017 (ECF No. 135-3).12 Upon full resolution of Wood’s state court
proceedings, this court lifted the stay in Wood’s federal habeas corpus action. (See ECF No. 126.)
Since Wood filed his petition, he has elected to withdraw Grounds One, Eight, and Nine.
(See ECF No. 150 at 1.) In addition, Wood has recently reported a lack of evidence supporting one
portion of Ground Six. (See ECF Nos. 183, 186.) Accordingly, this Report and Recommendation
will only address Grounds Two through Seven and Ground Ten.
DISCUSSION
A.

Summary Judgment Standard
Summary judgment is appropriate only if the moving party “shows that there is no genuine

dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by “citing
to particular parts of materials in the record” or by “showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible

11

Ground 10/11(f) corresponds with Wood’s federal habeas Ground Ten.

12

Accordingly, all of Wood’s federal habeas claims have now been fully exhausted.
However, because the state court dismissed his second PCR petition for procedural reasons on
adequate and independent state law grounds, any claims not exhausted through his original PCR
application, PCR appeal, and direct appeal remain procedurally barred.
Page 20 of 95

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of summary
judgment “against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving
party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over
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. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once
the moving party makes this showing, however, the opposing party may not rest upon mere
allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth
specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); Celotex
Corp., 477 U.S. at 322.
B.

Habeas Corpus Standard of Review
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

claims adjudicated on the merits in a state court proceeding cannot be a basis for federal habeas
corpus relief unless the decision was “contrary to, or involved an unreasonable application of clearly
established federal law as decided by the Supreme Court of the United States,” or the decision “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)(1), (2). When reviewing a state court’s application of
federal law, “a federal habeas court may not issue the writ simply because that court concludes in
Page 21 of 95

its independent judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor,
529 U.S. 362, 410 (2000); see also White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (describing an
“unreasonable application” as “objectively unreasonable, not merely wrong” and that “even clear
error will not suffice”) (internal quotation marks and citation omitted); Harrington v. Richter, 562
U.S. 86, 100 (2011); Humphries v. Ozmint, 397 F.3d 206 (4th Cir. 2005); McHone v. Polk, 392 F.3d
691 (4th Cir. 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).
“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.” Harrington,
562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also White, 134
S. Ct. at 1702 (stating that “ ‘[a]s a condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement’ ”) (alteration in original) (quoting Harrington,
562 U.S. at 103). Under the AEDPA, a state court’s decision “must be granted a deference and
latitude that are not in operation” when the case is being considered on direct review. Harrington,
562 U.S. at 101. Moreover, review of a state court decision under the AEDPA standard does not
require an opinion from the state court explaining its reasoning. See id. at 98 (finding that “[t]here
is no text in [§ 2254] requiring a statement of reasons” by the state court). If no explanation
accompanies the state court’s decision, “the federal court should ‘look through’ the unexplained
Page 22 of 95

decision to the last related state-court decision that does provide a relevant rationale” and “should
then presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.
Ct. 1188, 1192 (2018). “[T]he State may rebut the [court’s] presumption by showing that the
unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s
decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme
court or obvious in the record it reviewed.” Id.
Pursuant to § 2254(d), a federal habeas court must (1) determine what arguments or theories
supported or could have supported the state court’s decision; and then (2) ask whether it is possible
that fairminded jurists could disagree that those arguments or theories are inconsistent with the
holding of a prior decision of the United States Supreme Court. Id. at 102. “If this standard is
difficult to meet, that is because it was meant to be.” Id. Section 2254(d) codifies the view that
habeas corpus is a “ ‘guard against extreme malfunctions in the state criminal justice systems,’ not
a substitute for ordinary error correction through appeal.” Id. at 102–03 (quoting Jackson v.
Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).
C.

Exhaustion Requirements
A habeas corpus petitioner may obtain relief in federal court only after exhausting 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
Page 23 of 95

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
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.
D.

Respondents’ Motion for Summary Judgment
1.

Ground Two

In Ground Two, Wood challenges the South Carolina Supreme Court’s denial of his claim
that South Carolina’s death penalty statute, South Carolina Code Section 16-3-20(B),
unconstitutionally requires a sentencing proceeding before a judge when a defendant pleads guilty
to murder. Wood argues that South Carolina’s statute violates his Fifth,13 Sixth, Eighth, and
Fourteenth Amendment rights. Under the Sixth and Fourteenth Amendments, Wood claims the
statute violates his right to a jury sentencing in a capital trial, denies him the mitigating effect of
13

The court notes that Wood does not specifically articulate a Fifth Amendment claim in his
habeas petition or elsewhere in the briefing. (See Pet., ECF No. 85 at 9–11; Traverse, ECF No. 150
at 10–15.)
Page 24 of 95

admitting guilt, and impinges his Fourteenth Amendment right to due process. In support, Wood
relies on Ring v. Arizona, 536 U.S. 584 (2002), and Lockett v. Ohio, 438 U.S. 586 (1978). Wood
also asserts that South Carolina’s statute violates his Eighth Amendment rights by introducing an
arbitrary factor “in that the defendant must either be sentenced by a judge or force the jury to endure
a meaningless guilt-or-innocence phase, followed by a sentencing proceeding during which the jury
may or may not know (depending on the judge) that the defendant did not want to contest guilt in
the first place.” (Pet., ECF No. 85 at 10.) Respondents counter that: (1) Wood’s Eighth
Amendment argument was not properly preserved at the trial level and is defaulted; (2) Ring is
inapplicable where a defendant waives his right to a jury trial; and (3) “there is no unfair muting of
mitigating effect” because nothing prevents the defendant from conceding guilt before the jury
during the guilt or innocence phase. (See Return, ECF No. 137 at 51–61.)
Wood’s trial counsel first presented this issue in a motion to quash the State’s notice to seek
the death penalty, asserting a denial of due process. (See App. at 2519–21, ECF No. 43-5 at 42–44.)
After briefing and a hearing, the trial court found the statute constitutional and denied Wood’s
motion, but offered to address the issue during jury selection. (App. at 2521, ECF No. 43-5 at 44.)
At trial, the court again expressed willingness to raise the issue with the jury:
Mr. Mauldin: All right. The next [motion], your honor, was motion filed
November the 21st where we requested a quashing of the death notice where the
defendant - - under statutory scheme the defendant was required to enter a plea of not
guilty and the sentence - - do you remember that motion?
The Court: I do.
Mr. Mauldin: All right.
The Court: And I also remember either I told you on the bench or put it in
a footnote in the order that that struck me as a very sound argument. I don’t believe
it’s constitutionally in firm [sic] to have- - Mr. Mauldin: I’ll hand you my note, your honor. What I wrote you said,
and I think that’s exactly what you said.
Page 25 of 95

The Court: It doesn’t rise to a constitutional violation. But from a practical
standpoint I can understand the benefit a party would seek to obtain by that initial
admission on the front end in the inability to plead guilty to a judge and then submit
sentencing to a jury.
Mr. Mauldin: Yes, sir.
The Court: And I offered from the bench and/or in writing to address that
and to handle that during jury selection if defense counsel so desired.
Mr. Mauldin: Yes, sir.
The Court: So I was willing to tell the jury that the individual wished to
plead guilty, but in order to submit the sentencing issue to them we would go through
the process of a trial first. And then if you had desired that, we would have had long
discussions of how we could approach that with the jury and things of that nature.
Mr. Mauldin: Yes, Sir.
The Court: I specifically remember that one. It struck a chord with me.
Mr. Mauldin: Yes, Sir. And the way our [statute] is set up is just the way it’s
set up. But we don’t believe that it’s appropriate the way it’s set up where it
requires - - well, I’m not going to go through and rehash the argument.
The Court: Right. And my ruling stands on that.
(App. at 1005–06, ECF No. 42-1 at 27–28.) Nothing in the record suggests Wood’s trial counsel
took advantage of the court’s offer.
On appeal, the South Carolina Supreme Court made the following finding:
Appellant asserts Ring v. Arizona, 536 U.S. 584 (2002), renders unconstitutional the
requirement in S.C. Code Ann. § 16-3-20(B) (2003) that the sentencing proceeding
be held before the judge when a defendant pleads guilty to murder.
As we recently stated in State v. Downs, 361 S.C. 141, 604 S.E.2d 377 (2004), the
capital-sentencing procedure invalidated in Ring does not exist in South Carolina.
Arizona’s statute required the judge to factually determine whether there existed an
aggravating circumstance supporting the death penalty regardless whether the judge
or a jury had determined guilt. Ariz. Rev. Stat. § 13-703(C) (2001) (amended 2002);
Ring, 536 U.S. at 597. In South Carolina, conversely, a defendant convicted by a
jury can be sentenced to death only if the jury also finds an aggravating circumstance
and recommends the death penalty. S.C. Code Ann. § 16-3-20(B) (2003); Sheppard
v. State, 357 S.C. 646, 652, 594 S.E.2d 462, 466 (2004). As we noted in Downs,
Ring did not involve jury-trial waivers and is not implicated when a defendant pleads
guilty. Other courts have also reached this conclusion. Therefore, appellant’s
argument is without merit.

Page 26 of 95

State v. Wood, 607 S.E.2d 57, 61 (2004) (some citations omitted). Wood contends that the South
Carolina Supreme Court’s decision unreasonably applied clearly established federal law, specifically
Ring v. Arizona. Wood asserts that Ring is directly applicable to this case and invalidates South
Carolina’s death penalty statute because it deprives him of a constitutional right to plead guilty and
have a jury determine the aggravating circumstances necessary to impose the death penalty.
In Ring, the United States Supreme Court found that Arizona’s capital sentencing structure
violated the Sixth Amendment right to a jury trial in capital prosecutions. Under Arizona’s statute,
“following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting
alone, determines the presence or absence of the aggravating factors required” under the statute for
imposition of the death penalty. Ring, 536 U.S. at 588. Applying its reasoning from Apprendi,14 the
Court found that “[b]ecause Arizona’s enumerated aggravating factors operate as ‘the functional
equivalent of an element of a greater offense,’” a defendant has a right to submit those factors to a
jury for determination. Id. at 609 (quoting Apprendi, 530 U.S. at 494 n.19). Thus, Ring established
that when a defendant exercises his right to a jury trial on a capital offense, he is entitled to have a
jury determine any aggravating factors necessary to impose the death sentence. Importantly, as noted
by the Fourth Circuit in ruling on Virginia’s capital sentencing scheme, which is functionally
equivalent to South Carolina’s,15 Ring did not hold “that a defendant who pleads guilty to capital

14

Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt”).
15

Under Virginia’s capital sentencing scheme, when a defendant is charged with a deatheligible offense, the trial court first submits the issue of guilt or innocence to a jury. If the defendant
is found guilty, then the same jury decides the penalty. However, if the defendant pleads guilty and
waives his right to a jury determination of guilt, the trial judge conducts the sentencing proceeding
alone and determines the existence of any aggravating factors. See Va. Code Ann. § 19.2-257.
Page 27 of 95

murder and waives a jury trial under the state’s capital sentencing scheme retains a constitutional
right to have a jury determine aggravating factors.” Lewis v. Wheeler, 609 F.3d 291, 309 (4th Cir.
2010). Further, “the Ring decision did not clearly establish or even necessarily forecast that a capital
defendant who pleads guilty and waives his right to a jury trial can insist upon a jury trial on
aggravating factors.” Id. at 310.
Here, where Wood did not plead guilty and received a jury determination of both guilt and
penalty, Ring is especially inapplicable. The court cannot find that the South Carolina Supreme
Court’s decision unreasonably misapplied clearly established federal law. Rather, the state court
made a valid distinction between Arizona’s statutory scheme and South Carolina’s and applied
similar reasoning as the Fourth Circuit’s in reaching its conclusion that South Carolina’s statute
violates neither the Sixth nor the Fourteenth Amendments.
Notably, Wood’s Eighth Amendment argument does not expressly appear in the record prior
to this habeas petition.16 Thus, the court agrees with Respondents that this portion of Wood’s claim
is procedurally defaulted. Wood has neither acknowledged the default nor advanced an argument
for cause and prejudice. Moreover, because Wood did not plead guilty and did not accept the trial
court’s offer to address the reason for his technical plea with the jury, a prejudice finding on this
issue would seem untenable.
For the reasons stated above, the court finds that Wood is not entitled to habeas relief on this
ground, and summary judgment should be granted on Ground Two.

16

(See, e.g., Final Br. of Appellant, ECF No. 39-11 at 24–29.)
Page 28 of 95

2.

Ground Three

In Ground Three, Wood asserts that his trial counsel were ineffective for failing to object to
the State’s presentation of evidence on prison conditions during the penalty phase of his trial. The
PCR court considered this claim on the merits and found counsels’ performance deficient, but found
no resulting prejudice. (See App. at 3723–25, ECF No. 45-3 at 70–72.)
To demonstrate ineffective assistance of counsel, a petitioner must show, pursuant to the twoprong test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), that (1) his counsel was
deficient in his representation and (2) the petitioner was prejudiced as a result. Id. at 687; see also
Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating that “the Strickland test provides sufficient
guidance for resolving virtually all ineffective-assistance-of-counsel claims”). To satisfy the first
prong of Strickland, a petitioner must show that trial counsel’s errors were so serious that his
performance fell below the objective standard of reasonableness guaranteed by the Sixth Amendment
to the United States Constitution. To satisfy the second prong of Strickland, a petitioner “must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
The United States Supreme Court has cautioned federal habeas courts to “guard against the
danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).”
Harrington, 562 U.S. at 105. While “ ‘[s]urmounting Strickland’s high bar is never an easy task[,]’
. . . [e]stablishing that a state court’s application of Strickland was unreasonable under § 2254(d) is
all the more difficult.” Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The standards
created under Strickland and § 2254(d) are both “ ‘highly deferential,’ and when the two apply in
tandem, review is ‘doubly’ so.” Id. (citations omitted). Thus, when a federal habeas court reviews
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a state court’s ineffective assistance of counsel determination, “[t]he question is not whether
counsel’s actions were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id.
The Supreme Court has held that a decision containing a reasoned explanation is not required
from the state court. See Wilson, 138 S. Ct. at 1192. As stated above, if no explanation
accompanies the state court’s decision, a federal habeas petitioner must show that there was no
reasonable basis for the state court to deny relief. In the case at bar, this court has the benefit of the
PCR court’s written opinion, certiorari review of which was denied by the South Carolina Supreme
Court, which may provide reasons or theories that the appellate court could have relied upon in
summarily denying Wood’s petition. Therefore, for the ineffective assistance of counsel claims
raised in state court, the court turns to the question whether the PCR court’s order unreasonably
misapplied federal law or was based on an unreasonable determination of the facts. Here, Wood
contends the PCR court’s denial was based on an unreasonable application of Strickland and an
unreasonable determination of the facts. (See Traverse, ECF No. 150 at 8.)
a.

Relevant Background

During the penalty phase, the State called James Sligh, Classification Director for the South
Carolina Department of Corrections, to “establish what life in prison without parole means and to
have a discussion as to the difference between life in prison without parole versus the punishment
of death.” (App. at 1876, ECF No. 42-7 at 116.) The solicitor noted that the issue of prison
conditions had been raised in the opening statements, and, after an off-the-record discussion with
co-counsel, Wood’s attorney, Mr. Mauldin, stated that he did not object as long as Mr. Sligh’s

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testimony was limited to conditions of life without parole. (See App. at 1876–77, ECF No. 42-7 at
116–17.)
On direct examination, Mr. Sligh testified regarding security classifications and general
differences between life on death row and life in the general population. In describing the prison
amenities available to general population inmates, Mr. Sligh agreed that a prison is kind of like a
“mini city” and discussed the cafeteria, laundry, canteen, educational opportunities, vocational
training, and recreational activities. (App. at 1882–89, ECF No. 42-7 at 122–29.) Mr. Sligh also
testified that inmates in general population are allowed contact visitation and have more freedom of
movement. (App. at 1890–92, ECF No. 42-7 at 130–32; App. at 1898, ECF No. 42-8 at 7.) Mr.
Sligh then described death row, where inmates spend most of the day in their cell, are allowed only
one hour of recreation, have noncontact visitation, and are restrained in leg irons, handcuffs, and a
belly chain any time they leave the cell. (App. at 1892–94, ECF No. 42-7 at 132–34; App. at
1895–1902, ECF No. 42-8 at 1–8.) Mr. Sligh also testified that violent incidents among inmates
are more limited on death row. (App. at 1898, ECF No. 42-8 at 4.)
On cross-examination, the defense elicited testimony that, if convicted to life in prison, Wood
would be confined to a level three, high security institution for the rest of his life, with other violent
offenders. (App. at 1905–06, 1907, 1909–10, ECF No. 42-8 at 11–12, 13, 15–16.) Mr. Sligh
testified that the Department of Corrections had the resources, manpower, and authority to control
Wood. (App. at 1906, ECF No. 42-8 at 12.) He agreed with defense counsel that prior institutional
behavior is a good predictor of how someone may act in prison. (App. at 1906, ECF No. 42-8 at 12.)
And, he testified that the presence of gangs and the less restricted freedom of movement created a
greater safety risk for inmates in the general population than death row. (App. at 1908–10, ECF No.
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42-8 at 14–16.) In sum, Mr. Sligh agreed that prison is a “tough place with tough people.” (App.
at 1910, ECF No. 42-8 at 16.)
On redirect, Mr. Sligh testified that the crime the inmate committed can also be a good
indicator of how he will behave in prison, that the guards do not use corporal punishment or deadly
force except in extreme circumstances, and that the majority of inmates make it through their time
in prison without being involved in a violent incident. (App. at 1911–18, ECF No. 42-8 at 17–24.)
Subsequently, the defense called James Aiken as an expert in future prison adaptability and
risk assessment of prisoners. (App. at 2034–35, ECF No. 43-1 at 56–57.) Mr. Aiken testified that,
generally, death row is a safer place than general population. He described predator groups and
gangs in the general population and opined that Wood could be an easy target due to his size and
weight. (App. at 2039–41, ECF No. 43-1 at 61–63.) Mr. Aiken also offered his expert opinion,
based partially on a review of Wood’s past institutional behavior, that the Department of Corrections
would have no problem housing Wood for the rest of his life without an undue risk of harm to the
prison staff, community, or other inmates. (App. at 2041, ECF No. 43-1 at 63.) The solicitor did
not cross-examine Mr. Aiken. (See App. at 2044, ECF No. 43-1 at 66.)
At the PCR evidentiary hearing, Mr. Mauldin initially testified:
And I did not enter an objection [to Mr. Sligh’s testimony] because I was under the
impression that this testimony was going to relate to whether or not John Wood
individually would constitute a future danger, but it was a prison adaptability within
the Department of Corrections setup. Looking back, if I knew that that was what the
testimony was going to be, I probably would not object even knowing what I know
now, because with my witness to come in after him I would want to have the second
bite at the apple so to speak.
(App. at 3045, ECF No. 44-4 at 68.) However, Mr. Mauldin then testified that Mr. Sligh’s testimony
was clearly irrelevant, he should have objected, and that his objection would have been sustained.
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(App. at 3046–47, ECF No. 44-4 at 69–70.) On cross-examination, Mr. Mauldin stated that he made
a conscious decision not to object, but he did not remember the basis for that decision, or what he
discussed with co-counsel during their off-record conference. (App. at 3110–14, ECF No. 44-5 at
7–11.) And, on redirect, Mr. Mauldin reiterated that he could not recall a reason for not objecting,
telling PCR counsel, “I just cannot imagine what the heck I was thinking.” (App. at 3125, ECF No.
44-5 at 22.)
Wood’s other trial attorneys testified that the sentencing phase was primarily Mr. Mauldin’s
responsibility, and neither could remember exactly what was discussed in the off-the-record
conference, but that it must have related to the decision not to object. (See App. at 3309–11,
3373–74, ECF No. 44-6 at 72–74, 136–37.)
b.

PCR Court’s Decision

After reciting the relevant facts and discussing the applicable state law regarding admission
of prison condition evidence, the PCR court applied the following standard: “In the sentencing phase,
Applicant must show ‘there is a reasonable probability that, absent [counsel’s] errors, the sentencer
. . . would have concluded that the balance of aggravating and mitigating circumstances did not
warrant death.’” (App. at 3723, ECF No. 45-3 at 70 (quoting Jones v. State, 504 S.E.2d 822, 823
(S.C. 1998))).17 The PCR court then weighed the aggravating and mitigating circumstances, finding:
Here, we have as extremely aggravated a crime as there could be. It would be bad
enough if Applicant had merely murdered Trooper Nicholson; however, Applicant’s
subsequent wild chase provides an incredible amount of further aggravation.
Applicant wounded another officer with a gunshot to the face, ran civilians off the
road, commandeered a Blue Ridge truck at gunpoint, and only by luck or grace was
not a good enough shot to kill more police officers or innocent civilians with his
17

While the PCR court did not cite directly to Strickland, this portion of Jones quotes
Strickland’s prejudice standard. See Jones, 504 S.E.2d at 823 (quoting Strickland, 466 U.S. at 695).
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repeated gunfire. Applicant had a prior record and had been in prison before, and the
victim impact evidence in this case was particularly moving. Compared to this, there
is limited mitigation, with no family members and relatively mild mental health
testimony without findings of psychosis or delusion at the time of the offense. There
was evidence in rebuttal that Applicant was anti-social.
(App. at 3724, ECF No. 45-3 at 71.)
The PCR court went on to note that the defense benefitted from allowing the State to present
its evidence:
Through cross of Sligh and presentation of James Aiken, the defense elicited how
tough prison is, how Applicant would be far more susceptible to danger in general
population than on death row, and how Applicant would likely be at the mercy of
predator groups inside the general population of prison given his small stature and
older age.
(App. at 3724, ECF No. 45-3 at 71.) Thus, the PCR court concluded:
Given the relative equality of presentation by both sides on the issue of conditions
of confinement, it cannot be said there is a reasonable probability of a different result.
Had counsel objected to the State’s evidence on the issue, it would not have been
allowed to make its own points along these lines as well. Given the overwhelming
evidence in aggravation and the limited evidence in mitigation, admission of both the
State’s and defense’s evidence of conditions of confinement does not establish
Strickland prejudice. Since evidence from both sides came before the jury, argument
on the subject was proper as within record, and the fact that both sides made
argument on this issue does not change the calculation.
(App. at 3724–25, ECF No. 45-3 at 71–72.)
c.

Analysis

Wood asserts the PCR court’s finding is “clearly unreasonable.” (Traverse, ECF No. 150 at
6.) First, Wood suggests both state and federal law on this issue were clear at the time of Wood’s
trial. Wood is correct in his statements that the law at the time “require[d] the jury to make an
individualized determination of punishment specific to the crime and the defendant” and that “a
capital sentencing decision must be based on factors related to the offender as an individual . . . .”
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(Traverse, ECF No. 150 at 6 (citing Woodson v. North Carolina, 428 U.S. 280 (1976); California
v. Brown, 479 U.S. 538 (1987); Lockett v. Ohio, 438 U.S. 586 (1978))). And it appears the
principles espoused in these cases influenced the PCR court’s finding that counsel were deficient in
failing to object to Mr. Sligh’s testimony. (See App. at 3715–19, ECF No. 45-3 at 62–66 (discussing
string of South Carolina cases evaluating the relevance of prison condition evidence to the
individualized determination of punishment)). As Wood notes, admission of an arbitrary factor, such
as conditions of confinement, may invite prejudice. (See Traverse, ECF No. 150 at 6–7.) However,
nothing in federal jurisprudence requires a finding that admission of evidence of conditions of
confinement prejudiced the defendant.
Rather, in assessing prejudice in the penalty phase of a capital case, “the question is whether
there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that
the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466
U.S. at 695. Considering the totality of the evidence before the jury, “a court making the prejudice
inquiry must ask if the defendant has met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.” Id. at 696. The PCR court properly stated
and applied this standard. (See App. at 3723, ECF No. 45-3 at 70.)
Next, Wood questions the PCR court’s reliance on the “relative equality of presentation by
both sides on the issue of conditions of confinement.” (Traverse, ECF No. 150 at 7.)18 Wood
suggests that the PCR court’s reasoning fails to account for the weight attributed to this error by the

18

Wood presents this as a response to Respondents’ argument that Wood did not suffer
prejudice because both sides presented evidence on conditions of confinement. (Traverse, ECF No.
150 at 7.) That portion of Respondents’ brief is from the PCR court’s order, so, for the purposes of
proper habeas review, the court will construe this as an assertion of error by the PCR court.
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South Carolina Supreme Court in State v. Burkhart, 640 S.E.2d 450 (S.C. 2007). In Burkhart, the
South Carolina Supreme Court reversed a death sentence where both the defense and the State
presented similar evidence on prison conditions during the sentencing phase of the trial because the
evidence “invited the jury to speculate about irrelevant matters” and injected an arbitrary factor in
the proceedings in violation of S.C. Code Ann. § 16-3-25(C)(1) (2003). Id. at 453.
The reasoning in Burkhart could, arguably, factor into a prejudice analysis under Strickland.
Considering the PCR court’s detailed discussion of Burkhart, it is reasonable to conclude that it too
recognized the relevance of the case to its analysis. (See App. at 3718–19, ECF No. 45-3 at 65–66.)
Further, Wood raised this argument to the PCR court in his motion to reconsider, reasoning
that “Mr. Wood’s sentence should be reversed for the same constitutional reasons as was Mr.
Burkhart’s.” (Supp. App. at 41, ECF No. 45-4 at 43.) There is nothing to suggest that the PCR court
did not account for this argument before declining to reconsider its decision and denying Wood’s
motion. (See Supp. App. at 63, ECF No. 45-4 at 65.)
Moreover, the South Carolina Supreme Court has recently clarified that Burkhart, which
found a statutory violation on direct appeal, does not support an automatic finding of prejudice once
an arbitrary factor has been introduced. Bowman v. South Carolina, 809 S.E.2d 232, 245–46 (S.C.
2018). Rather, collateral review of an ineffective assistance of counsel claim is subject to
Strickland’s prejudice prong. Id. at 246 (upholding the PCR court’s finding of no prejudice under
Strickland where the evidence of guilt and aggravating factors were overwhelming).
Finally, Wood claims that the PCR court’s reliance on the highly aggravated nature of the
crime failed to consider the length of time the jury deliberated before reaching a sentencing decision.
(Traverse, ECF No. 150 at 8.) According to Wood, the fact that the jury deliberated for
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approximately two days shows that the jury “did not find the issue of sentence to be a quickly
resolved issue.” (Id.) Wood’s contention appears to be that the jury found the evidence more
equally weighted than the PCR court, so the PCR court’s determination was unreasonable. However,
Wood neither asserts nor points to any evidence that the jury’s indecisiveness resulted from
admission of evidence of conditions of confinement or that it was due to any mitigating evidence that
the PCR court failed to consider in its analysis. Thus, Wood fails to tie any perceived prejudice to
counsel’s alleged ineffective act or omission and the court will not presume prejudice. See
Strickland, 466 U.S. at 693 (“Conflict of interest claims aside, actual ineffectiveness claims alleging
a deficiency in attorney performance are subject to a general requirement that the defendant
affirmatively prove prejudice.”).
In sum, after a full review of the record, the court finds that Wood has failed to show that the
PCR court’s application of Strickland’s standards was unreasonable. Further, Wood has failed to
establish that the PCR court’s denial of Wood’s claims in Ground Three was contrary to federal law
or based on any unreasonable factual findings. Accordingly, the court recommends granting
summary judgment on Ground Three.
3.

Grounds Four and Five

Grounds Four and Five challenge a number of statements by the solicitor in his penalty phase
closing argument. Wood presents Ground Four as an independent claim that the solicitor’s closing
argument was improper. Wood did not properly present Ground Four to the state courts in a
procedurally viable manner when he had the opportunity— i.e., through direct appeal— and the state
courts have now found this claim procedurally defaulted under state law. (See ECF No. 135-1 at
54–56.) Thus, Ground Four is procedurally barred from federal habeas review, absent a showing of
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cause and prejudice. See Coleman, 501 U.S. at 750. Wood has not expressed any particular cause
for his default of this ground and, because Ground Four is not a claim of ineffective assistance of
trial counsel, his reliance on Martinez v. Ryan, 566 U.S. 1 (2012), in Ground Five cannot extend to
Ground Four. Nor has Wood asserted his actual innocence. See id.; Bousley v. United States, 523
U.S. 614, 622 (1998). Accordingly, Ground Four remains procedurally barred.
In Ground Five, Wood argues that trial counsel were ineffective for failing to object to those
statements. The statements at issue fall into four general categories: (1) references to a prison
hierarchy and Wood’s potential placement within it; (2) comments on the legislative limitations on
seeking the death penalty and the solicitor’s decision to seek the death penalty in this case; (3) a
description of prison conditions; and (4) a call for the jury to send a message to the community with
its sentence.
It is well established that a prosecuting attorney must act within “the bounds of . . . propriety
and fairness.” Berger v. United States, 295 U.S. 78, 84 (1935). In exercise of that duty, a prosecutor
may not make "improper insinuations and assertions calculated to mislead the jury.” Id. at 85.
Nonetheless, the Supreme Court has made clear that a prosecutor’s improper remarks violate the
Constitution only if they “so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). To obtain relief, therefore, a petitioner must show the
prosecutor’s argument to be (1) improper and (2) so prejudicial as to have denied the petitioner a fair
trial. United States v. Lighty, 616 F.3d 321, 359 (4th Cir. 2010). In evaluating prejudice, the
reviewing court should consider:

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(1) the degree to which the prosecutor’s remarks have a tendency to mislead the jury
and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3)
absent the remarks, the strength of competent proof introduced to establish the guilt
of the accused; and (4) whether the comments were deliberately placed before the
jury to divert attention to extraneous matters.
United States v. Mitchell, 1 F.3d 235, 241 (4th Cir. 1993) (internal quotation marks omitted).
“Courts must conduct a fact-specific inquiry and examine the challenged comments in the context
of the whole record.” Bennett v. Stirling, 842 F.3d 319, 323 (4th Cir. 2016) (citing United States
v. Young, 470 U.S. 1, 11-12 (1985)).
When reviewing a claim of ineffective assistance of counsel, the court must “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (quotation omitted).
Generally, an attorney’s failure to object can be “the product not of ineffectiveness but of strategy.”
Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016); see also Humphries v. Ozmint, 397 F.3d 206, 234
(4th Cir. 2005) (Luttig, J., concurring) (“[I]t is well established that failure to object to inadmissible
or objectionable material for tactical reasons can constitute objectively reasonable trial strategy under
Strickland.”). Further, courts have found that, “[b]ecause many lawyers refrain from objecting
during opening and closing argument, absent egregious misstatements, the failure to object during
closing argument and opening statement is within the ‘wide range’ of permissible professional legal
conduct.” Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013) (quoting United States v.
Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993)).
In his original PCR application, Wood asserted that trial counsel were ineffective for failing
to object to three portions of the solicitor’s penalty phase closing argument, including his references
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to a prison hierarchy, and the PCR court addressed that claim on the merits (See App. at 3705–11,
ECF No. 45-3 at 52–58). Accordingly, that portion of Ground Five is preserved for review and the
court will address it first.
a.

Prison Hierarchy

Here, Wood points to his trial counsel’s failure to object to the solicitor’s claim that Wood
would enjoy a high position in prison because he killed a police officer:
And if [Wood] got away and he went to prison for life, he would become a part of
that hierarchy. And they say we didn't want to bring anything to the table, but let me
tell you what he would bring to the table. What is the most despised aspect that an
inmate has? What does he dislike the most? The cop who put him there. And you are
sending a man to prison who is a cop killer. He'll be a king. He will rise in the
hierarchy of the prison, and he will be a leader.
(App. at 2191, ECF No. 43-2 at 88.)
i.

PCR Evidence and Decision

On direct examination at the PCR evidentiary hearing, Mr. Mauldin, who took the lead in the
penalty phase, stated that his failure to object to this portion of the solicitor’s closing argument was
not based on any strategic decision. (App. at 3041–42, ECF No. 44-4 at 64–65.) On crossexamination, Mr. Mauldin testified that he was not sure he would object even in hindsight. (App.
at 3107–08, ECF No. 44-5 at 4–5.) And, when asked if he did not object because the solicitor was
making a responsive argument to Mr. Aiken’s testimony, Mr. Mauldin did not recall factoring that
into his decision. (App. at 3108, ECF No. 44-5 at 5.) On redirect, Mr. Mauldin reiterated: “My
failure to object to that I’m not going to say was because there had been testimony in the record
supporting that. I don’t remember that being the case.” (App. at 3108, ECF No. 44-5 at 5.) And

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again stated, “I don’t know if I’d object if I heard it right now. . . .” (App. at 3018, ECF No. 44-5 at
5.)
Based on this evidence and a review of the trial record, the PCR court found that the
solicitor’s argument was “within the evidence and inferences” of the record. (App. at 3709, ECF No.
45-3 at 56.) The PCR court noted that, during the penalty phase, Wood’s attorneys had elicited
testimony from Mr. Aiken that “‘there is nothing that would indicate [Wood] would ever be allowed
into an unofficial hierarchy in a prison setting,’” and reasoned that “the solicitor was merely raising
his own contrary inference in response to this defense evidence.” (App. at 3709, ECF No. 45-3 at
56 (quoting App. at 2043, ECF No. 43-1 at 65).) Having found the solicitor’s argument permissible
as an invited response to defense evidence, the PCR court determined that trial counsel could not
have been deficient in, nor Wood prejudiced by, the failure to object. (App. at 3710, ECF No. 453 at 57.) Further, in denying the claim, the PCR court concluded:
Even if the comment was error, this Court finds neither a due process violation nor
ineffective assistance from the failure to object. This one comment in the context of
an entire sentencing hearing for an extremely aggravated crime with limited
mitigation would not have ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’ Donnelly, 416 U.S. at 643. Had
counsel objected, perhaps the comment would have been stricken and a curative
instruction given. Considering the brief nature of the comment, a mistrial was not
warranted, and this Court finds the absence of such an instruction in no way
prevented [Wood] from receiving a fair trial.
(Id.)
ii.

Analysis

Wood asserts the PCR court’s conclusion that the solicitor’s argument was a permissible
response to Mr. Aiken’s earlier testimony is based on an unreasonable determination of the facts in
light of the evidence presented at the state court proceeding. (Traverse, ECF No. 150 at 26.)
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According to Wood, “Aiken never testified to any position in the prison hierarchy that petitioner
might develop and, as trial counsel later acknowledged, there was no evidence in the record that
supported the solicitor’s prison-leader inference.” (Id. (citing trial counsel’s PCR testimony
regarding this claim).) The court disagrees.
During the penalty phase, trial counsel called Mr. Aiken to testify as an expert on future
prison adaptability and risk assessment of prisoners. (See App. at 2034–35, ECF No. 43-1 at 56–57.)
Mr. Aiken testified generally about the differences between life on death row and in maximum
security. (See App. at 2038–40, ECF No. 43-1 at 60–62.) Several times, Mr. Aiken referred to
predator groups and gangs in the prison general population and testified that Wood may be a target
because of his smaller stature, race, and age. (App. at 2039–43, ECF No. 43-1 at 61–65.)
Specifically regarding a prison hierarchy, Mr. Aiken offered the following opinion:
Q
And in terms - - there is some hierarchy in the prison system among the
inmates, would that be a fair statement?
A
When you have human beings confined, there is a hierarchy, yes.
Q
And it depends upon what you bring to the table whether you are in the
hierarchy or not?
A
That’s correct.
Q
And based on your observation and your assessment of Mr. Wood, does he
bring anything to the table to be in the hierarchy?
A
There is nothing that would indicate that he would ever be allowed into an
unofficial hierarchy in a prison setting.
(App. at 2043, ECF No. 43-1 at 65.) The solicitor did not cross-examine Mr. Aiken. (See App. at
2044, ECF No. 43-1 at 66.)
The court finds that Mr. Aiken’s testimony directly supports the PCR court’s decision. Mr.
Aiken did testify regarding the prison hierarchy and Wood’s potential place within it, and the
evidence suggests the solicitor’s statement at closing was in response to this testimony. The

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language in the solicitor’s argument even mirrors trial counsel’s questions during Mr. Aiken’s
testimony. (Compare Aiken Testimony, App. at 2043, ECF No. 43-1 at 65 (“[D]oes [Wood] bring
anything to the table to be in the hierarchy?”), with Solicitor’s Closing Argument, App. at 2191, ECF
No. 43-2 at 80 (“[L]et me tell you what he would bring to the table”).) Thus, Wood has failed to
show by clear and convincing evidence that the PCR court’s factual determination was unreasonable
in light of the evidence before it.
Wood has pursued his state remedies with regard to the remaining portions of Ground Five
through his second PCR application, but Wood did not raise these claims in his original PCR
application and, therefore, they are procedurally defaulted. Wood relies on Martinez to overcome
the default, asserting that Wood’s PCR counsel were ineffective in failing to raise these claims.
Generally, any errors of PCR counsel cannot serve as a basis for cause to excuse a
petitioner’s procedural default of his claims. See Coleman, 501 U.S. at 752. However, in Martinez,
the United States Supreme Court established a “limited qualification” to that rule. Martinez, 566
U.S. at 15. The Martinez Court held that 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. In describing its holding in Martinez, the Supreme Court has
stated:
[w]e . . . read Coleman as containing an exception, allowing a federal habeas court
to find “cause,” thereby excusing a defendant’s procedural default, where (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 “ineffective-assistance-of-trialcounsel claim”; and (4) state law requires that an “ineffective assistance of trial
counsel [claim] . . . be raised in an initial-review collateral proceeding.”

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Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 14, 17–18); see also
Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (summarizing the Martinez test to require
the following: “a reviewing court must determine whether the petitioner’s attorney in the first
collateral proceeding was ineffective . . ., whether the petitioner’s claim of ineffective assistance of
trial counsel is substantial, and whether there is prejudice”).
Thus, to excuse the procedural default of any of Wood’s proposed ineffective assistance of
counsel claims in Ground Five, he must “demonstrate that the underlying ineffective-assistance-oftrial-counsel claim is a substantial one, which is to say that [he] must demonstrate 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)).19 Further, he must “show that [PCR]
counsel’s representation during the post-conviction proceeding was objectively unreasonable, and
that, but for his errors, there is a reasonable probability that Petitioner would have received relief on
a claim of ineffective assistance of trial counsel in the state post-conviction matter.” Sexton, 679
F.3d at 1157; see also Williams, 529 U.S. at 391 (stating that “the Strickland test provides sufficient
guidance for resolving virtually all ineffective assistance-of-counsel claims”); Strickland v.
Washington, 466 U.S. 668, 687 (1984) (stating to demonstrate ineffective assistance of counsel, a
petitioner must show that (1) his counsel was deficient in his representation, i.e. that counsel’s errors
were so serious that his performance was below the objective standard of reasonableness guaranteed
by the Sixth Amendment to the United States Constitution, and (2) he was prejudiced as a result).
19

The court notes that in Miller-El, the Supreme Court explained that to make the requisite
substantial showing of the denial of a constitutional right, “a petitioner must ‘sho[w] that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve encouragement to proceed
further.’ ” Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 463 U.S. 880, 484 (1983)).
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b.

Statutory Limitations and Personal Opinion

In this portion of Ground Five, Wood alleges trial counsel were ineffective for failing to
object to the solicitor’s statement that the State can only seek the death penalty in limited
circumstances and his references to his own decision to seek the death penalty in this case.
Specifically, Wood asserts the impropriety of the following excerpts:
Now, I’m going to tell you again it’s a tough decision, and we know it’s a tough
decision. It was a tough decision - - it’s a tough decision for me to ask you to make
a tough decision. But responsible people make tough decisions.
....
Now, why is the death penalty appropriate in this case? . . . There are mean and evil
people in this world who do not deserve to continue to live with us regardless of how
well confined they are, and that’s why the death penalty is appropriate. And John
Richard Wood is such a mean and evil person. . . .
And the law limits the right of the state to seek the death penalty. We can’t seek it
in every murder. We can only seek it in certain murders. And we can only seek it
in those cases where the murderers are mean and evil people, based on the
circumstances of the crime, and that’s what we’re doing in this case. John Wood is
such a person.
(App. at 2184, 2186–87, ECF No. 43-2 at 81, 83–84.)
Wood argues the solicitor’s comments regarding the statutory limitations on seeking the
death penalty are simply not true. In support, Wood lists cases where the state courts have “broadly”
interpreted the aggravating circumstances in South Carolina’s death penalty statute, and offers
statistics about the number of death-eligible cases. (Traverse, ECF No. 150 at 21–22.)
This argument is unavailing. The solicitor’s comment that he cannot seek the death penalty
in every murder case is true. South Carolina’s death penalty statute does limit the cases in which the
State may seek the death penalty. See S.C. Code Ann. §§ 16-3-20(B), (C)(a) (1996) (stating death

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sentence only imposed upon finding of statutory aggravating circumstance and enumerating those
statutory aggravating circumstances).
More significantly, Wood asserts the solicitor’s comments injected his personal opinion and
non-record facts into the jury’s deliberations and undermined the jury’s sense of responsibility, in
violation of State v. Woomer, 284 S.E.2d 357 (S.C. 1981), and Caldwell v. Mississippi, 472 U.S.
320 (1985).
In Caldwell, the United States Supreme Court held that “it is constitutionally impermissible
to rest a death sentence on a determination made by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” 472
U.S. at 328-29 (finding an Eighth Amendment violation for telling jury that Mississippi Supreme
Court would review any death sentence). “[T]o establish a Caldwell violation, a defendant must
necessarily show that the remarks to the jury improperly described the role assigned to the jury by
local law.” Romano v. Oklahoma, 512 U.S. 1, 9 (1994) (internal quotation marks omitted).
In Woomer, the South Carolina Supreme Court found such a violation where “the solicitor
attempted to minimize the juror’s own sense of responsibility for appellant’s fate by stressing that
he had himself already made the same decision that he was now asking them to make.” 284 S.E.2d
at 359–60. There, the solicitor’s comments regarding his own role and decision clearly equated his
role to that of the jury’s in making a sentencing decision:
You know, the initial burden in this case was not on you all. It was on me. I am the
only person in the world that can decide whether a person is going to be tried for his
life or not. I mean I had the same thing you all did. I had to make up my mind in
regards to this and under the law, if there is any question about it, you ask the judge,
I have to make the first decision as to whether or not a person is going to be tried for
the electric chair. If I didn’t want him tried for the electric chair, there is no way the

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Sheriff or anybody else can make it happen. I had to make this same decision, so I
have had to go through the same identical thing that you all do. It is not easy.
Id. at 359.
Similarly, in State v. Butler, 290 S.E.2d 420 (S.C. 1982),20 the South Carolina Supreme Court
found an Eighth Amendment violation where the solicitor told the jury in his penalty phase closing:
First, it has to pass over my desk. I make the decision. People elect me to make the
decision as to whether or not I think cases ought to be prosecuted. We don’t
prosecute all the cases. And I think that’s one of the hardest impressions sometimes
that we have to make, because people think that I am the mouthpiece of the county
or the mouthpiece of the police and that everything that comes along Norman Fogle
has got to get up there and holler and advocate a position. That is not correct. I have
to use my common sense. So I can share with you just to a small degree this morning
how each and everyone of you feel, because as I stated yesterday before that in order
for this case to get moving as far as the death penalty was concerned I first had to
make that decision, you see, and I have in my opinion, based upon the evidence in
this case, overall, decided that if we are going to have a death penalty law on the
books that if there were any facts that could ever justify it this case justifies it,
justifies it.
Id. at 421. The court concluded, “When a solicitor’s personal opinion is explicitly injected into the
jury’s determinations as though it were in itself evidence justifying a sentence of death, the resulting
death sentence may not be free from the influence of any arbitrary factor . . . .” Id. Wood argues that
the solicitor’s comments in his case are very similar to the solicitor’s closing argument in Butler.
Wood has failed to establish a substantial claim that his trial counsel were deficient in failing
to object to this portion of the solicitor’s argument. Here, unlike the cases Wood relies on, the
solicitor did not go so far as to compare his role to that of the jury or even emphasize his own
decision to seek the death penalty; he merely explained that the State does not choose to pursue the
death penalty for every murder charge, so he had to make an affirmative decision to seek death in

20

Butler was overruled on other grounds by State v. Torrence, 406 S.E.2d 315 (S.C. 1991).
Page 47 of 95

this case. The facts of this case are therefore distinguishable and Wood has failed to show that the
solicitor’s argument was clearly improper under state law. Thus, counsel cannot be said to have been
deficient for failing to raise an objection.
Furthermore, Wood has failed to show that he suffered prejudice as a result of his counsel’s
actions. In the same closing argument, the solicitor reminded the jurors that it was their duty to
determine the sentence. (See App. at 2182, 2183–84, 2194, ECF No. 43-2 at 79 (“[T]he first order
of business that you will have to address when you return to your jury room is has the state proved
an aggravating factor beyond a reasonable doubt.”), 80–81 (“[The death penalty] is a legal penalty
that you have an option of imposing . . . . And what you are doing is you are shaping a lawful
punishment to fit an unlawful act. That is the purpose for which we are engaged at this point. And
it is your responsibility, it is given to you under the law, and you accepted it as part of your oath, to
carry it out fairly.”), 91 (“You have been intrusted [sic] by society, by our system, you twelve have
been entrusted as representatives of the community to determine what the appropriate sentence is
under the facts of this case. And you know this case now as well as anyone involved. . . . So no one
can question your judgment because you have all the facts. And it is your decision and it will be
your decision . . . .”)).
In addition, the trial judge instructed the jury on the applicable burden of proof and its
consideration of evidence in reaching a sentencing decision. (See, e.g., App. at 2216, 2218–25,
2225, ECF No. 43-2 at 113 (“Ladies and gentlemen, having found the defendant, John Richard
Wood, guilty of murder, it is now your duty to determine which sentence to impose upon him.”),
116–22 (explaining the State’s burden in proving the statutory aggravating circumstance and how
to weigh mitigating circumstances), 122 (“In arriving at your decision, you are not to allow passion,
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prejudice or any other arbitrary factor to influence your judgment. As jurors you must make your
decision without bias toward or without prejudice against any party, you must not allow yourself to
be governed by passion or sympathy. You are to honor your oath and, in that regard, carefully and
impartially consider all the evidence in the case and follow the law as I have explained it to you.”)).
Thus, Wood has failed to establish a substantial claim that the jury was misled regarding its role or
the significance thereof in determining Wood’s sentence.
For the foregoing reasons, the court finds that the solicitor’s comments regarding the
statutory limits on seeking the death penalty and his role in the process did not result in a denial of
due process or an Eighth Amendment violation under the Supreme Court’s precedent, and Wood has
failed to show a substantial claim of ineffective assistance of trial counsel for failing to object to
them. See Young, 470 U.S. at 18–19 (finding that it was improper for the prosecutor to express his
personal opinion about the respondent’s guilt, but, in context, the comment could not have misled
the jury); Strouth v. Colson, 680 F.3d 596, 606 (6th Cir. 2012) (concluding that any error in the
prosecutor’s statement to the jury during the penalty phase of a capital murder trial that “no one is
asking you to kill anyone” was harmless and thus reversal was not warranted where other parts of
the closing argument emphasized the importance of the jury’s role in the process). The court cannot
find PCR counsel ineffective for failing to raise an insubstantial claim. Thus, Wood has failed to
establish cause and prejudice under Martinez to overcome the default on this portion of Ground Five.
c.

Prison Conditions

Next, Wood asserts trial counsel were ineffective for failing to object to the following
portion of the solicitor’s closing argument:

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Now, let’s talk a little bit about life in prison, because we brought some evidence to
you and they did too. They brought Mr. Aiken. Mr. Aiken is a long-time employee
of the South Carolina Department of Corrections, and he had a lot of interesting
things to say.
There’s no question in my mind that John Richard Wood can adapt to prison . . . .
Now, you and I may think going to prison for life is serious business. But that’s not
the issue. The issue is, is going to prison for life serious business for John Richard
Wood? Are we really doing anything to John Richard Wood?
Going to prison is like being in a big city - - in a little city. You’ve got a restaurant.
You’ve got a canteen. You’ve got a medical center. You’ve got a gymnasium.
You’ve got fields to work out in. They give you clothing. You get contact visits
with your family. You’ve got T.V. You play cards and games. You’ve got a social
structure. You’ve got freedom of movement. It might be limited, but you’ve got
freedom of movement. Thirty or forty acres to live in. Watch ball games on the T.V.
You go to school. And you do all of those things that you want to. You may not
have a car to drive around, and they may limit your travel. And your standards may
not be as high as what you’re used to. But based on what John Richard Wood was
doing, prison is just about going to be a change of address and nothing more.
He will see his baby every weekend, and that baby will sit in his lap.
(App. at 2189–92, ECF No. 43-2 at 86–89.)
Wood argues these statements were based on inadmissible evidence, were unfounded and
misleading, expanded the scope of the jury’s sentencing decision, heightened the risk of arbitrariness
by encouraging the jury to act out of dissatisfaction with South Carolina’s penological policies, and
violated due process by increasing the risk that Wood’s sentence would be based on information he
did not have the opportunity to deny or explain and by claiming that anything less than death would
be escaping punishment. (See Traverse, ECF No. 150 at 23–24.) Respondents counter that the
solicitor’s comments were narrowly tailored to Wood’s character and, therefore, permissible and that
Wood cannot overcome his default of this claim. (Return, ECF No. 137 at 75–77, 80–81.)

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Consistent with federal Eighth Amendment jurisprudence, South Carolina requires that
“evidence in the sentencing phase of a capital trial must be relevant to the character of the defendant
or the circumstances of the crime.” Burkhart, 640 S.E.2d at 453. “Such determinations as the time,
place, manner, and conditions of execution or incarceration . . . are reserved . . . to agencies other
than the jury.” State v. Plath, 313 S.E.2d 619, 627 (S.C. 1984). Thus, the South Carolina Supreme
Court has cautioned that “[g]enerally, questions regarding . . . prison conditions are not relevant to
the question of whether a defendant should be sentenced to death or life imprisonment without
parole,” and “how inmates, other than the defendant at trial, are treated in prison . . . is inappropriate
evidence in the penalty phase of a capital trial.” State v. Bowman, 623 S.E.2d 378, 385 (S.C. 2005).
However, in recognizing “the tension between evidence regarding the defendant’s adaptability to
prison life, which is clearly admissible, and this restriction on the admission of evidence regarding
prison life in general,” the court noted that “evidence of the defendant’s characteristics may include
prison conditions if narrowly tailored to demonstrate the defendant’s personal behavior in those
conditions.” Burkhart, 640 S.E.2d at 453.
In its discussion above regarding Ground Three, this court determined that the PCR court did
not unreasonably err in its consideration of this standard under Strickland and its resulting finding
that trial counsel’s failure to object to evidence of prison conditions did not prejudice Wood. Wood
has not shown that the evidence of conditions of confinement presented during the sentencing phase
was impermissible. Thus, the court cannot find that the solicitor’s comments on this topic in his
closing statement were based on inadmissible evidence. Consequently, Wood has failed to
demonstrate a substantial claim of ineffective assistance of counsel based on a failure to object to
the solicitor’s closing argument.
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In addition, Wood fails to “overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy,” or show that, had counsel objected, the
result of the proceeding would have been different. Strickland, 466 U.S. at 689, 694 (quotation
omitted). While Mr. Mauldin did not object, he did respond to the solicitor’s comments in his own
closing:
Now, I will say that - - I mean, - - when we went through jury selection, I asked, I
suspect, every one of you, I believe I did - - If I didn’t, I think I asked enough of you
- - to be pretty satisfied that the world outside this courthouse believes life without
parole is a serious penalty. I mean, I’ve never heard such testimony from the
government. It almost made me want to go write my senator and say what the heck
is going on here? But I’ll talk to you a minute about how deceiving that was.
A plea for life in prison is not a plea for leniency. And if somehow out of this record
of this case you have somehow come to that conclusion, then there is nothing I’m
going to be able to do to change your mind. It is beyond my comprehension that the
government is now telling you as jurors when you are faced with perhaps the most
important decision you will ever make that life in prison without parole is not a
serious penalty. It’s - - that is almost scandalous.
We are dealing, folks, with the most - - the two most serious penalties that mankind
knows of. Bar none. You execute them or you banish them forever. I mean, that’s
- - I mean, what else are we going to do? So if they’re saying we’ve only got one
serious penalty and that’s the death penalty, then we are really in serious trouble.
That is real serious. We ought to go down to Columbia and start pounding the doors
if that’s how bad it is.
(App. at 2197–98, ECF No. 43-2 at 94-95.)
Also, in addressing prosecution evidence by Mr. Sligh in his closing, Mr. Mauldin told the
jury:
They wanted to make jail sound soft.
They - - but I’ll tell you a couple of things that I thought were important about his
testimony, come to think of it. His testimony was that in this soft prison that the
prosecutor gives you, his testimony is that three inmates will be living in a space half
the size of that jury box. That’s not my words. Those came from the witness stand.
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He also said that when a person is convicted of murder and sentenced to life in our
state they go into the prison system classified a number three maximum security,
which is the highest classification for security purposes that there is, and they die in
prison when classified a number three maximum security. It don’t matter how good
they behave or what they do or how much they beg. Their security level never
changes.
(App. at 2206, ECF No. 43-2 at 103.)
And, Mr. Mauldin reminded the jury about certain portions of Mr. Aiken's testimony
regarding prison conditions:
He said that John Wood could be housed in the prison without causing a risk of any
harm to any staff. He said that the prisons had the facilities, the staff, the security
systems and the authorization of law to control inmates. He said that John Wood
would be assigned to a cell, in fact, the other fellow told you about that too. He said
that prisons contain violent, dangerous people for long periods of time. He said that
John Wood could and would be placed in closest confinement in maximum security
behind bars and fences with guns on the corner regardless of how he acted.
(App. at 2208, ECF No. 43-2 at 105.)
During the penalty phase, both Wood and the State presented evidence of conditions in prison
and the differences between what a prisoner would experience on death row versus in the general
prison population. It would not be unreasonable for both sides to refer to that evidence to support
their closing arguments. Further, it would not be unreasonable for Wood’s trial attorney, who had
the benefit of making his argument after the solicitor, to choose not to object to the solicitor’s
comments, but instead to take the opportunity to respond and have the last word on the subject
before the jury deliberated. Wood has not offered evidence suggesting counsel’s decision not to
object was not strategic or reasonable. Accordingly, the court finds no reason to set aside the “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional

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assistance.” Strickland, 466 U.S. at 689. The court therefore finds that this portion of Ground Five
does not fall within the narrow Martinez exception and, thus, remains defaulted.
d.

Send a Message

Finally, Wood alleges trial counsel were ineffective for failing to object to the following
portion of the solicitor’s closing argument:
But lastly let me point out what is most important about why the death penalty is
appropriate, and that is because it is the killing of a police officer in the line of duty.
This is more than a regular murder. This is more than your normal killing. And the
legislature recognizes that, not because the legislature passed the law, but because it’s
common sense. It’s common sense. Not that Eric’s life was more valuable than any
other life, it wasn’t. All life is valuable, and Eric’s life was just as valuable as
anyone else’s.
But Eric was a law enforcement officer, and a law enforcement officer - - just like a
soldier, just like a fireman - - in the line of duty, that’s a special circumstance. That’s
a unique circumstance. And the reason it is unique is because law enforcement is the
blue line that separates good from evil in our society. They are all that separates
good from evil.
....
And that’s why the circumstance is so important. Because without law enforcement
. . . crime flourishes and evil people come out of darkness. Without law enforcement
there is anarchy. And that’s why not Eric’s life individually but a law enforcement
officer.
So Eric’s death is a tragedy on a personal level, and it’s a tragedy potentially, if not
properly addressed, on a much greater level, and that is how it affects law
enforcement and the very foundation of our free society. And this was nothing more
than a major attack on law enforcement.
Now, in closing, let me tell you one other thing. You have been entrusted by society,
by our system, you twelve have been entrusted as representatives of the community
to determine what the appropriate sentence is under the facts of this case. And you
know this case now as well as anyone involved [in] it and anyone in the community.
So no one can question your judgment because you have all the facts. And it is your
decision and it will be your decision, and you will speak for the community when you
make that decision. And whatever decision you make, it will ring like a bell outside
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this courthouse. It will ring like a bell to all of those who will listen and all of those
who are listening. And I urge you on behalf of the state of South Carolina and the
people of this community to let that bell ring, to let them know that anyone who is
involved in the killing of a law enforcement officer in the line of duty who is there
to protect the rest of us, that such conduct will not be tolerated and will receive the
ultimate punishment under our law.
(App. at 2192–95, ECF No. 43-2 at 89–92.)
Wood contends that asking the jury to send a message with its verdict directly conflicts with
Eighth Amendment jurisprudence requiring the jury to base its sentencing decision on an
“individualized assessment of the appropriateness of the death penalty.” California v. Brown, 479
U.S. 538, 545 (1987) (O’Connor, J., concurring). Respondents counter that the solicitor’s comments
were proper under state law because references to the jury sending a message to the community with
its sentencing decision are permissible when they are connected to the appropriateness of the penalty
on the facts of the case. See State v. Cain, 377 S.E.2d 556, 592 (S.C. 1988) (finding that the
solicitor’s statement to the jury that a death penalty verdict would send a message to surrounding
counties that “[y]ou don’t do that [murder] in Chesterfield County without paying the price” was “no
more than [a] recommendation[] by the solicitor as to the appropriateness of the death penalty based
on evidence adduced at trial”).
However, Respondents acknowledge the applicability of the Fourth Circuit’s decision in
United States v. Runyon, 707 F.3d 475 (4th Cir. 2013), to this case. In Runyon, the Fourth Circuit
disapproved of a prosecutor’s messages to a jury to “do your duty” and “send a message to the
community, send a message with your verdict.” The court reasoned:
In United States v. Caro, we expressed skepticism about ‘the government’s
comments about messages sent to anyone other than’ the defendant, 597 F.3d 608,
625 n.17 (4th Cir. 2010) . . . . To be sure, juries ‘express the conscience of the
community on the ultimate question of life or death’ when they decide whether to
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impose a death sentence. Witherspoon v. Illinois, 391 U.S. 510, 519 (1968). But
that is different from the prosecution’s comment here. Whereas reminding the jury
that it ‘express[es] the conscience of the community’ nevertheless maintains a proper
focus on the defendant (since any ‘expression’ is directed at the defendant alone),
urging it to ‘send a message to the community’ invites it to play to an audience
beyond the defendant—to use its decision not simply to punish the defendant, but to
serve some larger social objective or to seek some broader social approval as well.
This latter perspective is at least in tension with the individualized assessment of the
defendant's culpability that the Constitution requires.
Id. at 514–15.
But, the court went on to find that “neither comment rendered the proceeding unfair, for ‘the
complained-of comments were isolated, did not rise to the level of argument that might mislead or
inflame the jury concerning its duty or divert it from its task and were made in the context of a case
involving compelling evidence of numerous aggravating factors.’” Id. at 515 (quoting United States
v. Higgs, 353 F.3d 281, 331 (4th Cir. 2003)). In finding that neither comment prejudicially affected
the petitioner, the Fourth Circuit also considered the prosecutor’s statements in light of the entire
closing argument and the judge’s instructions to the jury. The court noted that “the prosecution
repeatedly and accurately explained to the jury how it should weigh any aggravating factors it had
established against any mitigating factors established by the defense,” and the trial court “reinforced
these points in its jury instructions.” Id.
In Wood’s case, as detailed in the court’s analysis of Wood’s claim regarding the solicitor’s
references to the statutory limits on seeking the death penalty and the alleged interjection of his own
opinion, Wood has failed to raise a substantial claim of ineffective assistance of trial counsel based
on a contention that the solicitor’s comments misled the jury about its role in the sentencing process,
the applicable burden of proof, or how to apply that burden to the evidence before it. In addition,
Mr. Mauldin directly addressed this portion of the solicitor’s argument in his closing statement:
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Earlier this week I told you the impact of your verdict, and I want to talk a little bit
about - - about that. You know, the impact was - - you know, ringing bells and
making you somehow respon- - I mean, he wants to make you personally responsible
to the community. I mean, that is not right. That’s not our law. That’s not what this
law does.
What I told you was that your verdict had done two things. It had, in fact, protected
the public. Period. And the reason was there were only two sentences available - life in prison without parole or death. So it has protected the public. The community
is protected.
(App. at 2197, ECF No. 43-2 at 94.) Thus, similar to Runyon, the solicitor’s statement, in context,
did not so infect the proceeding with “unfairness as to make the resulting [verdict] a denial of due
process.” Donnelly,416 U.S. at 643.
Further, had trial counsel objected to this portion of the solicitor’s argument, he would have
highlighted the solicitor’s comments and forfeited the opportunity to respond to them in his own
closing— leaving the jury with only the solicitor’s message before they deliberated. So, the decision
not to object may have been strategic. The court finds no reason in the record and Wood has not
offered evidence suggesting a reason for the court to conclude otherwise. See Strickland, 466 U.S.
at 689 (“[T]he defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”). For these reasons, Wood has failed
to show that his underlying claim of ineffective assistance of trial counsel is substantial. The court
cannot find PCR counsel ineffective for failing to raise an insubstantial claim. Therefore, this
portion of Ground Five is not subject to the Martinez exception and remains defaulted.
Wood also argues counsel’s deficiency and the resulting prejudice based on the cumulative
impact of the solicitor’s statements. The court has reviewed the solicitor’s comments, both
individually and cumulatively, in the context of the whole record and finds that counsel’s decision

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not to object to these portions of the solicitor’s closing argument and, instead, address them in his
own closing, or not address them at all, could well have been a product of his “reasonable
professional judgment[ ],” Jones v. Barnes, 463 U.S. 745, 754 (1983).21 Wood has not provided the
court with any reason to conclude otherwise, leaving the court with only his bare assertions. Wood,
therefore, has not overcome Strickland’s presumption of reasonableness or demonstrated that the
underlying ineffective assistance of trial counsel claims this ground is based upon have “some merit”
under Martinez.
In addition, the court is not persuaded by Wood’s suggestion that “[t]he jury’s lengthy
sentencing deliberations—spanning the course of three days—and the jurors’ ultimate indication that
they were deadlocked indicate that the penalty-phase evidence was not so overwhelming that the
result of the sentencing proceeding would not have been different absent these errors.” (Traverse,
ECF No. 150 at 26.) Wood has not cited any authority, nor is the court aware of any, indicating that
the length of a jury’s deliberations should factor into the court’s prejudice analysis. Nor has Wood
affirmatively linked the jury’s alleged difficulty reaching a verdict with trial counsel’s alleged
ineffectiveness in this ground.
Thus, the court cannot excuse the procedural default of Ground Five and recommends
granting summary judgment on this ground.

21

See also Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir. 1998) (“Having just determined
that none of counsel’s actions could be considered constitutional error, . . . it would be odd to say
the least, to conclude that those same actions, when considered collectively, deprived [the petitioner]
of a fair trial. Not surprisingly, it has long been the practice of this Court individually to assess
claims under Strickland v. Washington”).
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4.

Ground Six22

In Ground Six, Wood asserts his trial counsel were ineffective for failing to investigate and
present the full range of mitigation evidence available at trial, including (1) an adequate social
history and (2) evidence of Wood’s mental impairments. Wood raised his first claim, counsel’s
failure to adequately investigate and present his social history, in PCR and the PCR court addressed
that claim on the merits. However, while Wood presented several grounds in PCR related to his
mental health and evaluations, he did not raise the claim he now presents to the court. To the extent
this portion of Ground Six is procedurally defaulted, Wood asserts cause and prejudice to overcome
the default under Martinez due to PCR counsel’s ineffectiveness.
In assessing counsel’s mitigation investigation and presentation, the court “must conduct an
objective review of [counsel’s] 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). Under Strickland,
22

In the petition, Ground Six alleged Wood’s trial counsel were ineffective for failing to: (1)
call Wood’s sister, Connie Jantz, at trial; (2) adequately investigate and present evidence that Wood
suffered from mental impairments as evidenced in pre-trial psychological evaluations; and (3) further
investigate evidence that Wood may suffer from Autism Spectrum Disorder, Temporal Lobe
Epilepsy, or another brain disorder. (See Pet., ECF No. 85 at 22–25.) Throughout the briefing
period, Wood’s counsel continued to gather information regarding Wood’s potential brain disorder.
(See Traverse, ECF No. 150 at 33–34.) Because this investigation was ongoing, counsel requested
permission to supplement Wood’s Traverse, depending on the results of further testing. (See
Traverse, ECF No. 50 at 34, 34 n.6.) After a series of subsequent tests and expert reports, Wood’s
counsel informed the court that they had not discovered evidence conclusively establishing that
Wood’s existing mental functioning was the result of a long-standing disorder that would have been
apparent at the time of trial and, thus, they would not need to supplement their discussion of Ground
Six in the Traverse. (See ECF No. 183.) Wood’s counsel later clarified that they did not waive the
entirety of Ground Six, but they did not need to further brief Wood’s claim regarding a potential
brain disorder. (See ECF No. 186.)
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strategic 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
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.
466 U.S. at 690–91.
Further, to establish a Sixth Amendment violation, Wood “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)).
a.

Social History

In the Petition, Wood alleges his trial counsel were ineffective for failing to adequately
investigate his social history. In particular, he contends counsel were deficient for: (1) only
interviewing Wood’s girlfriend, Karen McCall, who was also a co-defendant on charges related to
this incident, and Wood’s sister, Elizabeth Martinez, who participated in a check fraud scheme with
Wood and their mother; (2) gathering “virtually no institutional records”; and (3) failing to take
reasonable steps to locate Wood’s other sister, Connie Jantz. (Pet., ECF No. 85 at 23.)
In the Traverse, Wood re-styled the caption of Ground Six to allege only that trial counsel
failed to adequately investigate and present evidence of Wood’s mental impairments and brain
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damage. (See Traverse, ECF No. 150 at 30.) In addition, this section of the Traverse begins with
a “sketch” of Wood’s social history, based on evidence from trial and the PCR evidentiary hearing,
and the following statement from Wood’s habeas counsel:
Apart from this thumbnail sketch, provided largely by McCall and his family
members, petitioner’s social history prior to the time of the crime is a virtual black
hole. Based on undersigned counsel’s investigation, it is now apparent that social
history records from petitioner’s childhood are almost non-existent, and no witnesses
who knew petitioner or his family outside their tight, dysfunctional family circle
could be found.
(Traverse, ECF No. 150 at 30–31.) While this statement seems to suggest this portion of Ground
Six lacks merit, counsel have clarified that they are still pursuing this claim, but they focus on trial
counsel’s failure to call any family witnesses or locate Ms. Jantz.23 (See ECF No. 186 at 1.)
At trial, the jury did not hear directly from any of Wood’s family members. Rather, defense
counsel presented Wood’s social history through a social worker, Jeff Youngman.

After

interviewing Wood; Wood’s girlfriend, Karen McCall; and one of Wood’s sisters, Elizabeth
Martinez; receiving information from Wood’s mother; and reviewing certain records (See App. at
1978, 1991–94, 1996–97, ECF No. 42-8 at 84, 97–100, 102–03), Mr. Youngman concluded
that there is evidence that John Wood’s social and emotional functioning as an adult
was affected by his family dysfunction, that there is evidence that John Wood’s social
environment played an adverse role in his level of social and emotional functioning,
there is evidence that John Wood’s behavior is consistent with that of someone
suffering from mental illness, and there is evidence that John Richard Wood . . . has
no significant history of prior criminal convictions involving violence against another
person.

23

This comports with the claim Wood raised on PCR appeal and properly exhausted:
“Whether defense counsel were ineffective at sentencing by failing to secure the testimony of
Petitioner’s sister, Connie, who would have pleaded for mercy on his behalf and for the sake of his
infant son, and would have corroborated the limited expert mitigation testimony counsel did
present?” (See ECF No. 40-6 at 3.)
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(App. at 1975, ECF No. 42-8 at 81).
On cross-examination, Mr. Youngman stated he did not talk to Wood’s other sister, Ms.
Jantz, because “[n]one of the family knows where she’s at.” (App. at 1991–92, ECF No. 42-8 at
97–98.) He stated he believed she was living in Maryland, but that nobody could locate her. (App.
at 1991–92, ECF No. 42-8 at 97–98.) In addition, Mr. Youngman indicated he did not speak with
Wood’s mother directly, but relied on information passed on by a mitigation investigator. (App. at
1996–97, ECF No. 42-8 at 102–03.) He later stated he had to rely on information from the
mitigation investigator because Wood’s mother would not make herself available to speak with him.
(App. at 2024, ECF No. 43-1 at 46.) Mr. Youngman further testified that it was “virtually
impossible” to obtain records and identify individuals to interview due to the frequency with which
Wood’s family moved and the lack of meaningful relationships in Wood’s life. (App. at 2021, ECF
No. 43-1 at 43.)
Richard Kerns, the defense team’s investigator, brought a picture of Woods as a first or
second grader that he testified was supplied by Wood’s sister, Ms. Martinez. (App. at 2053, ECF
No. 43-1 at 76.)
Dr. Donna Schwartz-Watts, a forensic psychiatrist, indicated she was able to speak with Ms.
Martinez and Ms. McCall but that Wood’s parents changed their phone number after speaking with
the mitigation investigator, so, despite “numerous attempts,” she was not able to contact them. (App.
at 2067–68, ECF No. 43-1 at 90–91.)
At the PCR evidentiary hearing, Mr. Mauldin testified that, while he did not personally make
any direct attempts to contact Ms. Jantz, he knew through his mitigation investigator that Ms.
Martinez had written Ms. Jantz letters and attempted to call, but the letters were not responded to
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and the phone number had been disconnected. (App. at 3027–30, ECF No. 44-4 at 50–53.) In
addition, Mr. Mauldin could not recall any family witness who wanted to testify in the mitigation
phase. (App. at 3102, ECF No. 44-4 at 125.) He specifically recalled Wood’s mother as “very
uncooperative” and testified that she did not express any desire to participate in her son’s defense.
(App. at 3102, ECF No. 44-4 at 125.) Mr. Mauldin recalled Ms. Martinez as very involved in
locating Ms. Jantz and in managing family issues regarding who would take custody of Wood’s child
while both he and Ms. McCall were incarcerated. (App. at 3102–03, ECF No. 44-4 at 125–26.) Mr.
Mauldin could not recall a specific reason for not calling Ms. Martinez as a witness. (App. at 3104,
ECF No. 44-5 at 1.) However, Mr. Bannister testified that they did make a strategic decision not to
call Ms. Martinez, stating, “after talking with her it just became apparent that she was not going to
be - - we couldn’t use her.” (App. at 3297, ECF No. 44-6 at 60.)
Dr. Schwartz-Watts testified at the PCR evidentiary hearing that Mr. Mauldin took a very
organized approach to his mitigation investigation, employing the services of a mitigation specialist
and a social worker, in addition to Dr. Schwartz-Watts, and holding regular team meetings to
exchange information. (App. at 2856–57, ECF No. 44-2 at 41–42.) She stated the only issue in the
preparation of the case was the difficulty everyone had finding Wood’s family members. (App. at
2857, ECF No. 44-2 at 42.) But, she was under the impression the mitigation specialist was making
sincere efforts to locate them. (App. at 2859, ECF No. 44-2 at 44.)
With the help of an investigator, PCR counsel were able to locate Ms. Jantz (App. at
2671–72, ECF No. 44-1 at 8–9), and she testified at the PCR evidentiary hearing (see App. at
2755–805, ECF No. 44-1 at 92–142). Ms. Jantz spoke with Dr. Schwartz-Watts during the
evidentiary hearing and reported she did not know where her parents were at that time, but believed
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they may be in Mexico and that her mother may still be running afoul of the law. (App. at 2854,
ECF No. 44-2 at 39.) Ms. Jantz testified that PCR counsel were the first attorneys to contact her
regarding Wood’s case and that she only knew about the case through the news and her sister, Ms.
Martinez. (App. at 2790, ECF No. 44-1 at 127.) She indicated that, at the time of Wood’s arrest,
she was living in Harpers Ferry, West Virginia, but that she moved to Maryland in the summer or
fall of 2001. (App. at 2796–97, ECF No. 44-1 at 133–34.) And, in an effort to keep her mother from
finding her, Ms. Jantz had an unlisted phone number and used a post office box for mail. (App. at
2798–802, ECF No. 44-1 at 135–39.) However, Ms. Jantz believed Ms. Martinez had her phone
number and recalled receiving a letter from Ms. Martinez with a picture of Wood’s baby. (App. at
2801–02, ECF No. 44-1 at 138–39.) Ms. Jantz stated that if she had testified at trial, she would have
asked the jury to spare her brother. (App. at 2794, ECF No. 44-1 at 131.)
Based on these facts, the PCR court found: trial counsel were “not deficient with regard to
seeking family help for background and possible testimony in mitigation”; Wood’s family was
mostly uncooperative; trial counsel made reasonable efforts to contact Ms. Jantz, but she was
unresponsive because of her desire to avoid her family; Wood did not suffer prejudice from the fact
that Ms. Jantz did not testify because her testimony was mostly cumulative of Mr. Youngman’s and
Dr. Schwartz-Watts’s trial testimony and would not “create a reasonable probability that the jury
would have concluded the balance of aggravating and mitigating circumstances did not warrant
death”; and Wood failed to offer evidence showing trial counsel’s decision not to call Ms. Martinez
was not strategic or present testimony from Ms. Martinez as to information she could have provided
at trial. (App. at 3704–05, ECF No. 45-3 at 51–52.)

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Specifically regarding the impact of Ms. Jantz’s testimony, the PCR court found:
Given the introduction of much of the background at trial and the extremely
aggravated nature of this crime, this Court is not persuaded that Jantz’s request to the
jury to spare her brother’s life and her mention of the fact that he has a child would
create a reasonable probability that the jury would have concluded the balance of
aggravating and mitigating circumstances did not warrant death.
(App. at 3704, ECF No. 45-3 at 51.)
Wood has not argued that any of the PCR court’s findings are contrary to established
Supreme Court precedent or are based on an unreasonable determination of the facts and, after a
careful review of the record, the court cannot find the PCR court’s decision unreasonable. The
record suggests trial counsel’s mitigation investigator was attempting to locate and contact Ms. Jantz,
including accepting help from Ms. Martinez, who was the only family member providing any
assistance. It does not appear that trial counsel or the mitigation team had any reason to know that
Ms. Jantz was actively avoiding her family. And, while there is intrinsic benefit to presenting a
family member to request mercy, the mitigating information Ms. Jantz testified to at the PCR
evidentiary hearing about Wood’s childhood and education was presented to the jury through Mr.
Youngman’s and Dr. Schwartz-Watts’s testimony at trial.24 Ms. Martinez and Wood’s mother had
criminal records and the evidence suggests Wood’s mother was uncooperative and possibly on the
run from police. Wood and Ms. Martinez apparently did not identify any other family members to
contact. And trial counsel stated they made a strategic decision not to present Ms. Martinez—a
statement which, although not thoroughly explained, Wood has not contradicted. Accordingly, the
24

This is even evidenced in the beginning of this section of Wood’s Traverse where, with the
exception of direct quotations from Ms. Jantz’s testimony and the fact that Wood’s mother
completed his correspondence courses for him, each fact of Wood’s social history is supported by
either parallel citations to Mr. Youngman’s and Ms. Jantz’s testimony or citations only to Mr.
Youngman’s testimony. (See Traverse, ECF No. 150 at 30–31.)
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court finds that Wood has failed to show that the PCR court’s decision on this portion of Ground Six
was unreasonable.
b.

Mental Impairments

Before his Greenville County trial, Wood requested that his Anderson County counsel move
for a competency and criminal responsibility evaluation.25 (See App. at 2503, ECF No. 43-5 at 26.)
His counsel did so, the court ordered the evaluation, and the State requested the evaluation be
available to it for use in the Greenville County case. (See App. at 2503, ECF No. 43-5 at 26.)
Wood’s Greenville County trial counsel strongly objected and the trial court held a hearing on the
issue. (See App. at 2433–35, ECF No. 43-4 at 66–68.) Ultimately, the trial court directed the
Department of Mental Health to submit the report to the court and deferred deciding the matter of
disclosure until a later date. (See App. at 2503, ECF No. 43-5 at 26.)
Wood met with the designated examiner, forensic psychiatrist Dr. Prapap Narayan, twice and
underwent evaluations by other Department of Mental Health employees. (See App. at 957, ECF
No. 41-9 at 51.) However, after those initial evaluations, Wood and his trial counsel refused to
provide any further information. (See App. at 962, ECF No. 41-9 at 56.)
During the penalty phase, Mr. Youngman opined Wood’s behavior was consistent with
someone suffering from a mental illness and suggested Wood had paranoid personality disorder.
(App. at 1988, ECF No. 42-8 at 94.) Mr. Youngman testified that he reviewed the state mental
health evaluation in formulating his opinion. (App. at 1992–93, ECF No. 42-8 at 98–99.)
25

Mr. Bannister and Mr. Mauldin originally represented Wood in both the Anderson County
and Greenville County matters. However, after their disagreement with Wood regarding the
competency evaluation and at Wood’s request, Mr. Bannister and Mr. Mauldin were relieved as
counsel in the Anderson County case and the court appointed Bruce Byrholdt. (See App. at
2433–34, ECF No. 43-4 at 66–67.)
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Accordingly, the State was able to review Dr. Narayan’s report in full and cross examine Mr.
Youngman on the report. (App. at 2017–19, ECF No. 43-1 at 39–41.) However, the court gave a
limiting instruction that examination on statements relied upon by the expert were only to be
considered as to the assessment of the expert’s opinion and not for the truth of the matter asserted.
(App. at 2003–15, ECF No. 43-1 at 25–37.) Through this examination, the State introduced
inconsistencies in Wood’s reports between his two interviews with Dr. Narayan and elicited
testimony about a lack of mental health treatment records or any evidence suggesting Wood had
mental health issues. (App. at 2017–20, ECF No. 43-1 at 39–42.)
Trial counsel then called their mental health expert, Dr. Schwartz-Watts. Dr. Schwartz-Watts
also partially relied on the Department of Mental Health records and testified that Wood’s
Department of Mental Health neurological examination was completely normal. (App. at 2066, ECF
No. 43-1 at 89.) However, she did mention that Wood had a history of mild head injuries as a
toddler. (App. at 2066, ECF No. 43-1 at 89.) Based on her review of Wood’s records, consultations
with other experts, and interviews with Wood, Dr. Schwartz-Watts diagnosed bipolar disorder not
otherwise specified and paranoid personality disorder. (App. at 2070, ECF No. 43-1 at 93.) She
described those illnesses and Wood’s behaviors and symptoms that led her to those diagnoses,
including hearing voices and examples of his extreme paranoia and avoidance. (App. at 2071–84,
ECF No. 43-1 at 94–107.) When questioned, Dr. Schwartz-Watts specifically opined that Wood did
not meet the criteria for antisocial personality disorder because he did not have a history of being in
trouble prior to age fifteen. (App. at 2085–86, ECF No. 43-1 at 108–09.) She also opined Wood had
not malingered any of his symptoms. (App. at 2086, ECF No. 43-1 at 109.)

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On cross-examination, Dr. Schwartz-Watts stated she agreed with Dr. Narayan’s conclusions
that Wood was competent to stand trial, could differentiate between right and wrong, and was
capable of conforming his conduct to the requirements of the law. (App. at 2118–19, ECF No. 43-2
at 15–16.)
The State called Dr. Narayan as a reply witness. Dr. Narayan testified that the Department
of Mental Health’s evaluation team included himself, a social worker, a clinical psychologist, and
a neurologist. (App. at 2144, ECF No. 43-2 at 41.) When asked about the neurological exam, he
responded that Wood’s neurological status was normal, but the report was “of significance not from
a neurological point of view but from some other information that it contained.” (App. at 2145, ECF
No. 43-2 at 42.) Based on his assessment, Dr. Narayan diagnosed Wood with history of alcohol,
cocaine, and hallucinogen abuse, possible ongoing cannabis abuse, and antisocial personality
disorder. (App. at 2148, ECF No. 43-2 at 45.) He did not find evidence of bipolar or paranoid
personality disorder. (App. at 2150–51, ECF No. 43-2 at 47–48.) Dr. Narayan described a
psychiatric evaluation from the Greenville County Detention Center dated December 11, 2000,
indicating Wood suffered from a personality disorder, which the detention center psychiatrist
specified as “sociopath.” (App. at 2151–52, ECF No. 43-2 at 48–49.) And Dr. Narayan testified
regarding other detention center records stating Wood did not exhibit signs of a mood or psychotic
disorder or demonstrate any abnormal behavior. (App. at 2152–53, ECF No. 43-2 at 49–50.) In
addition, based on several inconsistencies in Wood’s interviews and the results of psychological
testing, Dr. Narayan opined Wood was malingering. (App. at 2157–59, ECF No. 43-2 at 54–56.)
During closing, trial counsel asserted Wood was mentally ill and had substantially impaired
ability to conform to the law. (See App. at 2203–05, 2207, 2209–10, ECF No. 43-2 at 100–102, 104,
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106–07.) At trial counsel’s request, the court instructed the jury on three mitigators related to
Wood’s mental health: (1) mental or emotional disturbance, (2) substantial impairment of the
defendant to appreciate the criminality of his conduct or to conform his conduct with the law, and
(3) the age or mentality of the defendant at the time of the crime. (App. at 2223, ECF No. 43-2 at
120.) In addition, the court instructed the jury that it could consider any non-statutory mitigating
factors. (App. at 2223–24, ECF No. 43-2 at 120–21.)
During deliberations, the jury requested to rehear testimony from Dr. Schwartz-Watts and
Dr. Narayan regarding Wood’s mental state, and the court obliged. (App. at 2235–39, ECF No. 43-3
at 6–10.) After the jury resumed deliberations, Mr. Mauldin stated for the record his position that
Wood’s Anderson County counsel’s consent to the Department of Mental Health evaluation without
considering a possible impact on his Greenville County trial was per se ineffective assistance of
counsel and directly resulted in the admission of Dr. Narayan’s testimony. (App. at 2251, ECF No.
43-3 at 22.)
In his PCR application, Wood asserted his trial counsel were ineffective for failing to: (1)
object to the testimony from medical providers of the South Carolina Department of Mental health,
(2) prevent access to Wood by the South Carolina Department of Mental Health, and (3) expose the
incorrect diagnosis of the medical providers from the South Carolina Department of Mental Health.
(App. at 3640–41, ECF No. 45-2 at 99–100.)
To support these claims, PCR counsel called the four Department of Mental Health
employees who examined Wood, including Dr. Narayan, and questioned them almost exclusively
regarding the antisocial personality disorder diagnosis and whether it was supported by evidence of

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misconduct before the age of fifteen. (See App. at 3134–64, 3196–3255, ECF No. 44-5 at 31–61,
ECF No. 44-5 at 93–44-6 at 18.)
In addition, PCR counsel presented testimony from two other psychiatrists—Dr. Thomas
Cobb and Dr. Schwartz-Watts. Dr. Cobb testified he had been treating Wood through the South
Carolina Department of Corrections since the end of 2002 or beginning of 2003 (App. at 2713, ECF
No. 44-1 at 50) and that during his time with the Department of Corrections Wood had been
diagnosed with antisocial personality disorder, bipolar disorder, psychotic affective disorder, mood
disorder not otherwise specified, substance dependence, intermittent explosive disorder, and
substance induced psychosis (App. at 2720, ECF No. 44-1 at 57). He stated that, other than
antisocial personality disorder, all of Wood’s conditions were treatable and that Wood had been
responding to medication. (App. at 2721, 2727, ECF No. 44-1 at 58, 64.) However, Dr. Cobb noted
the only treatment for antisocial personality disorder was incarceration. (App. at 2721, ECF No. 441 at 58.)
On cross-examination, Dr. Cobb noted a person’s mental state is fluid and could be impacted
by extended incarceration. (App. at 2733–35, ECF No. 44-1 at 70–72.) He also agreed that the
Department of Corrections medical records contained multiple entries by different members of the
treatment team diagnosing Wood with antisocial personality disorder. (App. at 2742–45, ECF No.
44-1 at 79–82.)
Dr. Schwartz-Watts explained why she disagreed with Dr. Narayan’s diagnosis of antisocial
personality disorder. (App. at 2830–34, ECF No. 44-2 at 15–19.) She reported that she and Mr.
Mauldin had difficulty getting Wood to cooperate and that Wood admitted to faking symptoms of
mental illness during his evaluations at the Department of Mental Health. (App. at 2845–46, ECF
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No. 44-2 at 30–31.) Wood was not very forthcoming, he did not have many friends or family
members to provide information, and the defense team was unable to locate records from his
childhood. Accordingly, Dr. Schwartz-Watts had a difficult time conducting her mental health
evaluation. (See App. at 2858, ECF No. 44-2 at 43.)
Mr. Mauldin explained that he and Wood had a serious disagreement about whether Wood
should submit to a state evaluation. (App. at 3069, ECF No. 44-4 at 92.) He testified that Wood was
already being evaluated by the defense team’s private psychiatrist in preparation for the Greenville
County trial and he did not want anything in the Anderson County case to “damage” the Greenville
County case. (App. at 3068, ECF No. 44-4 at 91.) While it may have been “awkward” to argue
against his client’s position (App. at 3091, ECF No. 44-4 at 114), because Mr. Mauldin did not
believe Wood was incompetent, he viewed the evaluation as merely a means for the State to slip in
anti-mitigation evidence.
Mr. Bannister testified that he and Mr. Mauldin felt that nothing good could come out of a
Department of Mental Health evaluation and strongly advised Wood on multiple occasions not to
participate. (App. at 3312–13, ECF No. 44-6 at 75–76.) Once the evaluation was done, counsel
knew that calling Dr. Schwartz-Watts could open the door to Dr. Narayan’s testimony and the
Department of Mental Health report. (App. at 3314, ECF No. 44-6 at 77.) But, given the dearth of
mitigating evidence in the case, they decided they had to take the risk and present Dr. SchwartzWatts. (App. at 3314–14, ECF No. 44-6 at 77–78.)
Based on this evidence, the PCR court found trial counsel were not ineffective for failing to
object to Dr. Narayan’s testimony, failing to prevent Wood from undergoing a Department of Mental

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Health evaluation, or failing to impeach Dr. Narayan’s antisocial personality disorder diagnosis.
(See App. at 3667–701, ECF No. 45-3 at 14–48.)
In contrast to his original PCR claims, Wood now argues trial counsel were ineffective for
failing to present evidence from a pretrial neuropsychological evaluation that revealed indicators of
brain damage, including:
(1) a statistically significant split between verbal and non-verbal IQ; (2) visual
perceptual deficits; (3) increased brain power in certain areas coexisting with
decreased brain power in other areas in a pattern consistent with dementia; and, (4)
excessive numbers of coherence abnormalities, which is a condition often seen in
cases of brain damage where, to help compensate for brain damage, brain function
has come to involve mass action rather than more normal, differentiated action.
(Pet., ECF No. 85 at 24.) Neither Wood nor Respondents cite to the location of this report in the
record nor has Wood provided it to the court. Further, this allegation is only mentioned in the
Petition and in Wood’s reply regarding the status of Ground Six (ECF No. 186), and is not briefed
or argued by either party. Therefore, the court finds that Wood has abandoned this claim. Moreover,
even if Wood has not abandoned this portion of Ground Six, he has not shown that this claim is
substantial under Martinez and, therefore, cannot overcome the procedural default. Accordingly, the
court recommends granting summary judgment on Ground Six.
5.

Ground Seven

In Ground Seven, Wood asserts that his trial counsel’s opening argument at the penalty
phase, combined with the State’s closing argument and preprinted verdict forms shifted the burden
to the defense to overcome a seemingly presumptive death sentence. Thus, Wood alleges that his
trial counsel was ineffective in making his opening statement and in failing to object to the State’s
closing argument (See Ground Five) and to the verdict forms. Ground Seven was raised only in the

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second PCR proceeding and is, therefore, exhausted but defaulted. Wood relies on Martinez to
overcome the default, arguing that his first set of PCR counsel were ineffective in failing to raise this
claim.
Just as the conduct of prosecutors is circumscribed, defense counsel is subject to the same
“duty to confine arguments to the jury within proper bounds.” Young, 470 U.S. at 9. Thus, defense
counsel may not make “improper insinuations and assertions calculated to mislead the jury,” Berger,
295 U.S. at 85, or “use arguments calculated to inflame the passions or prejudices of the jury,”
Darden, 477 U.S. at 192. However, improper comments only impinge the Constitution if, in the
context of the whole record, they have denied the defendant a fair trial. See Donnelly, 416 U.S. at
643 (indicating that solicitor’s improper remarks only violate the Constitution if they “so infected
the trial with unfairness as to make the resulting conviction a denial of due process”); Lighty, 616
F.3d at 359 (recognizing that prosecutor’s argument must be both improper and so prejudicial as to
deny a defendant a fair trial); Bennett, 842 F.3d at 323 (“Courts must conduct a fact-specific inquiry
and examine the challenged comments in the context of the whole record.”).
In addition, to show that his underlying claim of ineffective assistance of trial counsel has
merit, Wood must overcome the “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance” and that, “under the circumstances, the challenged
action might be considered sound trial strategy.” Strickland, 466 U.S. at 689. Wood must further
show there is a reasonable probability that the jury would not have concluded that the balance of
aggravating and mitigating circumstances warranted death absent counsel’s alleged errors. Id. at
695–96.

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In his opening statement in the penalty phase, Mr. Mauldin told the jury:
On Monday, when you filed into this courtroom with your verdict and the verdict was
passed to the clerk and read by the clerk, I watched you, and I saw the sadness in your
faces, and I saw the anger in your faces, and I knew that that sorrow was for Eric
Nicholson and for Misty Nicholson and that anger was for John Wood.
I know that you believe that John Wood deserves to die for what you convicted him
of. I know that you believe that just the crime itself, the nature of the crime itself, is
just enough. I know that somehow the imposition of execution feels right today.
And I guess you may feel shocked to hear me, of all people, actually saying that. But
quite frankly I think that needs to be said. You are only halfway through this ordeal,
this journey, this responsibility. And I don’t know that - - the second half is not
going to be as long in time as the first half, but I think it’s going to be a whole lot
longer in significance to you. But I also believe that you actually want do to [sic]
what’s right. I think you actually want to do what’s right, otherwise you wouldn’t
have subjected yourself to this ordeal.
I believe that in order to go forward and do what is right you’ve got to acknowledge
your own feelings, and that’s why I make these comments. You know, we need to
kind of strip away some of the façade and some of the covering and actually face
some of these facts. There is no reason to assume you have some false sense of
impartiality, I mean after what you’ve heard. It doesn’t really make good sense to
me. You are angry and you are outraged, and we understand that. You know, when
jurors come into the courtroom, they’re supposed to be somehow some kind of
controlled, stoic, tough - - but the fact is that jurors are human beings just like
everybody else.
And now we’re going to ask you to go even farther. We’re going to ask you to
consider between life and death for a man whose acts you despise and at the same
time try to be calm and collected about it.
Well, my message to you this morning is that it’s okay to be human about it . . . .
You can believe these feelings that I’ve commented to you and still keep on listening.
Keep on listening. Don’t stop listening.
. . . And if you keep listening in spite of these feelings that I really believe you have
and you had, even though it’s perhaps impossible to imagine what could justify not
executing John Wood, I would hope that you would find a reason to choose life - even for John Wood.

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And it is this reason for life that we will bring to you, this message that we hope you
will honestly, fairly, individually consider. For one thing, it’s your sworn duty to.
But, you know, that’s the easy way out. I’m doing this because it’s my sworn duty
is not really what I want to say to you. I want to say that because it’s a life, not
because you’re sworn that you have to but because it’s a life, and any life is worth
considering.
Your task, your journey is not over until each of you individually, honestly, fairly and
morally consider both the death penalty and life in prison without parole.
....
We will demonstrate to you that by your verdict two critical things have been
accomplished. The first thing that’s been accomplished is that the society is in fact
protected. Society is in fact protected. And the second critical point is that John
Wood is in fact harshly punished.
Are these reasons to consider a life sentence in a life or death situation? Is
extermination the only answer? Well, while death is an answer, I hope that you will
see in the next day or two that it’s not the only answer. And it is the answer of life
which we will bring to you, the alternative of life in prison without parole.
So while I stand before you and acknowledge your feelings that you must have, I tell
you that while death might feel right today, I hope that death will not necessarily feel
so right tomorrow.
(App. at 1850–53, 1859, ECF No. 42-7 at 90-93, 99.)
According to Wood, “[b]y unequivocally presenting life as the sentence for which he hoped,
but which he did not anticipate, and death as the obvious course of action, Mr. Mauldin improperly
took on the burden of proof as to the proper sentence and treated death as the presumptive verdict”
and, thus, “inflamed [the jury’s] passions and prejudices in a way that acquiesced to and even
facilitated the jurors’ bias against a life sentence.” (Traverse, ECF No. 150 at 40.) The State
contends that Mr. Mauldin’s statements were clearly a strategic effort to humanize himself, gain
credibility, and “more effectively persuade the jurors to consider a life sentence by acknowledging
their feelings of anger and resentment toward Wood.” (Return, ECF No. 137 at 98, 100.)
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The court finds that Wood has not met his burden of showing that Mr. Mauldin’s opening
statements to the jury were not a reasonable trial tactic. Further, even if Mr. Mauldin’s statements
were improper, any error does not rise to a constitutional level because, in the context of the whole
sentencing proceeding, Wood cannot show that he did not receive a fair trial or demonstrate a
reasonable probability that the jury would not have recommended death absent counsel’s alleged
errors.
As the Supreme Court has recognized, “[A]rguments of counsel generally carry less weight
with a jury than do instructions from the court.” Boyde v. California, 494 U.S. 370, 384 (1990).
“This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury,
but only that they are not to be judged as having the same force as an instruction from the court. And
the arguments of counsel, like the instructions of the court, must be judged in the context in which
they are made.” Id. at 384–85. Here, during the sentencing proceeding, the jury received accurate
instruction from the trial court on the applicable burden of proof twice. First, at the opening of the
penalty phase, the court informed the jury:
So our purpose in conducting this proceeding, in which we are now engaged, is to
determine whether the defendant, John Richard Wood, should be sentenced by the
court to death or to life imprisonment. With respect to your particular role in this
proceeding you will be asked to determine first whether the State has proved an
aggravating circumstance beyond a reasonable doubt. In this case the State asserts
under state law one aggravating circumstance.
The alleged circumstance of aggravation which South Carolina law recognizes as a
circumstance of aggravation is as follows: the murder of a federal, state or local law
enforcement officer, peace officer or former peace officer, corrections employee or
former corrections employee, or fireman or former fireman during or because of the
performance of his official duties.
Ladies and gentlemen, the State has the burden of proving that circumstance of
aggravation beyond a reasonable doubt. Any determination as to the presence of the
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alleged circumstances of aggravation must be unanimous. If you do not find that the
State has proved the aggravating circumstance beyond a reasonable doubt, you will
inform the court at that stage in your deliberations, and at that point your job will be
complete. This is so because a finding of an aggravating circumstance unanimously
and beyond a reasonable doubt is necessary before you can even consider death as a
possible punishment or life imprisonment as a possible punishment.
(App. at 1843–44, ECF No. 42-7 at 83–84.) And, during the jury charges at the end of the penalty
phase, the court repeatedly referenced and described the State’s burden. (See, e.g., App. at 2219,
2220, 2221, ECF No. 43-2 at 116 (“Moreover, a sentence of death must be based on proof, in your
judgment and assessment, beyond a reasonable doubt.”), 117 (“Ladies and gentlemen, in arriving at
your decision you must first determine from the evidence presented during the trial and during this
sentencing proceeding whether the alleged statutory aggravating circumstance existed beyond a
reasonable doubt at the time the victim, Eric Nicholson, was murdered by John Richard Wood.”),
118 (“Before you can impose a death sentence on defendant, all twelve of you must agree and find
beyond a reasonable doubt that the evidence in this case establishes that a statutory aggravating
circumstance exists. Unless you so find, you cannot sentence the defendant to death . . . .”)).
Further, in his penalty phase opening statement, the solicitor reiterated the trial judge’s
instructions. After describing aggravating circumstances in general and the particular one the State
relied on in this case, the solicitor told the jury:
Ladies and gentlemen, I submit to you that after hearing all the evidence and if you
find that Eric Nicholson - - if you find beyond a reasonable doubt that Eric Nicholson
was a law enforcement officer and was acting in his official duties at the time of his
murder, that is when you can consider the death penalty, and only then can you
consider the death penalty or any penalty.
(App. at 1849, ECF No. 42-7 at 89.)

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And, any lingering doubt about the burden of proof was quelled by trial counsel’s closing,
which directly addressed the State’s burden in overcoming the presumption of life:
I believe, and I believe what you’ll hear this judge tell you is that the sentencing
phase is an individualized assessment of what the proper penalty is for the person
who has been convicted. In other words, it is supposed to be crafted for the
individual defendant. That’s what the law says anyway. That’s why we’ve had this
hearing. If it wasn’t that way, if it really wasn’t that way, then the killing of a law
enforcement officer would be an automatic - - the penalty would be death, if what he
is saying is the law. But that ain’t the law. That’s not the way the law works, and he
knows it.
The death penalty is never required. I talked to you about that at jury selection. I
remind you of that now. You need to have respect for each other’s views. I submit,
in fact, that there is somewhat an inference to the very contrary of what the
government is now telling you, and that is a presumption of life. I want you to - don’t listen to me, and don’t listen to him. But listen to the judge when he tells you
what the law is.
Two points to that inference that I’ve mentioned. Two things he’ll say will tell you
exactly what I’m saying. He’s not going to say there is a presumption of life like he
did a presumption of innocence in the first trial. But two and two equal four. And,
listen. Number one, the government must prove the appropriateness of the death
penalty beyond a reasonable doubt. There is your presumption of a life sentence.
The burden is on the government to prove beyond a reasonable doubt that the death
penalty is the appropriate punishment. So I answer his bell ringing argument.
The second thing that points out the presumption of life is that all twelve have to sign
if you impose the death penalty. When we leave here, all twelve of you would have
signed the death penalty or the sentence will be life in prison. I mean, that’s the way
the law works.
(App. at 2199–201, ECF No. 43-2 at 96–98.) Given all of the information the jurors received
throughout the sentencing proceeding, it is unlikely any portion of Mr. Mauldin’s opening statement
misled them regarding the applicable burden of proof.
Wood argues that he was further prejudiced by the verdict forms the jury received at his trial.
Before retiring to deliberate, the jury was given four forms: (1) Unanimous Recommendation of

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Sentence for Death Penalty, (2) Unanimous Finding of an Aggravating Circumstance, (3) Unanimous
Recommendation of Sentence for Life Imprisonment, and (4) No Finding of Aggravating
Circumstance. (Attach. A to Traverse, ECF No. 150-1.) The first two of these forms included a line
for each juror to sign with his or her name printed beneath it, should he or she agree to the
recommendation or finding on that form. According to Wood, “[i]ncluding the juror’s names on the
form carried with it the unmistakable impression that the judge believed that the death penalty was
the correct punishment and expected the jury to recommend a sentence of death” and trial counsel
was, therefore, ineffective in failing to object to the forms. (Pet., ECF No. 85 at 28.)
Respondents counter that trial counsel were not deficient nor was there resulting prejudice
because the verdict forms directly follow the applicable statutory language and include an accurate
statement of the State’s burden of proof. (Reply, ECF No. 154 at 10–11.) The court agrees.
South Carolina Code section 16-3-20(C) states, in relevant part:
The jury, if its verdict is a recommendation of death, shall designate in writing, and
signed by all members of the jury, the statutory aggravating circumstance or
circumstances which it found beyond a reasonable doubt. The jury, if it does not
recommend death, after finding a statutory aggravating circumstance or
circumstances beyond a reasonable doubt, shall designate in writing, and signed by
all members of the jury, the statutory aggravating circumstance or circumstances it
found beyond a reasonable doubt.
...
If the jury has found a statutory aggravating circumstance or circumstances beyond
a reasonable doubt, the jury shall designate this finding, in writing, signed by all the
members of the jury. The jury shall not recommend the death penalty if the vote for
such penalty is not unanimous as provided.
S.C. Code Ann. § 16-3-20(C). Thus, if applicable, each member of the jury must sign the form
finding an aggravating circumstance. And, a recommendation of death must be unanimous. The

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verdict forms comply with these statutory directives. Further, the statute does not proscribe the
inclusion of signature lines for each juror on the verdict form recommending the death penalty.
Moreover, Wood has failed to show that the verdict forms, or counsel’s alleged error in not
objecting to them, resulted in any prejudice. Contrary to Wood’s contention, the trial judge
reiterated the State’s burden and expressly told the jury that he was not endorsing or advocating any
position when he described the forms during his jury charge:
Now let’s look at the next document. And this next document is entitled “No
Finding of Aggravating Circumstance.” If the jury is unable to conclude beyond a
reasonable doubt the existence of the alleged aggravating circumstance, then,
Madame Forelady, you would sign this particular form, date it and that would end
your deliberations.
Now let’s look at the next one. And we’re going to review each of these. And in
reviewing each of them, please don’t construe that I am saying one applies or one
doesn’t apply. I’m just reviewing them all so you’ll know the total charge and the
total options available to you.
Okay. The next one is the finding of the aggravating circumstance. It says, “We, the
jury, find beyond a reasonable doubt the following aggravating circumstance.” You
write in the circumstance, if you find it exists beyond a reasonable doubt, and each
juror then signs where indicated and it is dated.
All right. Let’s go to the next one. Now, the next one is the unanimous
recommendation of sentence for life imprisonment. “Having found beyond a
reasonable doubt the existence of the following statutory aggravating circumstance,”
again, write it out, and this says, “recommend to the court the defendant be sentenced
to life.” If this is ultimately your decision and all twelve agree, then, Madame
Forelady, you would sign where indicated and date it with the appropriate date.
Now let’s look at the last one. This is the unanimous recommendation for sentence
of sentence for death penalty. Again, the same lead in, “Having found the
aggravating circumstance,” and it must be listed, “now recommend to the court the
defendant be sentenced to death.” Again, a signature line for all twelve who are
deliberating and then a place for the date.

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Regardless of the sentence you decide to impose you must first determine whether
the State has proven beyond a reasonable doubt the alleged statutory aggravating
circumstance. Any decision you make must be unanimous.
In summary, you may impose the death penalty only if you unanimously find beyond
a reasonable doubt the existence of the alleged statutory aggravating circumstance
and you further unanimously find and agree beyond a reasonable doubt that the
sentence should be death.
(App. at 2226–28, ECF No. 43-2 at 123–125.) In addition, as noted in the above quoted section, the
forms themselves contain the correct standard of proof. (See ECF No. 150-1 at 1 (“We, the jury,
having found beyond a reasonable doubt the existence of the following statutory aggravating
circumstance . . .”), 2 (“We, the jury, find beyond a reasonable doubt the following statutory
aggravating circumstance . . .”)).
Thus, considering the entire sentencing proceeding, including the solicitor’s closing argument
(discussed in Ground Five), Wood has failed to show that any of counsel’s alleged errors in this
ground resulted in an unreliable sentence. Rather, it is clear from the record that the jury received
thorough and accurate instruction on the State’s burden of proof throughout the penalty phase, and
the court has no reason to doubt that it applied that standard in determining Wood’s sentence.
Accordingly, Wood has failed to demonstrate that the underlying ineffective assistance of counsel
claim for this ground has some merit, and Wood cannot rely on Martinez to overcome the procedural
default. The court, therefore, recommends granting summary judgment on Ground Seven.

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6.

Ground Ten

Wood presents Ground Ten as a freestanding Brady26 and Napue27 claim based on the State’s
alleged suppression of a SLED investigation into the plausibility of Ms. McCall’s claims that Wood
controlled the accelerator and back window switch throughout the Anderson County pursuit, and the
resulting presentation of false testimony.
It is undisputed that Ms. McCall was not present when Wood shot Officer Nicholson. She
did, however, pick up Wood in her Jeep Grand Cherokee Wagoneer after the shooting and drive him
on a high-speed chase through Anderson County. During the chase, Wood shot at the pursuing
officers and, when the police shot out the Wagoneer’s tires, Wood commandeered a utility truck at
gun-point, which he drove until he was shot by the police. The State indicted Ms. McCall for her
part in the crimes and, at the time of Wood’s trial, she was confined in the Anderson County
Detention Center awaiting her trial. Ms. McCall’s testimony offers background on her relationship
with Wood; reveals that she owned the gun, the motorcycle, and the car involved; and contains a
detailed account of her recollection of the events leading up to and after Wood shot Officer
Nicholson. (See App. at 1423–99, ECF No. 42-4 at 56–132.)
At issue in Ground Ten is Ms. McCall’s testimony at Wood’s Greenville County trial that
Wood forced her to drive the Wagoneer. Specifically, Ms. McCall testified that Wood “reached over
[her] with his foot and stomped [her] foot on the gas pedal,” and reached over her and pushed the
button to roll down the back window so he could shoot at the pursuing officers. (App. at 1441–43,

26

Brady v. Maryland, 373 U.S. 83 (1963).

27

Napue v. Illinois, 360 U.S. 264 (1959).
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ECF No. 42-4 at 74–76.) Ms. McCall also indicated that Wood “snatched the steering wheel several
times.” (App. at 1445, ECF No. 42-4 at 78.)
At the Anderson County trial, a SLED agent testified that he and another agent had
investigated Ms. McCall’s Jeep to assess whether “it was possible to . . . commandeer the vehicle
from the passenger seat” and “if you could control the driving, control the gas, control the brakes.”
(See Attach. B to Traverse, ECF No. 150-2 at 4.) The SLED agents concluded that it was not
possible to reach the accelerator from the passenger side due to the configuration of the car and that
to reach the rear window switch, a person would have to lie across the dashboard and the steering
wheel. (ECF No. 150-2 at 4, 6–8, 10.) That SLED investigation took place on December 15, 2000,
well before Wood’s Greenville County trial. (ECF No. 150-2 at 11.)
This claim was raised only in Wood’s second PCR action and is admittedly defaulted. (See
Pet., ECF No. 85 at 36.) To overcome the default, Wood appears to rely on Martinez. (See ECF No.
85 at 37; ECF No. 150 at 49 (“Petitioner’s trial counsel and PCR counsel failed to raise this claim
before the state courts, and it is therefore procedurally defaulted.”)). However, the ineffective
assistance of PCR counsel cannot serve as cause to overcome the procedural default of this
freestanding claim.
In Martinez, the Supreme Court stressed that its decision was one based on equitable
considerations rather than any constitutional right to the effective assistance of collateral counsel.
Martinez, 566 U.S. at 16. Accordingly, to appropriately balance the equitable considerations
discussed in Martinez with the “important interests served by state procedural rules at every stage
of the judicial process and the harm to the States that results when federal courts ignore these rules”
recognized in Coleman, 501 U.S. at 749, the Court narrowly defined the circumstances in which
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Martinez applies. The Court expressly declined to “extend [its holding] to attorney errors in any
proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective
assistance at trial, even though that initial-review collateral proceeding may be deficient for other
reasons.” Martinez, 566 U.S. at 16. And since the Martinez decision, the Court has declined to
extend Martinez to claims other than those alleging ineffective assistance of trial counsel. See
Davila v. Davis, 137 S. Ct. 2058, 2065 (2017) (“Petitioner asks us to extend Martinez to allow a
federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of
appellate counsel when a prisoner’s state postconviction counsel provides ineffective assistance by
failing to raise that claim. We decline to do so.”). Accordingly, Martinez is inapplicable to Wood’s
freestanding claims based on Brady or Napue.
Absent the Martinez exception, to show cause Wood must “show that some objective factor
external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.”
Murray v. Carrier, 477 U.S. 478, 488 (1986). In the context of a Brady claim, if the State concealed
material information and “that concealment, rather than tactical considerations, was the reason for
the failure of petitioner’s lawyers to” raise the claim in a timely manner, then petitioner has
established cause to excuse the procedural default. Strickler v. Greene, 527 U.S. 263, 288 (1999).
While Wood did not raise this exact claim in his PCR application, he did raise a claim of
ineffective assistance of trial counsel for failure to adequately impeach Ms. McCall. In responding
to questions about that claim at the PCR evidentiary hearing, Mr. Mauldin made clear his opinion
that impeaching Ms. McCall would not have improved Wood’s case. Mr. Mauldin recognized
discrepancies in Ms. McCall’s testimony:

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I believe pretty much her testimony was - - was generally self-serving about acts that
she - - the things that she did and the things that he did. In fact, I believe she said he
stepped over with his foot and pressed on the gas and that really - - that did not - - I
did not feel, as the person responsible for her cross-examination, that was something
that really needed to be dealt with in great detail. It was a person who was involved
in a very serious offense and was trying to make the jury think that she did not have
much to do with it. And whether or not they believed her really was not the point,
as far as I was concerned.
(App. at 2875, ECF No. 44-2 at 60.) But, his strategy was “not to necessarily trash Karen McCall
unless she had gotten on the witness stand and formulated some story that was completely
inconsistent with her written statement, or we had evidence that she was just blatantly lying to the
jury.” (App. at 3057, ECF No. 44-4 at 80.) And Mr. Mauldin did not think that Ms. McCall’s
testimony rose to that level. (App. at 3057–58, ECF No. 44-4 at 80–81 (“[I]t did not rise to that level.
It was, you know, she gave - - indicated, I guess you could best describe it, some of the details, but
the fact of the matter is that was not - - we did not believe that that would be a beneficial approach
to - - to defending John Wood in what happened out off Woodruff Road.”).)
The record does not indicate whether trial counsel knew of or possessed the SLED report at
issue in this claim. However, trial counsel were clearly aware of the Anderson County proceedings
and made a calculated decision to limit the evidence admitted from that case and to attempt to lessen
the impact of any evidence that made it in front of the jury. (See App. at 2892, ECF No. 44-2 at 77
(“I don’t recall exactly how much of the Anderson County information came out during the trial in
Greenville. We were attempting to limit that as much as we could.”); App. at 3258, ECF No. 44-6
at 21 (“Well, the strategy on what happened in Anderson was primarily, let’s get it out in the guilt
phase so that we can let the jury hear [sic] it would be very unlikely that all these witnesses will be
called back for the sentencing phase.”)). And, when specifically asked if he could have called

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Anderson County law enforcement officers to testify regarding discrepancies in Ms. McCall’s
account, Mr. Mauldin responded:
We could have called law enforcement officers as witnesses in our case if we had felt
like the distinction regarding what they were saying Ms. McCall did and what she
was saying she did would benefit our client.
....
I did not think that calling law enforcement officers to ask them whether they had
seen inside that Jeep was really going to help John Wood in his Greenville County
capital case involving Eric Nicholson. That’s all I recall. I can say there was - - it
would have been great risk. It - - there would have been a great risk in my opinion
calling a law enforcement officer to testify for John Wood in this case.
....
[F]rom an approach point of view, or from a theory point of view, I simply did not,
one, believe that that was consistent impeaching her and trying to show every
different little line and lie - - ....
. . . was really going to wind up - - was that the rewards for doing that were in our
view outweighed by the damages that we could do to ourselves.
(App. at 2889–90, ECF No. 44-2 at 74–75.) Wood has failed to show that these tactical
considerations would not have applied equally to the SLED investigation report regarding Ms.
McCall’s Jeep.
In addition, the record suggests that Ms. McCall was one of the few people assisting in trial
counsel’s mitigation investigation and information from interviews with Ms. McCall factored
heavily into Mr. Youngman’s and Dr. Schwartz-Watts’s penalty phase presentations. (See,
e.g., App. at 2067, 2079, 2084, ECF No. 43-1 at 90, 102, 107; App. at 1978, 1983, 1988–89, ECF
No. 42-8 at 84, 89, 94–95.) Thus, impeaching Ms. McCall during the guilt phase would not have

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served Wood well in the penalty phase—likely a weighty consideration in a case where the question
of guilt or innocence was subordinate to efforts to avoid the death penalty.
Moreover, Wood has not shown that he was prejudiced by the State’s alleged withholding
of this information or presentation of Ms. McCall’s testimony. To establish prejudice for his Brady
claim, Wood must show that “‘there is a reasonable probability’ that the result of the trial would
have been different if the suppressed documents had been disclosed to the defense.” Strickler, 527
U.S. at 289; see also Kyles v. Whitley, 514 U.S. 419, 433–44 (1995). Here, “[t]he question is not
whether the defendant would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict
worthy of confidence,” or whether “the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at
434–35. Similarly, under Napue, “[a] new trial is required if ‘the false testimony could . . . in any
reasonable likelihood have affected the judgment of the jury.’” Giglio v. United States, 405 U.S.
150, 154 (1972) (quoting Napue, 360 U.S. at 271)).
According to Wood, “[I]t is more than reasonably probable that had the jury believed Ms.
McCall was more culpable or that petitioner was not so ‘mean’ as to put the ‘innocent’ mother of
his child into harm’s way, it would have chosen a penalty other than death.” (Traverse, ECF No. 150
at 48.) However, impeaching Ms. McCall’s limited testimony about Wood forcing her to drive
would not have significantly altered the weight of the aggravating evidence that Wood shot and
killed Officer Nicholson, the relevant statutory aggravating circumstance; during the subsequent
chase, Wood shot at the pursuing police officers, injuring one of them; and, Wood car-jacked a truck

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at gunpoint.28 Thus, as the PCR court found, “[W]hether [Ms. McCall] was more of a participant
in the subsequent Anderson County pursuit does nothing to reduce [Wood’s] legal or moral guilt for
killing the trooper,” the key issue in Wood’s Greenville County trial. (App. at 3649, ECF No. 45-2
at 108.) Accordingly, Wood has failed to show that, given all of the other aggravating evidence, had
trial counsel possessed information tending to impeach this small portion of Ms. McCall’s testimony
and chosen to use it during trial, there is a reasonable probability or a reasonable likelihood the jury
would not have sentenced Wood to death.29 Thus, Wood has failed to show cause and prejudice to
excuse his default of this ground.
Wood requests authorization to conduct discovery on this ground for the purpose of proving
facts to establish cause and prejudice to excuse the procedural default. (See Traverse, ECF No. 150
at 49.) Specifically, Wood seeks “any documents, correspondence, or communication regarding any
experiments or other analysis related to McCall’s Jeep, McCall herself, her account of the events of
the crime, preparation of McCall’s testimony at petitioner’s trial, or any other issue related to

28

Further, as Respondents note, the SLED agent’s testimony at the Anderson County trial
does not directly contradict Ms. McCall’s Greenville County testimony. (See Reply, ECF No. 154
at 13.) At trial, Ms. McCall testified that Wood straddled the console and faced backwards to shoot
at the officers. (App. at 1442–43, ECF No. 42-4 at 75–76.) On cross-examination at the Anderson
County trial, Agent Donohue testified that the agents never attempted a reconstruction from that
position. (Attach. B to Traverse, ECF No. 150-2 at 17–18.)
29

In addition, while Ms. McCall’s testimony may have added to the State’s case, it did not
make it. Wood’s guilt or innocence did not depend on the jury finding Ms. McCall credible and her
credibility played no part in finding the statutory aggravating circumstance on which the jury based
its sentence. See United States v. Bagley, 473 U.S. 667, 690–91 (1985) (“The failure to disclose
evidence affecting the overall credibility of witnesses corrupts the process to some degree in all
instances, but when ‘the reliability of a given witness may well be determinative of guilt or
innocence,’ and when ‘the Government’s case depend[s] almost entirely on’ the testimony of a
certain witness, evidence of that witness’ possible bias simply may not be said to be irrelevant, or
its omission harmless.”) (quoting Giglio, 405 U.S. at 154).
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McCall’s credibility.” (ECF No. 150 at 49.) Respondents addressed this request in their response
to Wood’s motion for an evidentiary hearing, asserting that Wood is not entitled to discovery
because he has failed to show cause and prejudice for this ground. (See Resp. to Mot. for Evid. Hr’g,
ECF No. 153 at 7.) The court agrees.
Rule 6 of the Rules Governing Section 2254 cases in the United States District Courts allows
a judge, “for good cause,” to “authorize a party to conduct discovery under the Federal Rules of Civil
Procedure.” Good cause exists “when ‘specific allegations before the court show reason to believe
that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled
to relief.’” Wolfe v. Johnson, 565 F.3d 140, 165 n.3 (4th Cir. 2009) (quoting Bracy v. Gramley, 520
U.S. 899, 908-09 (1997)).
Wood’s specific allegations suggest that information existed that could have been used to
impeach one portion of Ms. McCall’s testimony and reduce her credibility. However, as discussed
above, even taking all of Wood’s allegations as true, he fails to show cause and prejudice to excuse
the default or that his claims, if proven, may entitle him to relief. The additional evidentiary support
Wood requests would not change this result. Accordingly, Wood has not shown good cause and the
court denies his discovery request.
E.

Petitioner’s Motion for an Evidentiary Hearing
Wood has moved for an evidentiary hearing and an opportunity to expand the record pursuant

to Rules 7 and 8 of the Rules Governing Section 2254 Cases and Martinez, to show that he can
overcome his procedural default of Grounds Four, Five, Seven, and Ten.30 (Mot. for Evid. Hr’g,
30

As noted in the beginning of the court’s discussion of Grounds Four and Five, Ground
Four, independently, is not properly before this court for habeas review. Thus, while Ground Four
is entwined with Ground Five, any evidentiary hearing or further factual development would actually
relate to Ground Five. Thus, the court omits Ground Four from its discussion of this motion.
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ECF No. 151; Reply in Supp. of Mot. for Evid. Hr’g, ECF No. 160 at 1.) Respondents oppose
Wood’s motion and argue that Martinez does not mandate an opportunity for additional fact finding
and that Wood has failed to show his Martinez grounds have some merit. (See Resp. to Pet.’s Mot.
for Evid. Hr’g, ECF No. 153.)
The “AEDPA generally prohibits federal habeas courts from granting evidentiary hearings
when applicants have failed to develop the factual bases for their claims in state courts.” Schriro v.
Landrigan, 550 U.S. 465, 473 n.1 (2007) (citing 28 U.S.C. § 2254(e)(2)). However, there are
circumstances in habeas matters in which expanding the record and granting an evidentiary hearing
are appropriate. As this court and others have recognized, a court may exercise its discretion to
expand the record when considering whether cause and prejudice excuse a petitioner’s defaulted
claim. Fielder, 2013 WL 593657, at *3 (citing Cristin v. Brennan, 281 F.3d 404, 416 (3d Cir.
2002)). Thus, where a petitioner relies on Martinez to show cause and prejudice, a court may find
additional evidentiary development necessary to adequately consider whether PCR counsel were
deficient and whether prejudice resulted from the errors. However, depending on the state court
record and the claim raised by the petitioner, it may not be necessary for a court to expand the record
because it may be clear that the petitioner cannot succeed in all elements of his Martinez claim.
Here, based on the record, the court has found that the underlying ineffective assistance of
counsel claims for Grounds Five and Seven are not substantial. Because these claims lack merit,
Wood is not entitled to further factual development. As Wood appears to admit, the only additional
relevant information for these record-based claims would be evidence of trial and PCR counsel’s
strategy. (See ECF No. 150 at 29, 45 (“To the extent there are issues of disputed material facts
regarding this claim that this Court must resolve (such as whether PCR counsel had any strategic
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reasons for failing to raise these claims and/or whether trial counsel had any strategic reasons for
failing to object at trial) petitioner requests an evidentiary hearing and moves for expansion of the
record for the purpose of proving facts to establish cause and prejudice to excuse his procedural
default.”)). However, even if Wood presented evidence that counsel’s strategic decisions were
entirely unreasonable, or that counsel did not have a strategic reason for his action or inaction, Wood
has still failed to show any resulting prejudice. Thus, Wood has failed to allege facts that, if proven,
would entitle him to relief. See Schriro, 550 U.S. at 474 (“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.”)
The burden is on the petitioner to show, in his federal filings, that his defaulted claims have
some merit. For this purpose and in accordance with Martinez, Juniper,31 and Gray,32 this court
appoints highly qualified, independent counsel and routinely allots time and resources for their
investigation and development of potential Martinez claims. In this case, Wood’s counsel filed his
petition, including the Martinez grounds, approximately nine months after commencing the federal
action. (See Initial Mots., ECF Nos. 1, 2 (filed Dec. 7, 2012); Order Appointing Counsel, ECF No.
16 (filed Dec. 18, 2012); Pet., ECF No. 85 (filed Sept. 19, 2013).) Along with the petition, Wood
filed a motion to stay his federal proceedings so he could pursue the unexhausted Martinez claims

31

Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013) (finding petitioner entitled to independent
counsel to investigate potential ineffective assistance of state counsel claims).
32

Gray v. Pearson, 526 F. App’x. 331 (4th Cir. 2013) (finding petitioner entitled to
independent counsel where, in order to identify potential Martinez claims, counsel would be required
in federal habeas proceeding to argue his own ineffectiveness in his representation of petitioner in
state post-conviction proceedings).
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in state court. (Mot. to Stay, ECF No. 86.) The court granted Wood’s motion and this action
remained stayed for almost four years. (See Order Granting Mot. to Stay, ECF No. 93 (filed Oct.
23, 2013); Order Lifting Stay, ECF No. 126 (filed Aug. 29, 2017, effective Oct. 2, 2017).) During
that time, Wood briefed and argued these claims, along with state court procedural issues.
(See Status Reports, ECF Nos. 100, 104, 110; Add’l Attachs. to Cnty. Ct. R., ECF Nos. 134–35.)
In addition, after this matter was unstayed and fully briefed, the court delayed its decision to allow
Wood to complete an ongoing investigation. Counsel have had ample opportunity to develop these
grounds.
Wood argues that “because factual development is necessary to prove ineffective assistance
of counsel, Martinez, would be a ‘dead letter’ without expansion of the record.” (ECF No. 160 at
3.) The court agrees that expansion of the record is sometimes appropriate, or even necessary, to
properly evaluate cause and prejudice of defaulted claims. But, only when a petitioner shows that
those claims are substantial. If extra-record evidence is needed, a petitioner may show substantiality
through attachments to his petition. See, e.g., Owens v. Stirling, 0:16-cv-02512, Am. Pet., ECF No.
117, Add’l Attachs., ECF Nos. 163, 176 (attaching twenty-one documents to the Amended Petition,
including affidavits regarding ineffective assistance of counsel claims, and adding evidentiary
support to the Amended Petition after the court lifted the stay). The court can then evaluate those
attachments under Rule 7 of the Rules Governing Section 2254 Cases and decide if the petitioner
has met his burden and if expansion of the record or an evidentiary hearing are warranted.
Here, Wood has not included any evidentiary support, leaving the court with only the record
and unsupported allegations. This is not enough to show that Wood may be able to overcome the

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default with further factual development. Accordingly, the court denies Wood’s motion to expand
the record and for an evidentiary hearing as to Ground Five and Ground Seven.33
As to Wood’s freestanding Brady and Napue claims in Ground Ten, the court grants Wood’s
request to expand the record to the limited extent that it has considered Agent Donohue’s testimony.
However, having found that Wood has failed to show the materiality of the contested report and
testimony, the court denies Wood’s motion to further expand the record for Ground Ten.
ORDER AND RECOMMENDATION
The court GRANTS Wood’s motion to enlarge the record with respect to Agent Donohue’s
testimony, but DENIES his motion for an evidentiary hearing and to enlarge the record on Grounds
33

The court notes that its reasoning here is in line with the Fifth Circuit’s recent decisions.
In Segundo v. Davis, 831 F.3d 345 (5th Cir. 2016), the Fifth Circuit found that the district court did
not abuse its discretion in declining to hold an evidentiary hearing where the petitioner failed to
make either showing required under Martinez. The Fifth Circuit reasoned that “Martinez and
Trevino protect [] habeas petitioners from completely forfeiting an [ineffective assistance of counsel]
claim; neither entitles petitioners to an evidentiary hearing in federal court in order to develop such
a claim.” Id. at 351. “Reading Martinez to create an affirmative right to an evidentiary hearing
would effectively guarantee a hearing for every petitioner who raises an unexhausted [ineffective
assistance of counsel] claim and argues that Martinez applies.” Id. Thus, to grant an evidentiary
hearing, “there ‘must be a viable constitutional claim, not a meritless one, and not simply a search
for evidence that is supplemental to evidence already presented.’” Id. (quoting Ayestas v. Stephens,
817 F.3d 888, 896 (5th Cir. 2016) (per curiam), vacated on other grounds by Ayestas v. Davis, 138
S.Ct. 1080 (2018)). As Wood notes, for the claim at issue in Segundo, the district court had the
benefit of a fairly developed record. Thus, Wood asserts that his case is more akin to Washington
v. Davis, 2017 WL 6523437 (5th Cir. Dec. 20, 2017), where the Fifth Circuit vacated the district
court’s denial of an evidentiary hearing where there had never been a state hearing on the issue and
the petitioner had not had a reasonable opportunity to discover the information before filing his
federal petition. However, here, Wood’s claims are entirely record-based, unlike Segundo’s
intellectual disability and Washington’s insufficient mitigation investigation claims, which clearly
required extra-record evidence. Further, in Washington, the district court did not evaluate the record
and did not find that there was sufficient evidence in the record to deny Washington’s claim. Id. at
*5. And, the Fifth Circuit found that Washington’s ineffective assistance of counsel claims were at
least debatable. Id. In this case, the court has conducted a thorough review of the record and found
that the evidence in the record sufficiently demonstrates that Wood’s ineffective assistance of
counsel claims lack merit.
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Four, Five, Seven, and Ten. Further, the court DENIES Wood’s motion for discovery on Ground
Ten. In addition, for the reasons stated herein, the court recommends granting Respondents’ motion
for summary judgment (ECF No. 136) and dismissing Wood’s petition (ECF No. 85).

____________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
October 1, 2018
Columbia, South Carolina

The parties’ attention is directed to the important notice on the next page.

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Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and
Recommendation with the District Judge. Objections must specifically identify the portions of the
Report and Recommendation to which objections are made and the basis for such objections. “[I]n
the absence of a timely filed objection, a district court need not conduct a de novo review, but instead
must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
Specific written objections must be filed within fourteen (14) days of the date of service of
this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ.
P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by
mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation
will result in waiver of the right to appeal from a judgment of the District Court based upon
such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

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