Wood v. Byars

Filing 200

ORDER RULING ON REPORT AND RECOMMENDATION for 136 Motion for Summary Judgment, filed by William R Byars, Jr, 190 Order,,, Report and Recommendation,,, Terminate Motions. The court ADOPTS the R&R, GRANTS the respondents ' motion for summary judgment, DENIES Wood's petition for writ of habeas corpus, and GRANTS in part and DENIES in part Wood's motion for further factual development, in accordance with the R&R. Signed by Honorable David C Norton on 9/9/2019. (jbry, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
JOHN R. WOOD,

)
)
Petitioner,
)
)
vs.
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BRYAN P. STIRLING, Commissioner,
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South Carolina Department of Corrections; )
and WILLIE D. DAVIS, Warden, Kirkland )
Reception and Evaluation Center,
)
)
Respondents.
)
____________________________________)

No. 0:12-cv-3532-DCN
OPINION AND ORDER

Petitioner John R. Wood (“Wood”) is a death row inmate in the custody of the
South Carolina Department of Corrections (“SCDC”). He filed a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 on September 19, 2013. This matter is before the court for
consideration of Wood’s objections to the Report and Recommendation (“R&R”) of
United States Magistrate Judge Paige J. Gossett, who recommends granting respondents’
motion for summary judgment and granting in part and denying in part Wood’s motion
for an evidentiary hearing and to expand the record. For the reasons stated below, the
court adopts the R&R, grants the respondents’ motion for summary judgment, and grants
in part and denies in part Wood’s motion for further factual development.
I. BACKGROUND AND PROCEDURAL HISTORY
Wood was convicted by a jury and sentenced to death for the murder of Trooper
Eric Nicholson (“Nicholson”). The R&R ably recites the facts of this case, as
summarized by the Supreme Court of South Carolina. In short, Wood was driving a
moped on I-85 in the Greenville area, and Nicholson informed the dispatcher that he was

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going to pull Wood over. Several witnesses observed the moped, followed by a trooper
with activated lights and sirens, take the off-ramp to leave the interstate and turn right
onto a frontage road. Nicholson sped up to drive alongside the moped and then veered to
the left and stopped at a raised median to block the moped’s path. The moped came to a
stop close to the driver’s side window of Nicholson’s car.
Upon stopping, Wood stood up over the moped, fired several shots in the driver’s
side window, turned the moped around, and fled. Officers heard Nicholson scream on
the radio, went to the scene, and found that Nicholson had been shot five times. Both of
Nicholson’s pistols were secured in their holsters, and eight shell casings were found at
the scene. While fleeing, Wood drove into a parking lot and jumped into the passenger’s
seat of a Jeep. The police began pursuing the Jeep, and Wood opened fired on the
officers. One officer was struck in the face by a bullet fragment, but he survived the
injury. Wood then abandoned the Jeep and hijacked a truck but was eventually stopped
and taken into custody.
Wood was indicted in May 2001 in Greenville County for murder and possession
of a weapon during the commission of a violent crime. ECF No. 45-3 at 74. At trial,
Wood was represented by attorneys John I. Mauldin, James Bannister, and Rodney
Richey (referred to collectively or individually as “trial counsel”). On February 11, 2002,
the jury found Wood guilty of both charges and recommended a death sentence on the
murder charge, finding the aggravating factor of murdering a state law enforcement
officer during the performance of his official duties. ECF Nos. 42-7 at 20; 43-3 at 25–27.
On February 16, 2002, the state circuit court sentenced Wood to death. ECF No. 43-3 at
30.

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Wood appealed his case to the Supreme Court of South Carolina. On December
6, 2004, the Supreme Court of South Carolina affirmed Wood’s convictions and
sentence. ECF No. 43-5 at 107. Wood petitioned for rehearing, which the court denied
on January 20, 2005. ECF No. 43-5 at 108. Then on July 28, 2005, Wood filed a pro se
application for post-conviction relief (“PCR”). ECF No. 43-5 at 112. The PCR court
appointed attorneys to handle Wood’s PCR proceeding. On February 9, 2007, Wood
filed an amended PCR application. ECF No. 40-15. The PCR court held an evidentiary
hearing from March 6–8, 2007, ECF Nos. 44-1 at 34 through 44-7 at 8, and on December
19, 2007, the PCR court dismissed Wood’s application, ECF Nos. 45-2 at 92 through 453 at 73. Wood filed a motion to reconsider, which the PCR court denied. ECF No. 45-4
at 21, 55. Wood then filed a petition for writ certiorari with the Supreme Court of South
Carolina. ECF No. 40-6. After the petition was fully briefed, the Supreme Court of
South Carolina denied Wood’s petition on November 2, 2012, ECF No. 40-16, and issued
a remittitur on November 26, 2012, ECF No. 40-8.
On December 7, 2012, Wood commenced this action by filing a motion for stay
of execution and a motion to appoint counsel. ECF No. 1. Wood then filed his petition
for writ of habeas corpus under § 2254 on September 19, 2013. ECF No. 85. Wood
contemporaneously filed a motion to stay his habeas proceeding while he pursued his
unexhausted claims in state court. ECF No. 86. The court granted the motion to stay on
October 23, 2013. ECF No. 93.
On September 26, 2013, Wood filed a second PCR application in state court.
ECF No. 134-1. On July 19, 2016, the PCR court dismissed the application as untimely
and improperly successive under state law. ECF No. 135-1. Wood moved to alter or

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amend the court’s order, ECF No. 135-2, and the PCR court denied that motion on
August 3, 2017, ECF No. 135-3. This ended Wood’s state court proceedings, and the
court lifted the stay in Wood’s habeas proceeding on August 29, 2017. ECF No. 126.
Respondents filed their motion for summary judgment on November 2, 2017.
ECF No. 136. Wood filed his response and traverse on December 17, 2017, ECF No.
150, and respondents replied on January 7, 2018, ECF No. 154. In addition, on
December 17, 2017, Wood filed a motion for an evidentiary hearing and an opportunity
to expand the record with respect to Grounds Four, Five, Seven, and Ten. ECF No. 151.
Respondents responded on January 2, 2018, ECF No. 153, and Wood replied on January
16, 2018, ECF No. 160. On October 1, 2018, the magistrate judge issued her report
recommending that respondents’ motion for summary judgment be granted and her order
granting in part and denying in part Wood’s motion for an evidentiary hearing and
expansion of the record. 1 Wood filed timely objections to the R&R and order on
November 14, 2018. ECF No. 193. Respondents replied to Wood’s objections on
November 28, 2018. ECF No. 194. Wood’s claims are now ripe for resolution.
II. STANDARDS
A. Magistrate Judge Review
1. R&R
The magistrate judge makes only a recommendation to the court. Mathews v.
Weber, 423 U.S. 261, 270 (1976). The recommendation carries no presumptive weight,

1

The R&R granted in part Wood’s motion for further factual development because the
R&R considered the testimony of SLED agent Gene Donohue, which was not part of the
state record and was attached to Wood’s traverse. Donohue’s testimony was provided in
the case State v. John Richard Wood and Karen Pittman McCall, which was a separate
trial that took place in Anderson County. ECF Nos. 150 at 46; 150-2.
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and the responsibility to make a final determination remains with the court. Id. at 270-71.
The court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge . . . or recommit the matter to the
magistrate judge with instructions.” 28 U.S.C. § 636(b)(1). The court is charged with
making a de novo determination of any portion of the R&R to which a specific objection
is made. Id. When a party’s objections are directed to strictly legal issues “and no
factual issues are challenged, de novo review of the record may be dispensed with.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (citation omitted). Analogously, de
novo review is unnecessary when a party makes general and conclusory objections
without directing a court’s attention to a specific error in the magistrate judge’s proposed
findings. Id.
2. Order
Magistrate judges have “the authority to hear and determine any pretrial matter
pending before the court” except for dispositive motions. United States v. Benton, 523
F.3d 424, 430 (4th Cir. 2008). A party may object to a magistrate judge’s order on a
nondispositive matter within 14 days of service of the order. Fed. R. Civ. P. 72(a). The
district court reviews such orders for clear error. 28 U.S.C. § 636(b)(1)(A); Springs v.
Ally Fin. Inc., 657 F. App’x 148, 152 (4th Cir. 2016).
B. Summary Judgment
Summary judgment shall be granted if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). “By its very terms, this standard provides that the mere existence of some

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alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id. “[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. The court should view the evidence in the light most
favorable to the non-moving party and draw all inferences in its favor. Id. at 255.
C. Habeas Corpus
1. Standard for Relief
This court’s review of Wood’s petition is governed by 28 U.S.C. § 2254, which
was amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996,
Pub. L. No. 104-132, 110 Stat. 1213. See Lindh v. Murphy, 521 U.S. 320 (1997).
Section 2254(a) provides federal habeas jurisdiction for the limited purpose of
establishing whether a person is “in custody in violation of the Constitution or laws or
treaties of the United States.” This power to grant relief is limited by § 2254(d), which
provides as follows:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim –

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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d). The “contrary to” and “unreasonable application” clauses contained
in § 2254(d)(1) are to be given independent meaning—in other words, a petitioner may
be entitled to habeas corpus relief if the state court adjudication was either contrary to or
an unreasonable application of clearly established federal law.
A state court decision can be “contrary to” clearly established federal law in two
ways: (1) “if the state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law,” or (2) “if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent and arrives at a
result opposite to [the Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405 (2000)
(plurality opinion). Section 2254(d)(1) restricts the source of clearly established law to
holdings of the Supreme Court as of the time of the relevant state court decision. See id.
at 412; see also Frazer v. South Carolina, 430 F.3d 696, 703 (4th Cir. 2005).
With regard to “unreasonable” application of the law, a state court decision can
also involve an “unreasonable application” of clearly established federal law in two ways:
(1) “if the state court identifies the correct governing legal rule from [the Supreme
Court’s] cases but unreasonably applies it to the facts of the particular state prisoner’s
case,” or (2) “if the state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.” Williams, 529
U.S. at 407.

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It is important to note that “an unreasonable application of federal law is
different from an incorrect application of federal law,” and that “a federal habeas court
may not issue the writ simply because that court concludes in its independent judgment
that the relevant state-court decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be unreasonable.” Id. at 410–11
(emphasis in original). Indeed, “an ‘unreasonable application of federal law is different
from an incorrect application of federal law,’ because an incorrect application of federal
law is not, in all instances, objectively unreasonable.” Humphries v. Ozmint, 397 F.3d
206, 216 (4th Cir. 2005) (quoting Williams, 529 U.S. at 410).
2. Procedural Default
A petitioner seeking habeas relief under § 2254 may only do so once the
petitioner has exhausted all remedies available in state court. 28 U.S.C. § 2254(b)(1)(A).
“To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim
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).
Under the doctrine of procedural default, “a federal court will not review the merits of
claims, including constitutional claims, that a state court declined to hear because the
prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9
(2012); see also Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008) (explaining that
generally “[f]ederal habeas review of a state prisoner’s claims that are procedurally
defaulted under independent and adequate state procedural rules is barred.”).
However, “[t]he doctrine barring procedurally defaulted claims from being heard
is not without exceptions.” Martinez, 566 U.S. at 10. One such exception occurs when a

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prisoner seeking federal review of a defaulted claim can show cause for the default and
prejudice from a violation of federal law. Id. “Inadequate assistance of counsel at initialreview collateral proceedings may establish cause for a prisoner’s procedural default of a
claim of ineffective assistance at trial.” Id. at 10. In order to establish such cause, the
following elements must be established:
(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-trial-counsel claim”; and (4) state
law requires that an “ineffective assistance of trial counsel [claim] . . . be
raised in an initial-review collateral proceeding.”
Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 14, 17–18).
A claim is “substantial” if it has “some merit.” Martinez, 566 U.S. at 14.
D. Ineffective Assistance of Counsel
A petitioner asserting ineffective assistance of counsel must demonstrate that (1)
his counsel’s performance was deficient, and (2) the deficient performance prejudiced the
petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s performance
is deficient when “counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. In assessing counsel’s performance, “a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. “Judicial scrutiny of counsel’s performance must be
highly deferential[,] and “[a] fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id.

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To establish prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. When considering prejudice in the
context of a death penalty case, “the question is whether there is a reasonable probability
that, absent the errors, the sentencer—including an appellate court, to the extent it
independently reweighs the evidence—would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.” Id. at 695.
Because “[s]urmounting Strickland’s high bar is never an easy task,” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010), “[e]stablishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more difficult,” Harrington v.
Richter, 562 U.S. 86, 105 (2011). The Supreme Court has explained that “[t]he standards
created by Strickland and § 2254(d) are both ‘highly deferential.’” Id. (quoting
Strickland, 466 at 689). Therefore, a court’s review of an ineffective assistance counsel
claim under the § 2254(d)(1) standard is “doubly deferential.” Knowles v. Mirzayance,
556 U.S. 111, 123 (2009).
III. DISCUSSION
Wood raises two general objections to the R&R and various specific objections to
Grounds Three, Four, and Five.
A. General Objections
Wood makes two “general objections” to the R&R. Objections must be
“sufficiently specific to focus the district court’s attention on the factual and legal issues
that are truly in dispute.” Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003) (quoting

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United States v. 2121 E. 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996)). Although
Wood labels his initial objections as “general,” the court finds that they are specific
enough to warrant review.
1. Standard of Review
Wood first objects to the standard of review employed by the R&R. He argues
that the R&R’s discussion of Harrington v. Richter, 562 U.S. 86 (2011), erroneously
suggests that the standard of review enunciated in Richter should apply to all § 2254(d)
cases.
After discussing the general principles of the § 2254 standard of review, the R&R
notes that “review of a state court decision under the AEDPA standard does not require
an opinion from the state court explaining its reasoning.” ECF No. 190 at 22 (citing
Richter, 562 U.S at 98). The R&R went on to explain that
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)).
ECF No. 190 at 23. 2 Wood argues that the R&R’s explanation of this law suggests that
the magistrate judge believes that the Richter standard should apply in all § 2254(d)
cases, as opposed to just in cases in which there are state court decision or decisions
containing no reasoning. Wood contends that Richter does not apply here because while

2

The “id.” citations in this paragraph refer to Wilson v. Sellers, 138 S.Ct. 1188 (2018);
however, this law and accompanying quotes are found in Richter, 562 U.S. at 102–03.
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the Supreme Court of South Carolina’s denial of certiorari contained no reasoning, the
PCR court did provide its reasoning in 94-page order. Wood explains that Wilson v.
Sellers, 138 S. Ct. 1188 (2018), addressed this exact point, namely that the Richter
standard should only apply in cases in which no reasoned state court decision exists.
Wood’s description of the state of the law on this issue is accurate. In Wilson, the
Supreme Court considered whether federal habeas law should use the “look through”
approach as opposed to a “could have supported” approach when a higher court affirms
or denies the lower court decision without providing its reasoning. 138 S. Ct. at 1193.
The “look through” approach involves the federal court assuming that the summary
higher court opinion rested on the grounds given in a lower court opinion, while the
“could have supported” approach requires the federal court to identify the bases that it
believed reasonably could have supported the higher court opinion. Id. The Supreme
Court held that generally “federal habeas law employs a ‘look through’ presumption.”
Id.
In squaring this holding with Richter, the Court first explained that Richter “did
not directly concern the issue before” the court because there was no lower court opinion
to which a court could look through. In Richter, the defendant brought his federal
constitutional claim for the first time in the California Supreme Court, as permitted by
state law, and the California Supreme Court summarily denied Richter’s petition.
Therefore, in Richter, the court had to use the “could have supported approach” because
there was no reasoned state court opinion. Next, the court clarified that Richter still
contemplated the possibility of applying Ylst v. Nunnemaker, 501 U.S. 797 (1991), a
case in which the Court employed the “look through” approach, suggesting that Richter

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did not abolish the “look through” approach. Finally, the Court explicitly rejected the
principle that “Richter’s ‘could have supported’ framework [should] apply even where
there is a reasoned decision by a lower state court.” Id. at 1195. In sum, a federal court
should only use the “could have supported” framework articulated in Ritcher when there
is a higher court opinion with an unexplained decision on the merits and no lower court
opinion to which the court can “look through.”
While Wood’s explanation of the law is correct, he fails to explain how the R&R
misapplied the law. He only points to one portion of the R&R in which he argues that the
magistrate judge misapplied this standard. Wood contends that the R&R’s finding about
trial counsel’s performance contradicts the PCR court’s finding that trial counsel was
deficient for failing to object to inadmissible prison condition testimony. Wood argues
that this suggests that the R&R did not “look through” to the PCR court’s reasoning but
instead substituted its own reasoning based on the “could have supported” approach.
The portion of the R&R cited by Wood discusses whether one of the arguments in
Ground Five had been procedurally defaulted. The argument was that trial counsel’s
failure to object to the Solicitor’s reference to evidence about general prison conditions
during his closing argument constituted ineffective assistance of counsel. This claim was
not raised in Wood’s first PCR application that was considered on the merits but was
raised in his second PCR application, which was dismissed as untimely and improperly
successive, meaning that the claim is procedurally defaulted. In order to excuse the
procedural default under Martinez, Wood must show that his underlying ineffective
assistance of counsel claim—that trial counsel’s failure to object to the Solicitor’s closing
argument constitutes ineffective assistance of counsel—is substantial. This requires

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Wood to show that trial counsel’s failure to object constitutes deficient performance, and
that the deficient performance prejudiced Wood. In considering whether trial counsel’s
performance was deficient, the R&R stated that:
In its discussion above regarding Ground Three, this court determined that
the PCR court did not unreasonably err in its consideration of this standard
[regarding the admissibility of prison conditions] 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.
ECF No. 190 at 51.
Wood takes issue with the R&R’s description of Ground Three regarding trial
counsel’s performance and its application to Ground Five. In Ground Three, Wood
alleged that his trial counsel was ineffective for failing to object to evidence of general
prison conditions. That claim was raised in Wood’s first PCR application and was
therefore considered by the PCR court. The PCR court concluded that trial counsel was
deficient for failing to object to this evidence, but that the deficient performance did not
prejudice Wood. Wood argues that this finding contradicts the R&R’s conclusions that
“Wood has not shown that the evidence of conditions of confinement presented during
the sentencing phase was impermissible” and that “the court cannot find that the
solicitor’s comments on this topic in his closing statement were based on inadmissible
evidence.” Id.
However, the problem with Wood’s argument is that the PCR court made no
specific findings about why trial counsel was deficient for failing to object to the
evidence. Instead, the PCR court summarily concluded that “counsel were [sic] deficient
for not objecting to the evidence.” ECF No. 45-3 at 70. The PCR court provided no
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reasoning as to why trial counsel was deficient for failing to object. The PCR court’s
earlier discussion about South Carolina law regarding the impropriety of evidence of
conditions of confinement, which is discussed in greater detail below, suggests that the
PCR court relied on that law in finding trial counsel deficient. But the PCR court did not
explicitly find that the evidence of conditions of confinement was inadmissible or
impermissible. 3 As such, the R&R did not contradict the PCR opinion when it concluded
that “Wood has not shown that the evidence of conditions of confinement presented
during the sentencing phase was impermissible” and that the R&R could not “find that
the solicitor’s comments on this topic in his closing statement were based on inadmissible
evidence.” ECF No. 190 at 51.
As mentioned above, Wood fails to direct to the court’s attention to any other
portion of the R&R in which the magistrate judge allegedly misapplied the standard of
review. Moreover, a review of the R&R indicates that the R&R did apply the correct
standard of review when applicable, namely, when a claim was raised in Wood’s first
PCR application and the PCR court considered the claim in its opinion. For example, in
Ground Three, the R&R does consider the reasoning of the PCR court and cites to the
PCR opinion, indicating that the R&R “looked through” the summary Supreme Court of
South Carolina denial of certiorari to the PCR court opinion. See ECF No. 190 at 33–37.

3

Indeed, as the PCR court acknowledged, all but one of the South Carolina cases
specifically opining on the admissibility of this evidence were not decided until after
Wood’s trial took place. ECF No. 45-3 at 62 (“The reason this issue [about evidence on
general prison conditions] is problematic stems from four South Carolina cases—one that
was in existence prior to this case and three that were handed down after [Wood]’s
trial.”). It is unclear to what extent the PCR court relied on the cases decided after
Wood’s trial and whether they played a role in the PCR court’s holding that trial counsel
was deficient for failing to object to the evidence because the PCR court simply does not
provide reasoning for its conclusion.
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The R&R explicitly said it was doing so. Id. at 30 (“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.”). The same is true
for the claim in Ground Five that was raised in Wood’s first PCR application about
references to prison hierarchy in the Solicitor’s closing argument. In considering this
claim, the R&R summarized the PCR’s decision and analyzed its reasoning. Id. at 41–42.
However, many of Wood’s claims were not raised until his second PCR
application. See, e.g., ECF No. 190 at 43 (“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.”); id. at 72 (“Ground Seven was raised only in the second PCR
proceeding and is, therefore, exhausted but defaulted.”). Because Wood’s second PCR
application was dismissed as untimely and improperly successive, the PCR court did not
consider the claims in that application on the merits. Therefore, with regard to the newly
raised claims, the magistrate judge could not “look through” to the PCR court’s opinion
because there is no PCR court opinion that considered the claims. Instead, the R&R
determined that the claims were procedurally defaulted and conducted an analysis to see
if the procedural default should be excused under Martinez. In that analysis, the standard
of review discussed here is inapplicable. In sum, the court finds that the R&R did not
improperly apply the standard of review.

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2. Evidentiary hearing
Wood also generally objects to the magistrate judge’s order denying Wood’s
request for an evidentiary hearing. Wood filed a motion for an evidentiary hearing and
an opportunity to expand the record with respect to Grounds Four, Five, Seven, and Ten.
These grounds contain procedurally barred claims, and Wood sought an evidentiary
hearing and record expansion to prove facts that establish cause and prejudice to excuse
the procedural default. As a reminder, because the magistrate judge issued an order on
this motion, as opposed to a R&R, the court reviews the order only for clear error. 28
U.S.C. § 636(b)(1)(A).
Section 2254(e) “generally bars evidentiary hearings in federal habeas
proceedings initiated by state prisoners.” McQuiggin v. Perkins, 569 U.S. 383, 395
(2013); see also 28 U.S.C. § 2254(e)(2) (“If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing
on the claim unless” certain conditions apply). It is within a district court’s discretion to
permit an evidentiary hearing so that a petitioner can establish cause and prejudice to
excuse his procedural default. Cristin v. Brennan, 281 F.3d 404, 417 (3d Cir. 2002). “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.” Schriro v. Landrigan,
550 U.S. 465, 474 (2007); see also Fielder v. Stevenson, 2013 WL 593657, at *3 (D.S.C.
Feb. 14, 2013) (“In determining whether to expand the record, a federal court must
consider whether doing so would enable an applicant to prove the petition’s factual
allegations, which, if true, would entitle the applicant to federal habeas relief.”).

17

Wood argues that the R&R erred by inconsistently denying his request for an
evidentiary hearing and then faulting Wood for failing to offer evidence outside of the
record to prove his claims. Wood cites to various portions of the R&R in which the
magistrate judge faulted him for failing to offer evidence. The court will discuss each
portion in turn.
As for Ground Four, Wood cites to the portion of the R&R that found that
Wood’s claim was procedurally barred absent a showing of cause and prejudice. See
ECF No. 193 at 3 (citing ECF No. 190 at 37). The R&R correctly noted that Ground
Four is procedurally defaulted, and that because Ground Four is not an ineffective
assistance of counsel claim, Wood cannot use Martinez to excuse its procedural default.
See Martinez, 566 U.S. at 9 (“recognizing a narrow exception” to procedural default
where “[i]nadequate assistance of counsel at initial-review collateral proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective assistance at
trial.”). As such, in order to excuse the procedural default of Ground Four, Wood must
show cause for the procedural default, which must be that an “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). Wood seeks an evidentiary hearing to
establish cause, but the issue is that Wood has not even alleged a cause for the procedural
default of Ground Four. He only discussed Martinez and the effectiveness of PCR
counsel to excuse procedural default, but as discussed above, the procedural default of
Ground Four cannot be excused by Martinez. Indeed, the R&R faulted Wood for “failing
to express[ ] any particular cause of his default.” ECF No. 190 at 38. Wood is not
entitled to an evidentiary hearing simply because his claim is procedurally defaulted.

18

Instead, he must allege facts as to the cause of his default that, if proven true, would
entitle him to habeas relief. Schriro, 550 U.S. at 474. Because Wood did not do so, the
R&R did not clearly err by denying an evidentiary hearing to excuse the procedural
default of Ground Four.
For Ground Five, Wood cites to a portion of the R&R in which the R&R held that
Wood did not offer any evidence regarding trial counsel’s decision to not object to a
portion of the Solicitor’s closing argument. See ECF No. 193 at 3 (citing ECF No. 190 at
52, 53, 57, 58). Similarly, for Ground Seven, Wood cited to the portion of the R&R that
concluded that Wood did not show that trial counsel’s opening statement was not a
reasonable trial tactic. See id. (citing ECF No. 190 at 76). These portions of the R&R
provided the reasoning for the R&R’s conclusion that Wood was unable to show that trial
counsel’s performance was deficient. With Wood unable to show that trial counsel’s
performance was deficient, the R&R found that Wood could not establish substantial
ineffective assistance of counsel claims, and as a result the claims’ procedural default
could not be excused.
Wood argues that an evidentiary hearing is warranted for this precise reason—to
determine why trial counsel made these decisions and whether that decision-making
rendered trial counsel’s performance deficient. However, the R&R clarified that even if
Wood presented evidence about trial counsel’s decision on both of these grounds to show
that their performance was deficient, Wood has still failed the second prong of an
ineffective assistance of counsel claim by failing to show any resulting prejudice. As
such, the R&R concluded, Wood failed to show that his underlying ineffective assistance
of counsel claims are substantial because he has not alleged facts that, if proven true at an

19

evidentiary hearing, would prove an ineffective assistance of counsel claim and entitle
him to habeas relief. Therefore, the R&R denied Wood’s request for an evidentiary
hearing.
The court finds no clear error in this conclusion. In both Grounds Five and
Seven, Wood failed to explain how his trial counsel’s performance prejudiced him. In
Ground Five, Wood argued that he was prejudiced by all of the alleged improper
comments in the Solicitor’s closing argument, and that the jury’s lengthy deliberations
indicate that the case was close. ECF No. 150 at 25–26. However, as discussed in
greater detail below, Strickland’s requirement of prejudice involves showing that “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. Wood has made no mention of the balancing of the
aggravating and mitigating circumstances, and as such, he failed to show prejudice. As
for Ground Seven, Wood simply asserted that “[t]rial counsel’s improper opening
statement and subsequent failure to object to Solicitor Ariail’s argument in summation
and the improper juror forms were unreasonable and prejudicial.” ECF No. 150 at 42.
Alleging prejudice in such a conclusory manner is insufficient to establish a substantial
ineffective assistance of counsel claim. As such, the court finds that Wood did not
sufficiently allege facts to show that he was prejudiced by trial counsel’s performance,
which would establish an ineffective assistance of counsel claim and entitle him to
habeas relief. The court finds no clear error in the R&R’s denial of an evidentiary
hearing on these claims.

20

Wood does not cite to any portions of the R&R discussing Ground Ten in arguing
that the R&R faulted him for failing to provide evidence. Wood’s final citation, ECF No.
190 at 92, cites to a portion of the R&R in which the magistrate judge explains that Wood
could have provided evidentiary support through affidavits attached to his petition to
show that his default should be excused, but that Wood failed to do so. The court finds
no clear error with this conclusion
B. Specific Objections
Wood also brings several specific objections with regards to the R&R’s reasoning
and conclusions on Grounds Three, Four, and Five. The court addresses each in turn.
a. Ground Three
In Ground Three, Wood alleges that his trial counsel was ineffective for failing to
object to the introduction of evidence about conditions of confinement during the
sentencing phase of his trial. In order to track the procedural history of this claim and the
various decisions on it, the court will first review the evidence related to this issue that
was presented at trial. The court will then summarize the PCR court’s consideration of
Wood’s ineffective assistance of counsel claim that Wood raised as a result of trial
counsel failing to object to the evidence. Next, the court will review Wood’s argument
regarding this claim in his habeas petition as well as the R&R’s analysis of the claim.
Finally, the court will consider Wood’s objections and conduct its own analysis of the
issue.
i. Facts
Evidence about conditions of confinement was first introduced by the state. The
state called Jimmy Sligh, Classification Director for the South Carolina Department of

21

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.” ECF No. 42-7 at 116. Trial counsel did not object to Sligh being
called as a witness. Id. at 117. The R&R recounts the highlights of Sligh’s testimony in
detail. Sligh agreed that “prison is kind of like a mini city,” id. at 122, and testified about
the various accommodations in prisons. He also explained that inmates in general
population have greater freedom and contact visitation, as opposed to inmates on death
row who have little freedom and only noncontact visitation.
On cross-examination, Sligh confirmed that Wood would be classified at the
highest level of security classifications along with “other murderers [and rapists].” ECF
No. 42-8 at 15–16. Sligh agreed with trial counsel that prison is “a tough place with
tough people.” Id. at 16. On redirect, Slight testified that “the great majority” of inmates
make it though their time in prison without any violent incidents and that a defendant’s
physical characteristics are taken into account when assigning him to a cell so that prison
officials do not “put a 6’8”, 300 pound guy in with a 5’2” little guy.” Id. at 23. On
recross, Sligh confirmed that the Department of Corrections will isolate a prisoner if there
is a problem with the prisoner. Id. at 24.
Trial counsel then called James Aiken (“Aiken”) to testify as an expert on “future
prison adaptability and risk assessment of prisoners.” ECF No. 43-1 at 52, 56–57. Aiken
testified that a person’s behavior during prior incarceration can help predict his future
prison behavior, and that there was a lack of any violent instances in Wood’s past prison
experience. Aiken then described differences between general population and death row,
explaining that on death row “you are locked into a single cell by yourself [so] you get

22

peace and quiet” as opposed to general population, where “you are dealing with the
security threat groups.” Id. at 61. Aiken explained that these “security threat groups”
consist of “predators” who “are constantly trying to take control of you as well as the
prison population.” Id. Finally, Aiken explained that Wood would be an “easier
target . . . to be suscepted [sic] to this type of predator environment” due to his size,
weight, and age. Id. at 63–64. The Solicitor did not cross-examine Aiken.
ii. PCR Order
During Wood’s PCR proceeding, Wood argued that trial counsel’s failure to
object to the evidence about prison conditions constituted ineffective assistance of
counsel. In its order, the PCR court began its consideration of the claim by recounting
the evidence described above. It then summarized several South Carolina cases that
discuss the impropriety of evidence on conditions of confinement during the penalty
phase of a capital trial. Next, the PCR court reviewed the relevant law on ineffective
assistance of counsel, including the standards used to evaluate a Strickland claim. In its
application of this law, the PCR court found that trial counsel was deficient for not
objecting to the evidence on conditions of confinement but concluded that Wood’s claim
failed because Wood was not prejudiced by his trial counsel’s failure to object to the
evidence.
The PCR court began its prejudice analysis by weighing the aggravating and
mitigating evidence. The court explained that the nature of Wood’s crime was
“extremely aggravated” given the murder of a police officer as well as Wood’s
“subsequent wild chase” during which he wounded another police officer. ECF No. 45-3
at 71. In addition, the PCR court noted that Wood had a prior record, had been to prison

23

before, and that the victim impact evidence was “particularly moving.” Id. In
comparison, the PCR court explained, there was little mitigation evidence, including no
testimony from family members and “relatively mild” testimony about Wood’s mental
health. Id. The PCR court also noted that rebuttal testimony about Wood’s mental health
simply concluded that Wood was antisocial.
The PCR court then considered the presentation of the evidence of conditions of
confinement. The PCR court explained that
[t]hrough cross of Sligh and presentation of James Aiken, the defense
elicited how tough prison is, how [Wood] would be far more susceptible to
danger in general population than on death row, and how [Wood] would
likely be at the mercy of predator groups inside the general population of
prison given his small stature and older age.
Id. The PCR court went on to say that “[b]oth sides fully joined the issue and both sides
were able to make headway[,]” resulting in “relative equality of presentation by both
sides on the issue of conditions of confinement.” Id. The PCR court then concluded that
“[g]iven 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.” Id.
iii. Wood’s Argument and the R&R’s Holding
Wood raised his ineffective assistance of counsel claim again in his habeas
petition, ECF No. 85 at 5, and in his traverse in response to defendants’ motion for
summary judgment, ECF No. 150 at 2–9. In his traverse, Wood argued that the PCR
court unreasonably applied Strickland to find that Wood was not prejudiced by the
introduction of evidence regarding prison conditions. Wood explained that both federal
and South Carolina law require a capital sentencing decision to be based on evidence
related to the defendant and to the crime, and that it is improper to inject an arbitrary
24

factor, like evidence on general prison conditions, into the decision-making process.
Wood then contended that the introduction of evidence about general prison conditions is
an especially grave error pursuant to State v. Burkhart, 640 S.E.2d 450 (S.C. 2007), and
that the PCR court did not take this into account when it found that there was “relative
equality of presentation by both sides on the issue of conditions of confinement.” ECF
No. 150 at 7. Finally, Wood argued that the PCR court failed to consider in its prejudice
analysis the prolonged amount of time during which the jury deliberated over Wood’s
sentence.
In considering these arguments, the R&R found that, pursuant to federal law,
admission of evidence of conditions of confinement do not per se prejudice a defendant,
but instead, the totality of the evidence must be considered to determine prejudice. The
R&R concluded that the PCR court properly engaged in such an analysis when it
considered the aggravating and mitigating evidence. The R&R then found that “it is
reasonable to conclude that [the PCR court] recognized the relevance” of Burkart given
its discussion of the case and went on to discuss the impact of Bowman v. State, 809
S.E.2d 232 (S.C. 2018), a recent case that clarified Burkhart and held that the
introduction of evidence about conditions of confinement does not automatically support
a finding of prejudice. ECF No. 190 at 36. Finally, in considering Wood’s argument
about the length of jury deliberations, the R&R stated that “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.” Id. at 37. The R&R then explained that
“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

25

mitigating evidence that the PCR court failed to consider in its analysis.” Id. As a result,
the R&R concluded, Wood did not connect the erroneous admission of prison condition
evidence to any perceived prejudice.
iv. Discussion
The court now considers Wood’s objections to the R&R’s analysis of this claim.
As a reminder, the court reviews the portions of the R&R to which Wood objects de
novo. In doing so, the court reviews the PCR court’s opinion to determine whether,
pursuant to § 2254, the PCR court unreasonably applied Strickland. Because the court is
employing the deferential standards of review under both Strickland and § 2254, the
court’s review is “doubly deferential.” Knowles, 556 U.S. at 123.
Wood first objects to the R&R’s finding that “nothing in federal jurisprudence
requires a finding that admission of evidence of conditions of confinement prejudiced the
defendant.” ECF No. 193 at 4 (citing ECF No. 190 at 35). It is unclear why Wood
objects to this finding. Indeed, there is nothing within federal law that states that, in the
context of a Strickland analysis, a counsel’s deficient performance that allowed for the
introduction of evidence about prison conditions prejudices a defendant. Instead,
Strickland requires a court to “consider the totality of the evidence before the judge or the
jury” when determining whether a defendant was prejudiced by counsel’s deficient
performance. Strickland, 466 U.S. at 695. The mere fact that evidence of prison
conditions was admitted does not necessitate an automatic finding of prejudice. Instead,
the court must consider the evidence of prison conditions in addition to the rest of the
evidence presented during sentencing. Wood appears to believe that this statement
indicates a misunderstanding of Wood’s claim, namely, that the PCR court’s application

26

of Strickland and its prejudice analysis was unreasonable pursuant to South Carolina state
law. Yet the R&R simply made this point to show that evidence of conditions of
confinement is not per se prejudicial under federal law or Strickland. Instead, the R&R
goes on to explain what is required of a Strickland prejudice analysis and concludes that
the PCR court properly stated and applied the law on this issue. As such, the court
overrules this objection.
Wood next argues that the R&R erroneously failed to determine whether Burkhart
factored into the prejudice analysis. As mentioned above, the PCR court summarized the
relevant South Carolina law about the introduction of evidence on prison conditions,
including Burkhart. In Burkhart, the Supreme Court of South Carolina reversed a death
sentence on direct appeal, not on a PCR application, because evidence about general
prison conditions was introduced during the penalty phase of the trial. 640 S.E.2d at 453.
The court explained that even though both parties introduced this evidence, “this entire
subject matter injected an arbitrary factor into the jury’s sentencing considerations.” Id.
at 488. The court reversed the death sentence because, pursuant to S.C. Code Ann. § 163-25(c)(1), a jury may not impose a death sentence under the influence of any arbitrary
factor.
The R&R concluded that the PCR court’s detailed discussion of Burkhart
suggested that the PCR court did consider Burkhart in its prejudice analysis. Indeed,
while the PCR court did not explicitly reference Burkhart in its prejudice analysis, it did
provide a detailed explanation of the case and its holding. However, whether or not the
PCR court considered Burkhart in its prejudice analysis is irrelevant, because in Bowman
v. State, 809 S.E.2d 232 (S.C. 2018), the Supreme Court of South Carolina clarified that

27

Burkhart is inapplicable to a PCR ineffective assistance of counsel claim. Indeed, the
Bowman court “flatly reject[ed] the suggestion that a violation of section 16-3-25(C)(1)
precludes a harmless error analysis in all circumstances.” 809 S.E.2d at 245.
Moreover, the Supreme Court of South Carolina opined that “[i]n any event,
Burkhart provides no support for Petitioner’s claims in this matter, as this is a PCR
claim.” Id. at 346. Instead, a court must still employ the approach articulated in
Strickland, which requires a showing “that ‘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.’” Bowman, 809 S.E.2d at 246 (quoting
Jones v. State, 504 S.E.2d 822, 828 (S.C. 1998)). 4 In other words, while South Carolina
disallows evidence about general prison conditions during the sentencing phase of a
capital trial, this type of evidence is treated as any other evidence for the purposes of a
PCR claim and Strickland analysis. The Bowman court, which was considering the
appeal of a PCR opinion, illustrated this point by going on to find that “[b]ecause the
evidence of guilt and aggravating factors is overwhelming, there is ample evidence to
support the PCR court’s determination that Petitioner failed to establish prejudice” for the
petitioner’s counsel’s failure to object to questioning about general prison conditions. In
sum, Burkhart is not controlling in the Strickland prejudice analysis, meaning that the
R&R did not err in failing to find whether or not the PCR court considered Burkhart.

4

While the Bowman court cites Jones for this law, the same language appears in
Strickland. See Strickland, 466 U.S. at 695 (“[T]he question is whether there is a
reasonable probability that, absent the errors, the sentencer—including an appellate court,
to the extent it independently reweighs the evidence—would have concluded that the
balance of aggravating and mitigating circumstances did not warrant death.”).
28

Wood then makes several objections to the portion of the R&R that found that
“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.” ECF No. 190 at
37. Wood first objects to the R&R’s finding that the amount of time a jury spends
deliberating is not properly considered in a prejudice analysis. Admittedly, Wood’s
original argument on this issue was not particularly clear. Wood originally argued that
“[t]he PCR judge found that [Wood] could not prove prejudice because of the highly
aggravated nature of the crime. This finding, however, fails to consider the jury’s
protracted deliberations regarding petitioner’s sentence.” ECF No. 150 at 8 (citation to
record omitted). Wood went on to describe the timing of the jury deliberations and
concluded that “[t]he jury clearly carefully considered the evidence they received in the
case and did not find the issue of sentence to be a quickly resolved issue.” Id.
The R&R interpreted this argument to be that the PCR court’s prejudice
determination was unreasonable because the jury may have found the evidence to be
more equally weighted than the PCR court did, as indicated by the jury’s lengthy
deliberations. But the R&R concluded that this argument failed because “Wood neither
asserts nor points to any evidence that the jury’s indecisiveness resulted from admission
of evidence of conditions of confinement” and therefore Wood “fail[ed] to tie any
perceived prejudice to counsel’s alleged ineffective act or omission.” ECF No. 190 at 37.
In other words, the R&R held that Wood failed to show that the prolonged jury
deliberations were caused by the evidence about general prison conditions. This appears
to misapprehend Wood’s argument, which was subsequently clarified in Wood’s

29

objections. Wood does not argue that the jury’s indecisiveness itself indicates prejudice.
Instead, Wood argues that the PCR unreasonably weighed the evidence by concluding
that the aggravating evidence clearly outweighed the mitigating evidence when in fact the
length of the jury deliberations suggest that the case was a close one in which the
aggravating evidence did not clearly outweigh the mitigating evidence.
The court finds that the PCR court’s failure to consider the length of jury
deliberations was not a clearly unreasonable application of Strickland. To be sure, some
courts have considered the amount of time the jury deliberated as an indication of how
close the case was. See Roche v. Davis, 291 F.3d 473, 484 (7th Cir. 2002) (explaining
that because “after eight hours of deliberation, the jury was unable to recommend the
death penalty . . . whether the aggravating circumstances outweighed the mitigating
circumstances in this case was apparently a closer call”). However, Strickland does not
require a court to consider the length of jury deliberations but instead requires a court to
balance the aggravating and mitigating circumstances. Strickland, 466 U.S. at 695; see
also Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“In assessing prejudice, we reweigh the
evidence in aggravation against the totality of available mitigating evidence.”).
Indeed, none of the cases cited by Wood require a court conducting a prejudice
analysis under Strickland to consider the length of jury deliberations. Almost none of the
cases cited by Wood involve a Strickland prejudice analysis and instead consider the
prejudice of a constitutional error while applying a harmless error analysis. See Parker v.
Gladden, 385 U.S. 363, 365 (1966) (considering whether comments made by the court
bailiff about the defendant were in violation of the defendant’s rights of confrontation
and cross-examination and whether the comments prejudiced the defendant); Dallago v.

30

United States, 427 F.2d 546, 558–59 (D.C. Cir. 1969) (considering whether the error of
sending certain evidence to the jury was prejudicial); United States v. Varoudakis, 233
F.3d 113, 126 (1st Cir. 2000) (considering whether admission of inadmissible evidence of
prior bad act evidence was prejudicial); United States v. Lopez, 500 F.3d 840, 845–46
(9th Cir. 2007) (considering whether the prosecutor’s reference to the defendant’s postarrest silence was prejudicial). Courts have distinguished between a Strickland prejudice
analysis and a harmless error analysis. See Walker v. Martel, 709 F.3d 925, 940 (9th Cir.
2013) (“Strickland bears its own distinct substantive standard for a constitutional
violation; it does not merely borrow or incorporate other tests for constitutional error and
prejudice.”); Siverson v. O’Leary, 764 F.2d 1208, 1215 (7th Cir. 1985) (“Respondents
correctly note that with respect to this second [prejudice] requirement, the Strickland
analysis differs fundamentally from the traditional harmless error analysis applied to
most types of constitutional error.”). Wood does cite to one case in which a court
considered the length of jury deliberations in its Strickland prejudice analysis, Stafford v.
Saffle, 34 F.3d 1557, 1564 (10th Cir. 1994); however, the court remains unconvinced that
the weighing of evidence to determine prejudice, as mandated by Strickland, requires
consideration of the length of time for which the jury deliberated. As such, the court
concludes that the PCR court did not unreasonably apply Strickland when it failed to
consider the length of jury deliberations while conducting its prejudice analysis.
In a related objection, Wood contends that the R&R improperly faulted Wood for
failing to show that the evidence of prison conditions may have affected the jurors’
decision-making. He contends that because inquiry into juror deliberations is prohibited
by the Federal Rules of Evidence, the R&R placed “an impossible burden” on Wood.

31

ECF No. 193 at 4–5. However, as discussed above, Wood’s argument is not premised on
the claim that the juror deliberations were prolonged because of the evidence of
conditions of confinement. Instead, Wood argued that the PCR court should have
considered the jury’s indecisiveness when determining how close the case was.
Therefore, whether the evidence about prison conditions affected the jurors’ decisionmaking is irrelevant, and this objection is overruled.
Wood’s final objection to the R&R’s analysis of Ground Three is that the R&R
failed to factor into its prejudice analysis the Solicitor’s reliance on prison conditions in
his closing argument. But yet again, Wood has not shown that a court should consider
the repetition of improper evidence in a closing argument when conducting a Strickland
prejudice analysis regarding the introduction of that evidence. Wood solely relies on
Hyman v. Aiken, 824 F.2d 1405 (4th Cir. 1987), but that case is inapposite. In Hyman,
the Fourth Circuit considered whether an improper jury instruction was harmless error or
whether it entitled the death-sentenced defendant to a new trial on the issue of his guilt.
824 F.2d at 1409. The judge had instructed the jury “that malice is ‘presumed from the
willful, the deliberate, the intentional doing of an unlawful act without justification or
excuse’ or from ‘the use of a deadly weapon.’” Id. The Fourth Circuit found that the
instruction may have caused the jury to reasonably believe that that state did not have an
affirmative burden to prove malice, and that this shifting of the burden of proof on intent
was a denial of the defendant’s due process. In concluding that the jury instruction was
not harmless error, the court also noted that the Solicitor relied on the concept of malice
presumptions in his closing argument. Id. at 1410. However, Hyman’s harmless error
analysis was not in the context of a Strickland prejudice analysis, and Wood provides no

32

reference to a case in which a court considered the prosecution’s reliance on improper
evidence when conducting a Strickland prejudice analysis. Therefore, the court overrules
this objection.
b. Ground Four
Wood addresses his objections to Grounds Four and Five in the same section.
However, the R&R found that Ground Four was procedurally barred from federal habeas
review because the state court found that the claim was procedurally barred under state
law, and Wood has not expressed any cause for his default. As such, the R&R did not
substantively consider Ground Four. Wood does not object to the R&R’s finding that
Ground Four is procedurally barred; therefore, the court adopts the R&R’s finding as to
Ground Four and finds that it is procedurally barred.
c. Ground Five
Ground Five alleges ineffective assistance of counsel for trial counsel’s failure to
object to various statements in the Solicitor’s closing argument. Wood only objects to
the R&R’s findings on some of those statements—namely, the Solicitor’s statements
about his decision to seek the death penalty and the death penalty’s statutory limitations,
the Solicitor’s reference to evidence about conditions of confinement, and the Solicitor’s
comments about the jury “sending a message” with its verdict.
As a reminder, Wood has exhausted his state remedies for these arguments, but
they were not raised in his first PCR application. Therefore, they are procedurally
defaulted and must fit within the Martinez exception to be properly considered in
determining whether Wood is entitled habeas relief. To fit within the Martinez
exception, Wood must first show that his underlying ineffective assistance of counsel

33

claim—that trial counsel’s failure to object to the Solicitor’s statements constitutes
ineffective assistance of counsel—is substantial. For each of the Solicitor’s statements,
the court will summarize Wood’s argument in his habeas petition and traverse, review the
R&R’s finding, and consider Wood’s objections.
i. Personal Opinion and Statutory Limitations
Wood first argues that trial counsel was ineffective for failing to object to the
Solicitor’s statements in his closing argument about the Solicitor’s decision to seek the
death penalty and the state’s limited ability to seek the death penalty. The relevant
portions of the Solicitor’s closing argument are as follows:
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? That’s a fair
question for you to ask me, and that’s a fair question that you should ask
yourselves. And I’m going to tell you why.
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.
ECF No. 43-2 at 81, 83–84.
With regard to Wood’s argument about the Solicitor’s comments regarding his
decision to seek the death penalty, the R&R held that Wood failed to establish trial
34

counsel’s performance was deficient based on Wood’s reliance on State v. Woomer, 284
S.E.2d 357 (S.C. 1981), and State v. Butler, 290 S.E.2d 420 (S.C. 1982), overruled on
other grounds by State v. Torrence, 406 S.E.2d 315 (S.C. 1991). Because Wood failed to
show that trial counsel’s performance was deficient, the R&R concluded that Wood
failed to establish a substantial claim of ineffective assistance of counsel, and that the
procedural default could not be excused under Martinez.
Wood objects to this holding, arguing that the R&R failed to appreciate the strong
similarities between the Solicitor’s closing argument and the closing arguments in
Woomer and Butler. In Woomer, the Supreme Court of South Carolina vacated a death
sentence on direct appeal in part because the Solicitor’s closing argument injected his
personal opinion into the jury deliberations by discussing his decision to pursue the death
penalty in the case. 284 S.E.2d at 359–60. In his closing argument, the Solicitor stated:
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 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. The court held because the Solicitor injected his personal opinion, the
resulting death sentence may have been influenced by an arbitrary factor in contravention
of S.C. Code Ann. § 16-3-25(C)(1). Id.
Similarly, in Butler, the Supreme Court of South Carolina vacated a death
sentence on direct appeal due to the Solicitor’s improper injection of his personal opinion
in his closing argument. In discussing the case, the Solicitor stated:

35

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, relying on Woomer, held that because the Solicitor injected his
personal opinion into the jury’s determinations, the death sentence may not be free from
the influence of an arbitrary factor. Id.
The R&R found that the closing arguments in Woomer and Butler were
sufficiently distinguishable from the Solicitor’s closing argument here because the
Solicitor here “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 this case.” ECF No. 190 at 47–48. The court
agrees with the R&R’s assessment. The Solicitor did reference himself when he said
“[n]ow, 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.” ECF No. 43-2 at 81. However, the Solicitor did not expand on his
“tough decision” like the Solicitors in Woomer and Butler nor did he expand on his
reasoning to seek the death penalty. And most importantly, in Woomer and Butler, the
Solicitors explained their decision to seek the death penalty as a way to relate to the jury.
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They were clearly arguing to the jury that they understood the process of deciding
whether the death penalty should be applied to the defendant because they too had to
make the decision of whether to seek the death penalty. Here, the Solicitor only
acknowledged that it was hard for him to ask the jury to consider the death penalty. His
statements simply do not rise to the level of the statements made in Woomer and Butler.
Wood next objects to the R&R’s failure to address his argument about trial
counsel’s failure to object to the Solicitor’s comments about the statutory limitations on
seeking the death penalty. The Solicitor explained that the state “can’t seek [the death
penalty] in every murder” but can “only seek it in certain murders.” ECF No. 43-2 at 83–
84. He went on to explain that the state “can only seek [the death penalty] 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.” Id. at 84. In his traverse, Wood argued that
trial counsel was deficient for failing to object to these statements because they are not
true. Wood explained that at the time of Wood’s sentencing proceeding, South
Carolina’s death penalty statute contained eighteen circumstances that made a murder
death-eligible, and that many of those circumstances have been broadly interpreted by the
Supreme Court of South Carolina. As a result, Wood argued, “the overwhelming
majority of murders were death-eligible and the State had broad discretion to seek death
in virtually hundreds of cases that year.” ECF No. 150 at 21–22. The R&R found this
argument to be unconvincing because South Carolina’s death penalty statute does limit
the cases in which the state may seek the death penalty, making the Solicitor’s statements
true. As such, the R&R concluded that trial counsel’s performance was not deficient and
that Wood could not establish a substantial claim of ineffective assistance of counsel.

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Wood argues that the R&R “simply fails to address the Petitioner’s argument that,
in fact, the overwhelming majority of murders, at the time of Petitioner’s trial and even
now, are death-eligible due to the expansive interpretations afforded statutory aggravators
given by the South Carolina Supreme Court.” ECF No. 193 at 7–8. Yet the R&R
summarizes Wood’s argument and cites to the portion of Wood’s traverse that contains
his argument. ECF No. 190 at 45 (citing ECF No. 150 at 21–22). Therefore, the R&R
clearly did consider Wood’s argument and simply found it unavailing.
Moreover, even if the majority of murders were death-eligible in South Carolina
at the time of Wood’s sentencing trial, this fact does not conflict with what the Solicitor
told the jury. As the R&R explained, South Carolina’s death penalty statute limits the
cases in which the state may seek the death penalty. See S.C. Code Ann. § 16-3-20(B),
(C)(a). The Solicitor did not claim that the state can only seek the death penalty on rare
occasions or even in the minority of murder cases, as Wood’s argument seems to suggest.
Instead, he explained that the state can only seek the death penalty in “certain” murder
cases. ECF No. 43-2 at 84. This is legally accurate. And while characterizing deatheligible crimes as ones “where the murderers are mean and evil people” is not legally
precise, see ECF No. 43-2 at 84, the characterization is not so drastic as to misstate the
law. Therefore, the court overrules Wood’s objections regarding trial counsel’s failure to
object to these comments in the Solicitor’s closing argument.
ii. Evidence about Conditions of Confinement
Wood also alleges that trial counsel’s failure to object to reference to the evidence
about conditions of confinement in the Solicitor’s closing argument constituted
ineffective assistance of counsel. In his closing argument, the Solicitor stated

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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 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 on his lap.
ECF No. 43-2 at 88–89.
The R&R held that Wood failed to demonstrate a substantial claim of ineffective
assistance of counsel for trial counsel’s failure to object to this argument. The R&R first
stated that “[i]n its discussion above regarding Ground Three, this court determined that
the PCR court did not unreasonably err in its consideration of this standard [about the
inadmissibility of evidence on general prison conditions] under Strickland and its
resulting finding that trial counsel’s failure to object to evidence of prison conditions did
not prejudice Wood.” ECF No. 190 at 51. The R&R went on to explain that “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.” Id.
In his objections, Wood first argues that the R&R erroneously held that Wood did
not show that evidence of confinement conditions was impermissible during sentencing

39

proceeding. Wood claims that the PCR court “found that the statements were, in fact,
impermissible,” and that the Magistrate Judge cannot second-guess that finding. ECF
No. 193 at 8. It is unclear to the court what exactly Wood means by “statements.” If he
is referring to statements made during the closing argument about general prison
conditions, the PCR court did not consider these statements, so the PCR court could not
have found them to be impermissible. Wood did not raise this argument until his second
PCR application, so the order on his first PCR application does not address the
permissibility of statements during the Solicitor’s closing argument. To the extent that
Wood is referring to some other statement, his argument is not specific enough for the
court to determine what statement to which he is referring. To the extent that Wood
means “evidence” instead of “statements,” the court addressed that argument in its
consideration of Wood’s objection to the standard of review. Therefore, this objection is
overruled.
Wood also argues that the R&R incorrectly found that trial counsel was not
deficient for failing to object to the Solicitor’s reference to evidence about prison
conditions because he may have had some strategic reason for doing so. The R&R found
that “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.” ECF No. 190 at 53. Wood claims that this finding is
erroneous because at the PCR hearing, Wood’s trial counsel “characterized the testimony
as ‘devastating to [Wood’s] case,’ and testified he did not have any strategic reason for

40

failing to object.” ECF No. 193 at 8 (quoting ECF No. 44-4 at 65–71; ECF No. 44-5 at
9).
As an initial matter, it is important to distinguish between counsel’s failure to
object to the introduction of evidence about conditions of confinement and counsel’s
failure to object to the reference to that evidence in closing argument. Most of the
testimony from the PCR hearing cited by Wood relates to trial counsel’s failure to object
to the introduction of evidence about general prison conditions. See ECF No. 44-4 at 67–
71 (discussing the testimony of Slight and Aiken); ECF No. 44-5 at 9 (discussing the
introduction of testimony about general prison conditions and trial counsel’s failure to
object to the testimony). The strategy behind trial counsel’s failure to object to the
introduction of evidence could be different that the strategy behind trial counsel’s failure
to object to reference to that evidence during a closing argument. This is especially true
given trial lawyers’ general reluctance to object during a closing argument.
Nevertheless, trial counsel did admit at the PCR hearing that he did not have a
strategic reason for failing to object during the Solicitor’s closing argument. After
reviewing the portion of the Solicitor’s closing argument in which the Solicitor discussed
general prison conditions, trial counsel was asked “[a]s far as failure to object to the
closing arguments, did you fail to object to this information for any strategic reason?”
ECF No. 44-4 at 65–66. Trial counsel responded, “no.” Id. Therefore, trial counsel did
explicitly testify that his failure to object was not strategic.
However, the Magistrate Judge cannot be faulted for her failure to reference this
testimony because Wood did not cite to this or any other portion of the record in his
traverse to support his argument that trial counsel did not have a strategic reason for

41

failing to object. Instead, he summarily argued that “[t]rial counsel’s failure to object to
these arguments was objectively unreasonable.” ECF No. 150 at 25. As such, as the
R&R concluded, he provided no evidence in his argument before the Magistrate Judge
that trial counsel’s decision not to object was not strategic or reasonable. It is not the
Magistrate Judge’s job to comb through thousands of pages of the record to find support
for Wood’s arguments.
Moreover, the issue of whether trial counsel’s failure to object was strategic is not
as clear cut as trial counsel’s initial testimony may suggest. On cross-examination at the
PCR hearing, trial counsel was directed to the portion of the Solicitor’s closing argument
in which the Solicitor generally described prison in a manner that seemed favorable.
ECF No. 44-5 at 4. Trial counsel testified that “I read that, and while I certainly think
that that’s bordering on - - I’m not even real sure I’d object to it if it happened today.” Id.
Trial counsel was then asked if it was possible that he did not object because the defense
had introduced Aiken’s testimony about prison and Wood’s vulnerability to predator
groups. Id. at 5. Trial counsel responded that he was unsure, explaining that “[r]eading
this today I do not recall having that state of mind just described” but “[o]n the other
hand, if they were making this argument because it was in response to some testimony,
then just so be it.” Id. Trial counsel stated that “I don’t believe I was sitting there
thinking that that argument is being made and is admissible because it’s responsive to
testimony.” Id. Then in conclusion, trial counsel was asked “if you do not recall that
though, if in fact that testimony had been elicited, is that the kind of thing you would say,
well that’s borderline, I’m not going to object to that directly responsive stuff we put
out?” Id. Trial counsel responded, “Well, like I said a moment ago, I’m not really sure

42

I’d object to it right now.” Id. This testimony indicates that trial counsel’s failure to
object could have been strategic, given both his inability to recall his state of mind during
this portion of the closing argument as well as the fact that he was unsure whether he’d
object to the argument now.
To be sure, in order to show that counsel’s conduct does not fall “within the wide
range of reasonable professional assistance[,]” a “defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S.
91, 101 (1955)). However, trial counsel’s testimony about his strategy, or lack thereof,
alone does not convince this court that trial counsel’s performance was unreasonable.
Instead, “[t]he proper measure of attorney performance remains simply reasonableness
under prevailing professional norms.” Strickland, 466 U.S. at 688. The R&R considered
the reasonableness of trial counsel’s performance, holding that “Wood has not offered
evidence suggesting counsel’s decision not to object was not strategic or reasonable.”
ECF No. 190 at 53 (emphasis added). The R&R explained that “[i]t would not be
unreasonable for both sides to refer to [evidence about conditions of confinement] to
support their closing arguments” because both sides presented evidence about conditions
of confinement. Id.
As an initial matter, Wood did not object to the R&R’s reasonableness
determination, but in any event, the court agrees with the R&R’s reasonableness
assessment. “‘Deficient performance’ is not merely below-average performance; rather,
the attorney’s actions must fall below the wide range of professionally competent
performance.” Griffin v. Warden, Maryland Corr. Adjustment Ctr., 970 F.2d 1355, 1357

43

(4th Cir. 1992). “A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.” Strickland, 466 U.S. at 689. At the time of closing arguments, evidence about
general prison conditions from both sides had been admitted without objection. Because
the evidence was already admitted, the court agrees with the R&R that it would not be
unreasonable for trial counsel to not object to the Solicitor’s reference to the evidence.
Indeed, the court “must be highly deferential in scrutinizing [trial counsel]’s performance
and must filter the distorting effects of hindsight from [its] analysis.” Burket v.
Angelone, 208 F.3d 172, 189 (4th Cir. 2000). In hindsight, and with the benefit of
subsequent and additional South Carolina case law opining on the impropriety of
evidence on general prison conditions, a different conclusion may be warranted. But
examining trial counsel’s performance at the time of Wood’s trial and without the benefit
of hindsight, as Strickland requires, the court simply cannot conclude that trial counsel’s
performance was unreasonable.
Wood also objects to the R&R’s finding that Wood was not prejudiced by the
introduction of evidence about confinement conditions because trial counsel remarked on
the conditions as well. Wood argues that this finding does not address the prejudice of
the introduction of the evidence in the first place. While this objection relates to the
prejudice of “the introduction of this evidence [on conditions of confinement]”, ECF No.
193 at 8, the court interprets this objection to apply to the mention of the conditions of
confinement in the Solicitor’s closing argument. The objection is brought under Ground
Five, which relates to the Solicitor’s closing argument, and Wood argues that he “had the

44

right to respond to the State’s arguments on this issue,” further evincing that this
objection relates to the closing argument and not the introduction of the evidence through
witnesses. ECF No. 193 at 8.
The R&R made no findings about the prejudice of trial counsel’s failure to object
to the discussion of this evidence during the Solicitor’s closing argument. In considering
whether Wood has a substantial ineffective assistance of counsel claim, the R&R found
that Wood did not establish that his trial counsel’s performance was deficient. ECF No.
190 at 53 (“Accordingly, the court finds no reason to set aside the ‘strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.’”
(quoting Strickland, 466 U.S. at 689)). Therefore, the R&R did not reach the question of
whether Wood was prejudiced by trial counsel’s failure to object. As such, this objection
is overruled.
iii. Send a Message
Wood next alleges that trial counsel’s failure to object to the portion of the
Solicitor’s closing argument about “sending a message” to the community constituted
ineffective assistance of counsel. That portion is as follows:
Now, in closing, let me tell you one other thing. You have been intrusted
[sic] by society, by our system, you twelve have been intrusted [sic] 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 it [sic] 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 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,

45

that such conduct will not be tolerated and will receive the ultimate
punishment under our law.
ECF No. 43-2 at 91–92. The R&R found that Wood did not show that this underlying
ineffective assistance of counsel was substantial because trial counsel’s decision to not
object may have been strategic, meaning that trial counsel’s performance was not
deficient. The R&R explained that if trial counsel had objected, he would have both
highlighted the comment and forfeited the opportunity to respond to the comment in his
own closing. In doing so, the Solicitor would have had the last word on this issue.
Wood objects to the R&R’s finding that trial counsel’s decision may have been
strategic, arguing that “[t]he state court did not rely on that reasoning in denying
Petitioner’s claim, and this Court is not empowered to substitute its reasoning.” ECF No.
193 at 9. However, the state PCR court did not consider this claim. Wood first raised
this argument in his second PCR application, which was not considered on the merits and
was instead dismissed as untimely and improperly successive. Therefore, the PCR court
did not rely on this reasoning because it provided no reasoning on this issue. Because
this argument is procedurally defaulted, the R&R properly considered whether trial
counsel’s failure to object may have been strategic. As such, Wood’s objection on this
issue is overruled.
In conclusion, the court overrules all of Wood’s objections and adopts the R&R.

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III. CONCLUSION
For the foregoing reasons the court ADOPTS the R&R, GRANTS the
respondents’ motion for summary judgment, DENIES Wood’s petition for writ of habeas
corpus, and GRANTS in part and DENIES in part Wood’s motion for further factual
development, in accordance with the R&R. 5
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 9, 2019
Charleston, South Carolina

5

By way of reminder, the R&R granted in part Wood’s motion for further factual
development for the limited purpose of the R&R considering the testimony of SLED
agent Gene Donohue, which was not part of the state record and was attached to Wood’s
traverse. Donohue’s testimony was provided in the case State v. John Richard Wood and
Karen Pittman McCall, which was a separate trial that took place in Anderson County.
ECF Nos. 150 at 46; 150-2. The R&R’s partial grant of Wood’s motion for further
factual development does not implicate the court’s holding that Wood’s petition is
denied.
47