Allen v. Davis
Filing
92
ORDER granting the 51 Motion for Summary Judgment, dismissing the 39 Amended Petition, granting in part and denying in part Respondent's 74 Motion to Strike, denying Petitioner's 85 Motion for Discovery, and granting a certificate of appealability as to Grounds Five and Six. Signed by Honorable Donald C. Coggins, Jr. on 3/25/20. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Quincy J. Allen,
Petitioner,
v.
Michael Stephan, Warden, Broad River
Correctional Institution,
Respondent.
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Case No. 0:18-cv-01544-DCC
ORDER
This matter is before the Court on Respondent's Motion for Summary Judgment, ECF No.
51, and Motion to Strike, ECF No. 74, and Petitioner's Motion for Discovery, ECF No. 85.
Petitioner, Quincy J. Allen, is a death-sentenced state prisoner seeking habeas corpus relief under
28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2) (D.S.C.), pre-trial proceedings were referred to the Honorable Paige J. Gossett, United
States Magistrate Judge. On August 2, 2019, the Court unreferred Respondent's Motion for
Summary Judgment for consideration without a Report and Recommendation. ECF No. 55.
Having carefully considered the parties' submissions and the record in this case, the Court
GRANTS Respondent's Motion for Summary Judgment, GRANTS IN PART and DENIES IN
PART Respondent's Motion to Strike, and DENIES Petitioner's Motion for Discovery.
FACTUAL BACKGROUND
The following facts are recited verbatim from the Supreme Court of South Carolina's
opinion affirming Petitioner's death sentence on direct appeal:
1
At approximately 3:00 a.m. on July 7, 2002, Quincy Allen approached a homeless
man, fifty-one year old James White, who was lying on a swinging bench in Finlay
Park in downtown Columbia. Allen ordered White to stand up, and proceeded to
shoot him in the shoulder. When White fell back to the bench, Allen ordered him
to stand up and shot him again. According to Allen's subsequent statement to
police, he had just gotten the shot[]gun and he used White as a practice victim
because he did not know how to shoot the gun. White survived the assault.
A few days later, on July 10, 2002, Allen met a prostitute named Dale Hall on Two
Notch Road in Columbia; he took her to an isolated dead end cul-de-sac near I-77
where he shot her three times with a 12 gauge shotgun, placing the shotgun in her
mouth as she pleaded for her life. After shooting her, Allen left to purchase a can
of gasoline, and came back to douse Hall's body and set her on fire. He then went
back to work at his job at the Texas Roadhouse Grill restaurant on Two Notch Road.
Several weeks later, on August 8, 2002, while working at the restaurant, Allen got
into an argument with two sisters, Taneal and Tiffany Todd; he threatened Tiffany,
who was then 12 weeks pregnant, that he was going to slap her so hard her baby
would have a mark on it. Tiffany's boyfriend Brian Marquis came to the restaurant,
accompanied by his friend Jedediah Harr. After a confrontation, Allen fired his
shotgun into Harr's car, attempting to shoot Marquis; however, Allen missed
Marquis and instead hit Harr in the right side of the head. As the car rolled
downhill, Marquis jumped out and ran into a nearby convenience store, where he
was hidden in the cooler by an employee. Allen left the convenience store, and
went and set fire to the front porch of Marquis' home. A few hours later Allen set
fire to the car of Sarah Barnes, another Texas Roadhouse employee. Harr died of
the shotgun blast to his head.
The following day, Allen set fire to the car of another man, Don Bundrick, whom
he apparently did not know. Later that evening, August 9, 2002, Allen went to a
strip club, Platinum Plus, in Columbia, where he pointed his shotgun at a patron.
Allen left South Carolina and proceeded to New York City. On his way back, while
in North Carolina, Allen shot and killed two men at a convenience store in Surrey
County.2 Allen then went to Texas, where he was apprehended by law enforcement
on August 14th.
[2] Allen pleaded guilty to those murders in 2004 and was sentenced to life
in prison.
Allen gave statements to police outlining the details of his crimes. He told police
he began killing people because an inmate in federal prison, where Allen spent time
for stealing a vehicle, had told him he could get a job as a mafia hit man. Allen got
tired of waiting and embarked on his own killing spree. Allen told police he would
have killed more people if he had had a handgun, but his prior record prohibited
2
him from obtaining a handgun.
State v. Allen, 687 S.E.2d 21, 22–23 (S.C. 2009) (footnote in original).
PROCEDURAL HISTORY
Guilty Plea & Sentencing
In September 2002, the Richland County Grand Jury indicted Petitioner for the murders of
Dale Hall and Jedediah Harr, assault and battery with intent to kill, second degree arson, two counts
of third degree arson, and pointing and presenting a firearm. App. 2937–50.1 The State filed its
Notice of Intent to Seek the Death Penalty on April 5, 2004. App. 2951–53. The Honorable G.
Thomas Cooper, Circuit Court Judge, presided over the case and appointed E. Fielding Pringle,
April Sampson, Robert Lominack, and Kim Stevens2 to represent Petitioner. See App. 0010.
On February 28, 2005, Petitioner waived his right to a jury trial and pled guilty to all seven
indictments. App. 0011–38. Judge Cooper accepted Petitioner's pleas and Petitioner agreed to the
facts as recited by the State. App. 0023–38. The penalty phase commenced on March 7, and
proceeded through March 17, 2005. App. 0040–2555. On March 18, 2005, after hearing ten days
of testimony and evidence from both sides, Judge Cooper sentenced Petitioner to death for both
murders. App. 2553–55. Judge Cooper memorialized his findings in a written sentencing report
dated April 1, 2005. App. 2955–68.
1
The Appendix is located at ECF Nos. 19–23. In addition, the Supplemental Appendix, which the
Court cites as "Supp. App.," is located at ECF No. 65.
2
Ms. Stevens also represented Petitioner in his North Carolina proceedings.
3
Motion to Vacate Guilty Plea
On February 6, 2008, through appellate counsel Robert M. Dudek and Kathrine Hudgins,
Petitioner filed a motion before the Supreme Court of South Carolina to vacate his guilty plea or
remand his case for a hearing on the voluntariness of his plea. App. 2997–3005. On March 5,
2008, after briefing by the State, App. 3070–91, the court denied Petitioner's motion, App. 3153.
Direct Appeal
Petitioner raised the following issues on direct appeal:
1.
Whether appellant's death sentence should be vacated where the court
sentenced appellant to death to deter other mothers from abusing their children in
the manner in which appellant's mother abused him, since the death sentence being
imposed on the basis of this arbitrary factor violates the Eighth Amendment, and
therefore mandates relief under S.C. Code § 16-3-25(C)(1)?
2.
Whether appellant's death sentence should be vacated where the court did
not designate the finding of a statutory aggravating circumstance as mandated by
S.C. Code § 16-3-20(C), and the death sentence therefore must be vacated pursuant
to S.C. Code § 16-3-25(C)(2)?
3.
Whether the court erred by ruling it did not have the authority to rule that
S.C. Code § 16-3-20 was unconstitutional, and by ruling that S.C. Code § 16-3-20
did not violate the Eighth and Fourteenth Amendments because it forced appellant
to choose between his constitutional right to a jury trial and his constitutional right
to present compelling mitigating evidence by pleading guilty, and accepting
responsibility for his actions before a jury of his peers?
App. 3161. On November 16, 2009, after full briefing and oral argument, the Supreme Court of
South Carolina affirmed Petitioner's convictions and sentence. Allen, 687 S.E.2d at 21–26.
4
Post-Conviction Relief Action
Petitioner timely filed for post-conviction relief ("PCR") in the Richland County Court of
Common Pleas. On November 12, 2014, through appointed counsel Elizabeth Franklin-Best and
Laura Young, Petitioner filed his final PCR application, raising the following grounds:
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(b) [sic]. 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)
Encouraging Allen to plead guilty to capital murder in Richland
County without adequate assurances that the trial court judge would
impose Life sentences.
(ii)
Encouraging Applicant to plead guilty to capital murder in Richland
County when statistics show that Richland County juries do not
generally impose death sentences.
(iii)
Failing to adequately litigate issue of striking [the] death penalty on
the basis of race.
(iv)
Failing to elicit any execution impact evidence during the
sentencing hearing when that evidence would have resulted in the
judge's imposing a life sentence.
(v)
Failing to present mitigation evidence of Applicant's childhood
trauma and abuse when that evidence would have resulted in the
judge's imposing a life sentence.
(vi)
Failing to object to the trial court judge's imposition of a death
sentence at the time the sentence was rendered.
(vii)
Failing to object to the trial court judge's confusing the competency
to be executed standard with the standard for finding applicant to be
mentally ill.
5
10(b): Applicant's plea of guilty was rendered involuntarily, in violation of the
rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and by Article I, §§ 12 and 14 of the South Carolina
Constitution, because trial counsel informed him, and apparently without any
factual basis, that the trial court judge promised to impose Life sentences in
exchange for the guilty pleas.
11(b): Applicant pleaded guilty to two counts of capital murder because trial
counsel informed him the trial court judge would impose Life sentences.
10(c): Applicant's plea of guilty was rendered involuntarily, in violation of the
rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution and by Article I, §§ 12 and 14 of the South Carolina
Constitution, because of the inherently coercive effect of the trial judge's
involvement in plea negotiations.
11(c): The trial court judge was extremely involved in the disposition of this case,
engaging in numerous ex parte contacts with the parties, and with the intention of
having Applicant plead guilty to two counts of capital murder.
10(d): Applicant received ineffective assistance of appellate counsel, in violation
of the rights guaranteed by the Sixth, Eighth, and Fourteenth Amendments and by
Article I, §§ 3 and 14 of the South Carolina Constitution, because appellate counsel
failed to raise the issue that Applicant's guilty plea was involuntary due to the
inherently coercive effect of the trial judge's involvement in plea negotiations.
11(d): The inherently coercive effect of the trial judge's involvement in plea
negotiations was apparent to appellate counsel, and sufficiently raised in the Motion
to Vacate Guilty Plea, and appellate counsel was ineffective for [not] raising the
issue on direct appeal.
App. 3275–76.
The State made a timely return and the Honorable R. Ferrell Cothran, Jr., Circuit Court
Judge, was assigned to the case. App. 3280–306. After Petitioner attempted to waive his PCR
proceeding, Judge Cothran ordered Petitioner to undergo a competency evaluation. On January
15, 2014, Judge Cothran conducted a competency hearing, at which Dr. Richard Frierson opined
Petitioner was competent to proceed with his PCR action and Petitioner withdrew his request to
6
waive his appellate rights.
App. 3421–47.
Accordingly, Judge Cothran found Petitioner
competent to proceed. Id. However, on February 2, 2014, Petitioner attempted suicide and, shortly
thereafter, began spreading false information in an attempt to sabotage his case. App. 4259. Thus,
PCR counsel moved for the court to appoint Petitioner a guardian. App. 4258–60. On April 10,
2014, Judge Cothran granted counsels' motion and appointed Diana Holt as guardian. Id.
Judge Cothran held evidentiary hearings on November 17–18, 2014, and March 30, April
1, and April 10, 2015. App. 3486–4017. On December 1, 2015, Judge Cothran dismissed
Petitioner's application and denied PCR relief. App. 4199–257.3 Petitioner moved to alter or
amend the court's order and, on March 31, 2016, after briefing by the State, Judge Cothran denied
Petitioner's motion. App. 4261–4311.
PCR Appeal
Franklin-Best and Young continued to represent Petitioner on appeal and raised the
following issues in Petitioner's Amended Petition for Writ of Certiorari:
I.
Was Quincy Allen's guilty plea involuntary, in violation of the rights
guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and by Article I, Sections 12 and 14 of the South
Carolina Constitution because the trial court judge indicated to trial counsel
that he would impose a life sentence in exchange for Allen's pleading guilty
to two counts of capital murder and Allen relied on that [] assurance when
he pleaded guilty?
II.
Did trial counsel render ineffective assistance of counsel when they urged
their client to forfeit his right to a jury trial without obtaining adequate
assurances from the trial court judge that he would impose a life sentence,
in violation of Allen's rights under the Sixth and Fourteenth Amendments
3
This copy of the PCR order is partially illegible. For the remainder of this order, the Court will
cite to the copy Petitioner submitted to the Supreme Court of South Carolina with his Petition for
Writ of Certiorari, available at ECF No. 22-2.
7
to the United States Constitution and by Article I, Sections 3 and 14 of the
South Carolina Constitution?
III.
Did trial counsel render ineffective assistance of counsel, in violation of
Allen's rights under the Sixth and Fourteenth Amendments to the United
States Constitution and by article I, Sections 3 and 14 of the South Carolina
Constitution when they encouraged Quincy Allen to plead guilty and when
Judge Cooper did not indicate he would sentence him to life sentences
because Richland County juries historically do not impose the death penalty
and a jury would not have sentenced Allen to death?
IV.
Did trial counsel render ineffective assistance of counsel, in violation of
Allen's rights under the Sixth and Fourteenth Amendments to the United
States Constitution and by Article I, Sections 3 and 14 of the South Carolina
Constitution, when they failed to present available and highly mitigating
evidence of Quincy Allen's horrendously abusive and neglectful childhood?
V.
Did trial counsel render ineffective assistance of counsel, in violation of
Allen's rights under the Sixth and Fourteenth Amendments to the United
States Constitution and by Article I, Sections 3 and 14 of the South Carolina
Constitution, when they failed to present readily available and compelling
evidence of Allen's mental illness that would have rebutted the State's claim,
and that Judge Cooper appears to have credited, that Allen malingered his
mental illness?
VI.
Did trial counsel render ineffective assistance of counsel, in violation of
Allen's rights under the Sixth and Fourteenth Amendments to the United
States Constitution and by Article I, Sections 3 and 14 of the South Carolina
Constitution, when they failed to object to the trial judge's confusing the
competency to be executed standard with the standard for finding Allen to
be mentally ill?
VII.
Did trial counsel render ineffective assistance of counsel, in violation of
Allen's rights under the Sixth and Fourteenth Amendments to the United
States Constitution and by Article I, Sections 3 and 14 of the South Carolina
Constitution, by failing to elicit any execution impact evidence during the
sentencing hearing when that evidence would have resulted in the judge's
imposing a life sentence?
ECF No. 22-6 at 9–10. On April 19, 2018, after briefing by the State and a reply from Petitioner,
the Supreme Court of South Carolina denied Petitioner's petition on the merits. ECF No. 22-9.
8
Petitioner sought rehearing, ECF No. 22-10, which the court denied, ECF No. 22-11. The Supreme
Court of South Carolina issued the remittitur on May 25, 2018, and it was filed on May 29, 2018.
ECF No. 22-12.
Federal Habeas Corpus Action
Petitioner timely commenced this federal habeas corpus action on May 25, 2018. ECF No.
1. On May 15, 2019, Petitioner filed an amended petition4 for habeas corpus and raises the
following grounds for relief:
I.
Mr. Allen's Sixth, Eighth, and Fourteenth Amendment rights were violated
where the judge sentenced him to death without finding that the statutory
aggravating factors were proven beyond a reasonable doubt.
II.
Mr. Allen's rights under the Sixth, Eighth, and Fourteenth Amendments
were violated because the trial judge failed to find that any mitigating
circumstance had been established and used an impermissibly high standard
for determining whether Mr. Allen suffered from mental illness; Trial
Counsel ineffectively failed to object to the judge's failure to appropriately
consider and give effect to relevant mitigating evidence.
III.
The sentencing judge's reliance on the deterrent effect a sentence of death
might have on other abusive mothers violated the Eighth Amendment's
4
In its Order appointing counsel, the Magistrate Judge directed Petitioner to file a "placeholder
petition" within 90 days of the order appointing counsel. ECF No. 13 at 6. The Magistrate Judge
further ordered that Petitioner would "then have until the expiration of the one[-]year limitation
period prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 ('AEDPA') to
amend his petition." Id. This practice has been used in this District to prevent the State of South
Carolina from moving forward with an execution prior to the expiration of a petitioner's one-year
statute of limitations under AEDPA. Such a procedure is necessary because federal law permits
a federal court to stay execution of a death sentence for no longer "than 90 days after counsel is
appointed" and after a federal habeas petition is actually filed. 28 U.S.C. §§ 2251(a)(1), (a)(3).
However, there does not appear to be a mechanism by which a federal court can stay an execution
during the period (of up to nine months) when a petitioner is researching and drafting a petition
after the 90-day stay expires. This is further complicated by the Supreme Court of South Carolina's
ruling in In re Stays of Execution in Capital Cases, which makes clear that "[a]ny request for a
stay pending federal habeas corpus proceedings should be made to the federal court." 471 S.E.2d
140, 142 (S.C. 1996).
9
protection against the consideration of an arbitrary factor in determining the
penalty.
IV.
Mr. Allen's guilty plea was not knowing, intelligent, and voluntary, in
violation of the rights guaranteed by the Fifth, Sixth, Eighth and Fourteenth
Amendments because Mr. Allen did not understand the significance and the
consequences of deciding to plead guilty due to the medication he was
taking; Trial Counsel was ineffective in failing to ensure Mr. Allen's plea
was knowing, intelligent, and voluntary.
V.
Trial Counsel were ineffective in violation of Mr. Allen's rights under the
Sixth and Fourteenth Amendments because they advised him to plead guilty
without adequate assurances from the judge.
VI.
Mr. Allen's guilty plea was involuntary, in violation of the rights guaranteed
by the Fifth, Sixth, Eighth and Fourteenth Amendments, because the trial
judge indicated to counsel that he would impose a life sentence if Mr. Allen
pled guilty to two counts of capital murder and Mr. Allen relied on that
assurance in pleading guilty.
VII.
Trial Counsel were ineffective in violation of Mr. Allen's rights under the
Sixth and Fourteenth Amendments when they failed to present available and
compelling mitigation evidence.
VIII.
South Carolina Code § 16-3-20(B) violates the Sixth, Eighth and Fourteenth
Amendments because it requires capital defendants to plead not guilty to
exercise their right to a jury sentencing.
IX.
Petitioner is entitled to relief from his conviction and sentence because of
the prejudicial effects of the cumulative errors in this case.
ECF No. 39.
APPLICABLE LAW
One of the principal purposes of summary judgment "is to isolate and dispose of factually
unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). It is not "a
disfavored procedural shortcut," but is instead the "principal tool by which factually insufficient
claims or defenses [can] be isolated and prevented from going to trial with the attendant
10
unwarranted consumption of public and private resources." Id. at 327. To that end, Rule 56 states
"[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the
case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue
of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a
verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised,
the court must construe all inferences and ambiguities against the movant and in favor of the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the
court that there is no genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the
movant has made this threshold demonstration, the non-moving party, to survive the motion for
summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather,
the non-moving party must demonstrate specific, material facts exist that give rise to a genuine
issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the nonmovant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S.
at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude
granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th
Cir. 1985), overruled on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
"Only 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." Anderson, 477 U.S. at 248.
11
Habeas Corpus
Petitioner's claims are governed by 28 U.S.C. § 2254(d), which provides that his petition
cannot be granted unless the claims "(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"[A] federal habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v.
Taylor, 529 U.S. 362, 411 (2000). Importantly, "a determination of a factual issue made by a State
court shall be presumed to be correct," and Petitioner has "the burden of rebutting the presumption
of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the
doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise
at the appropriate time in state court, removing any further means of bringing that issue before the
state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is
procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477
U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of
a constitutional claim in earlier state proceedings forecloses consideration by the federal courts.
12
Id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar
its courts from considering claims not raised in a timely fashion. Id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second
application for PCR that could have been raised at an earlier time. See S.C. Code Ann. § 17-2790; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct
appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding
in state court. S.C. App. Ct. R. 203(d)(3), 243. If the state courts have applied a procedural bar to
a claim because of an earlier default in the state courts, the federal court honors that bar. See Reed
v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995).
As the Supreme Court of the United States explained:
[State procedural rules promote] not only the accuracy and efficiency of judicial
decisions, but also the finality of those decisions, by forcing the defendant to litigate
all of his claims together, as quickly after trial as the docket will allow, and while
the attention of the appellate court is focused on his case.
Reed, 468 U.S. at 10–11.
However, if a federal habeas petitioner can show both (1) "'cause' for noncompliance with
the state rule" and (2) "'actual prejudice resulting from the alleged constitutional violation[,]'" the
federal court may consider the claim. Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433
U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements
and cannot make the required showing of cause and prejudice, the federal courts generally decline
to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986). Further, if the petitioner does not
raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66
13
F.3d at 1363.
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by
state rules from returning to state court to raise the issue, he has procedurally bypassed his
opportunity for relief in the state courts and in federal court. Coleman v. Thompson, 501 U.S. 722,
731–32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from
considering the claim.
Wainwright, 433 U.S. at 87.
In such an instance, the exhaustion
requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S.
288, 298 (1989).
Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this Court may consider claims
that have not been presented to the Supreme Court of South Carolina in limited circumstances—
where a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting
from the failure, Coleman, 501 U.S. at 750, or where a "fundamental miscarriage of justice" has
occurred, Carrier, 477 U.S. at 495–96. A petitioner may prove cause if he can demonstrate
ineffective assistance of counsel relating to the default, show an external factor hindered
compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where
the novelty of the constitutional claim is such that its legal basis is not reasonably available to the
petitioner's counsel. Id. at 487–89; Reed, 468 U.S. at 16. Absent a showing of "cause," the court
is not required to consider "actual prejudice." Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995).
However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice to
excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must
14
demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134–35 (1982).
As an alternative to demonstrating cause for failure to raise the claim, the petitioner must
show a miscarriage of justice. To demonstrate a miscarriage of justice, the petitioner must show
he is actually innocent. See Carrier, 477 U.S. at 496 (holding a fundamental miscarriage of justice
occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the
conviction of someone who is actually innocent"). Actual innocence is defined as factual
innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this
actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at
496.
Ineffective Assistance of Counsel
To challenge a conviction or sentence based on ineffective assistance of counsel, a
petitioner must prove two elements: (1) his counsel's representation was deficient and (2) he was
prejudiced as a result of counsel's performance. Strickland v. Washington, 466 U.S. 668, 687
(1984). To satisfy the first prong, a petitioner must show that "counsel's representation fell below
an objective standard of reasonableness." Id. at 688. "[B]ecause of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance." Id. at 689.
To satisfy the second prong, 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." Id. at 692. Where a petitioner contests his decision to plead guilty due to ineffective
assistance of counsel, he must show that "there is a reasonable probability that, but for counsel's
15
errors, [he] would not have pleaded guilty and would have insisted on going to trial." Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
DISCUSSION
All of Petitioner's grounds for relief are preserved, except Ground Four, part of Ground
Seven, and Ground Nine's allegation of cumulative error. The Court will address the preserved
grounds first.
Preserved Claims
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal
court may not grant habeas relief unless the underlying state court decision was contrary to or an
unreasonable application of federal law, as determined by the United States Supreme Court, 28
U.S.C. § 2254(d)(1), or based on an unreasonable determination of the facts before the court, id.
§ 2254(d)(2). The Supreme Court has held the "contrary to" and "unreasonable application of"
clauses present two different avenues for relief. Williams, 529 U.S. at 405 ("The Court of Appeals
for the Fourth Circuit properly accorded both the 'contrary to' and 'unreasonable application'
clauses independent meaning."). The Court stated there are two instances when a state court
decision will be contrary to Supreme Court precedent:
A state-court decision will certainly be contrary to our clearly established precedent
if the state court applies a rule that contradicts the governing law set forth in our
cases. . . . A state-court decision will also be contrary to this Court's clearly
established precedent if the state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless arrives at a result
different from our precedent.
Id. at 405–06. On the other hand, a state court decision is an unreasonable application of Supreme
16
Court precedent when the decision "correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner's case." Id. at 407–08; see also Harrington v.
Richter, 562 U.S. 86, 102 (2011) ("Under § 2254(d), a habeas court must determine what
arguments or theories supported or, as here, could have supported, the state court's decision; and
then it must ask whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of this Court. . . . It bears repeating
that even a strong case for relief does not mean the state court's contrary conclusion was
unreasonable."). Finally, a decision cannot be contrary to or an unreasonable application of
Supreme Court precedent unless applicable Supreme Court precedent exists; without applicable
Supreme Court precedent, there is no habeas relief for petitioners. Virsnieks v. Smith, 521 F.3d
707, 716 (7th Cir. 2008) (citing Lockhart v. Chandler, 446 F.3d 721, 724 (7th Cir. 2006)); Simpson
v. Battaglia, 458 F.3d 585, 597 (7th Cir. 2006)); see Bustos v. White, 521 F.3d 321, 325 (4th Cir.
2008).
Ground One
In Ground One, Petitioner asserts the trial judge erred in (1) sentencing Petitioner to death
without finding the existence of specific aggravating factors and (2) failing to find any aggravating
factors proven beyond a reasonable doubt. See ECF No. 39 at 41–43. Petitioner contends these
errors were structural in nature and violated his Sixth, Eighth, and Fourteenth Amendment rights.
Id.
Judge Cooper made specific findings concerning the aggravating factors at the close of the
State's case. The State sought to prove seven enumerated aggravating factors concerning Dale
Hall's murder: (1) the murder was committed while in the commission of a kidnapping, (2) the
17
murder was committed while in the commission of a robbery with a deadly weapon, (3) the murder
was committed while in the commission of a larceny with a deadly weapon, (4) the murder was
committed while in the commission of physical torture, (5) the defendant had a prior conviction
for murder, (6) the defendant committed at least two murders pursuant to one scheme or course of
conduct, and (7) the murder was committed while in the commission of dismemberment of the
victim. App. 2952–53. Regarding the murder of Jedidiah Harr, the State sought to show (1) the
defendant had a prior conviction for murder, (2) the murder was committed by the defendant who
by his act of murder knowingly created a great risk of death to more than one person in a public
place by means of a weapon or device which normally would be hazardous to the lives or more
than one person, and (3) the defendant committed at least two murders pursuant to one scheme or
course of conduct. App. 2951.
After the State concluded its penalty phase case, trial counsel moved for a directed verdict
on all of the State's proffered aggravating circumstances, asserting "there ha[d] been insufficient
evidence presented by the State to satisfy the prevailing legal definitions in South Carolina of these
particular statutory aggravating circumstances." App. 0880–81. Regarding Dale Hall's murder,
Judge Cooper denied counsels' motion and thus found the State made a sufficient showing as to
five of the statutory aggravators. App. 0879–86. With regard to the State's first statutory
aggravator—the murder was committed while in the commission of a kidnapping—Judge Cooper
found "specifically that the State ha[d] made a sufficient showing of that aggravating circumstance
beyond a reasonable doubt." App. 0881. Judge Cooper further denied trial counsels' motion on
two of the State's statutory aggravators for Jedidiah Harr's murder. App. 0886–88.
After ruling on each statutory aggravator, Judge Cooper stated, "[t]herefore, pursuant to
18
Section 16-3-20, this trial will continue. Having found statutory aggravating circumstances
enumerated by the statute, this trial shall continue to the mitigation phase of the trial." App. 0888–
89.
Petitioner's trial counsel presented their mitigation case and then renewed their directed
verdict motions, which Judge Cooper denied. App. 0926–1969. The State presented several reply
witnesses before resting. App. 1972–2437. Despite being provided the opportunity to do so, the
defense did not call any additional witnesses. App. 2436–37.
After closing arguments, Judge Cooper announced his sentencing decision, stating in
relevant part:
I find that, pursuant to 16-3-20 of the Code of Laws of South Carolina, the death
penalty is warranted under the evidence of this case and is not the result of
prejudice, passion, or any other arbitrary factor.
....
After carefully considering all relevant facts and circumstances, including the
existence of statutory aggravating circumstances as well as the claim of mitigating
circumstances, this Court finds and concludes that the defendant shall be sentenced
to death by electrocution or lethal injection as set forth in South Carolina Code
Annotated Section 24-3-530.
App. 2553–54.
In a sentencing report dated April 1, 2005, several weeks after the conclusion of the penalty
phase, Judge Cooper memorialized his sentence and noted he found the following statutory
aggravating circumstances and that those circumstances were supported by the evidence:
Victim Dale Hall: Kidnapping, Larceny with use of a deadly weapon, Physical
torture, murder committed by person with prior conviction for murder
Victim Jedediah Harr: Murder committed by person with prior conviction for
murder, knowingly creating a great risk of death to more than one person in a public
place by means of a weapon or device which would normally be hazardous to more
19
than one person.
App. 2960–62.
In addressing this issue on direct appeal, the Supreme Court of South Carolina relied on
Judge Cooper's sentencing report and remarks at the close of the penalty phase and found:
Accordingly, Allen's contention that the trial court failed to set forth specific
statutory aggravating circumstances is meritless and the sentence was imposed in
compliance with S.C. Code § 16-3-20(C). State v. Chaffee, 285 S.C. 21, 328 S.E.2d
464 (1984), overruled on other grounds State v. Torrence, 317 S.C. 45, 451 S.E.2d
883 (1994) (death penalty may be imposed upon finding at least one statutory
aggravating factor).
Allen, 687 S.E.2d at 24–25.
Petitioner asserts the state court's ruling is an unreasonable determination of the facts and
an unreasonable application of Ring v. Arizona, 536 U.S. 584 (2002), and Chambers v. Mississippi,
410 U.S. 284 (1973). ECF No. 63 at 26. Petitioner argues, under Chambers, he had the right to
present his defense before the trial court found the existence of any statutory aggravating
circumstances and, in violation of Ring, Judge Cooper failed to find any statutory aggravating
circumstances proven beyond a reasonable doubt. ECF No. 63 at 21, 26. In addition, Petitioner
asserts to the extent the state court decision is based on a factual finding that Judge Cooper found
specific statutory aggravators proved beyond a reasonable doubt after Petitioner presented his case,
the decision is based on an unreasonable determination of the facts and is directly contradicted by
the record. ECF No. 63 at 26.
The Court finds all of Petitioner's arguments lack merit. First, Petitioner was not deprived
of an opportunity to present evidence in his own defense, nor did his presentation of that evidence
after Judge Cooper found the existence of statutory aggravators violate his constitutional rights.
As the Supreme Court of the United States has explained:
20
Since Furman v. Georgia, we have required States to limit the class of murderers
to which the death penalty may be applied. This narrowing requirement is usually
met when the trier of fact finds at least one statutorily defined eligibility factor at
either the guilt or penalty phase. Once the narrowing requirement has been
satisfied, the sentencer is called upon to determine whether a defendant thus found
eligible for the death penalty should in fact receive it.
Brown v. Sanders, 546 U.S. 212, 216–17 (2006) (citations omitted). That is the procedure Judge
Cooper followed in Petitioner's case and Petitioner has not offered reason to doubt its
constitutionality.
Second, as detailed above, Judge Cooper stated on the record that he found the State had
proven the first statutory aggravating factor related to Dale Hall's murder beyond a reasonable
doubt. See App. 0881. Judge Cooper further specifically denied trial counsels' motions for
directed verdict on four other statutory aggravating factors applicable to Dale Hall's murder and
two statutory aggravating factors relating to Jedidiah Harr's murder, thus finding the State had
proven the existence of those factors. See App. 0880–88. And in making his findings, Judge
Cooper twice referenced S.C. Code Ann. § 16-3-20, which requires the finding of a statutory
aggravating circumstance beyond a reasonable doubt before a death sentence may be imposed.
See App. 0888–89, 2553; S.C. Code Ann. § 16-3-20(A). Thus, the record supports the state court's
finding that Judge Cooper applied the correct standard and found at least one statutory aggravating
circumstance proven beyond a reasonable doubt with respect to each murder. See Wainwright v.
Witt, 469 U.S. 412, 431 (1985) ("As we have stated on other occasions, . . . where the record does
not indicate the standard applied by a state trial judge, he is presumed to have applied the correct
one."); United States v. Hunt, 794 F.2d 1095, 1100 (5th Cir. 1986) ("[Defendant] argues
nevertheless that a fair trial can occur only if the judge utters the magic words 'with bad purpose.'
For us to require certain ways of defining terms . . . without our reviewing the entire charge,
21
without our inquiring into all circumstances of the trial, would promote shallow form over
substance. We emphatically refuse to straightjacket the district courts' discretion in instructing
juries because a criminal defendant raises some abstract semantical debate.").
For these reasons, Petitioner fails to show the state court's decision was an unreasonable
application of established Supreme Court precedent or based on an unreasonable determination of
the facts and has not shown entitlement to habeas relief on Ground One.
Ground Two
In Ground Two, Petitioner alleges violations of his Sixth, Eighth, and Fourteenth
Amendment rights because (1) Judge Cooper failed to find the existence of any mitigating
circumstance, (2) Judge Cooper used an impermissibly high standard for determining whether
Petitioner suffered from mental illness, and (3) Petitioner's trial counsel were ineffective for failing
to object to Judge Cooper's failure to appropriately consider and give effect to relevant mitigating
evidence. ECF No. 39 at 43. Petitioner raised and properly exhausted this claim in this PCR
application and on PCR appeal.
Petitioner's argument again focuses on Judge Cooper's oral sentencing order. He contends,
despite trial counsels' presentation of mostly undisputed evidence of Petitioner's childhood trauma
and abuse and longstanding history of mental illness, Judge Cooper failed to discuss Petitioner's
life history during sentencing and focused solely on whether Petitioner was mentally ill at the time
he committed the crimes or at the time of trial. ECF No. 39 at 43–55. The record rebuts these
assertions.
Judge Cooper began his sentencing order by recognizing the importance of Petitioner's
mental health evidence: "In the case of The State vs. Quincy Jovan Allen, this is a difficult case.
22
Because of the far-reaching mental health implications of this decision, it is significant to our
society and our community." App. 2527. After recognizing the case's significance to others who
were impacted by Petitioner's crimes and by the trial itself, Judge Cooper described the evidence
before him:
In considering the outcome of this sentencing hearing I have tried to understand the
unique forces and events which have put Mr. Allen in the situation in which he
finds himself today. I have considered his upbringing so masterfully chronicled by
Debra [sic] Grey. I've considered his list of mental illness[es] as described by Dr.
Pam Crawford.
I've considered the facts of the various murders that Mr. Allen does not deny. I've
considered the impact to James White, to Dale Hall's family and to the Harr family.
I've also considered the effect of this trial on Quincy Allen's two younger brothers
who have sat through the majority of this trial. And I have considered the
passionate arguments of counsel on both sides of this case.
I have further considered the North Carolina proceedings and the defendant's prior
motion to bar the State from contesting Mr. Allen's mental illness due to the
findings of Judge Martin in that case. I wish to state for the record that this
proceeding has been completely different from the one in North Carolina.
In North Carolina, a plea agreement was entered into by both the State and the
defendant, the terms of which were that Mr. Allen would be sentenced to two life
without parole sentences by Judge Martin in exchange for Mr. Allen's guilty plea.
That was not a sentencing hearing as this has been. During the North Carolina
sentencing hearing no death penalty was sought. No contesting witnesses were
called by the State. I am hesitant to speculate, but I suspect that that hearing was
not in the least comparable to the one we have experienced in the last two weeks.
I, therefore, affirm my earlier decision not to be bound by the North Carolina court's
decisions.
Mr. Allen raises the issue of mental illness as his reason for avoiding the death
penalty. His attorneys argue that due to his diagnosed mental illness his culpability
was diminished and no retributive or deterrent effect would be served by the
imposition of the death penalty.
Addressing the issue of mental illness, I have not seen convincing evidence that
Mr. Allen had a major mental illness at the time of the crimes in 2002. I have seen
a series of short-stay hospitalizations from 1997, 1998 and 1999, but no recognition
of a mental illness that required or demanded a treatment program.
23
If he had a major mental illness in 1997 or 1998 or 1999, then the mental illness
community failed him and failed this community. His sole form of treatment was
to give him some pills and send him away. This leads me to believe that his mental
condition and behavior were primarily a reaction to a very poor and destructive
home life as a child from which he chose to act out in ways that would garner
attention for himself, whether by being annoying, or childish or aggravating.
His subsequent actions of attempting to kill James White and ultimately killing
Dale Hall were, I believe, a result of his desire to be noticed and respected. And if
he had a major mental illness at that time in 2002, no one, not even his psychiatrists,
were aware of it.
Add to this his casual, if not happy, conversations with Tia Brown immediately
after killing two people in North Carolina and his remarkably calm descriptions to
Agent Lloyd Terry on August 15th, 2002, immediately after his capture in great
detail of the crimes that he had just committed.
These lead me to believe that if indeed he had schizophrenia, it was not evident and
the disease did not control his mind to such a degree as to exonerate or lessen the
culpability of his actions.
And what is Mr. Allen's condition today? I have listened to and read the accounts
of all of the psychiatrists and psychologists in this case: Doctors Hilkey, Gupta,
Lavin, DeBeck, Hattem, Crawford, Mirza, Tezza, Corvin and Schwartz-Watts.
Quite frankly, I cannot tell with certainty what his mental state is today. I know he
is on medication. I have observed him sitting quietly at counsel table, making notes,
reading a dictionary, and not exhibiting any unusual or bizarre behavior. I have
noticed him communicating with counsel and on occasion, smiling. He has always
had a neat and well-groomed appearance.
Yet, three respected psychiatrists, Dr. Corvin, Dr. Crawford, and Dr. SchwartzWatts have testified that as he sits here today he has a major mental illness
characterized by delusions, hallucinations, disorganized speech, grossly
disorganized or catatonic behavior, and negative symptoms, such as affective
flattening, alogia, or avolition. And maybe he does, although his outward
appearance belies such a condition.
On the other hand, I have heard Dr. DeBeck and Dr. Hattem say that in August
2003, their diagnosis was that he was malingering. Dr. DeBeck, a psychiatrist at
the Dorothea Dix Hospital in North Carolina, on August 29th, 2003, after a
thorough evaluation said, "Mr. Allen did not show symptoms of a psychiatric
disorder during his hospital stay, despite being off antipsychotics since April 11th,
24
2003."
Dr. Tezza and Dr. Mirza also testified that on December 3rd, 2004, they found that
Mr. Allen was malingering when sent to Just Care by the Richland County
Detention Center.
....
These contrary opinions lead me to no firm conclusions as to Mr. Allen's mental
state at this time.
App. 2527–33.
Judge Cooper then cited Ake v. Oklahoma, 470 U.S. 68 (1985), for the proposition that
"because 'psychiatrists disagree widely and frequently on what constitutes mental illness and on
the appropriate diagnosis to be attached to given behavior and symptoms,' the fact finder must
resolve differences in opinion within the psychiatric profession 'on the basis of the evidence
offered by each party' when a defendant's sanity is at issue in a criminal trial." App. 2533–34
(quoting Ake, 470 U.S. at 81). He went on to discuss Supreme Court decisions banning capital
punishment for the mentally incompetent, insane, and youth under eighteen years old, and
specifically the Court's reliance on the lack of deterrent or retributive effect on those categories of
offenders. App. 2534–37 (citing Atkins v. Virginia, 536 U.S. 304 (2002); Roper v. Simmons, 543
U.S. 551 (2005); Ford v. Wainwright, 477 U.S. 399 (1986)). Judge Cooper then recited South
Carolina's two-prong test for determining whether a defendant is competent to be executed, but
stated he relied on that authority "as a guide" because of "the lack of guiding principles dealing
with the imposition of the death penalty on persons with mental illness." App. 2538, 2548 (quoting
Singleton v. State, 437 S.E.2d 53, 58 (S.C. 1993)). He concluded Petitioner was competent under
Singleton's test but did not end his analysis there. App. 2548.
Judge Cooper then wrestled with whether Petitioner's actions were driven by fate, mental
25
illness, or free will before concluding:
Mr. Allen set out on a journey sometime in 2002 to become a serial killer. The
force that determined whether he would accomplish that goal was in his own mind,
his own intelligence, his own will, a will that his doctors tell us now was not free.
App. 2548–51. In addition, Judge Cooper asked whether he should consider Petitioner's prior
declarations of his desire and intent to murder more people or whether those statements resulted
from mental illness. App. 2551. Judge Cooper returned to his consideration of deterrence and
retribution before finally announcing Petitioner's sentence. App. 2552–53.
In his PCR application, Petitioner framed this claim as an assertion that trial counsel were
ineffective for "failing to object to the trial court's confusing of the competency to be executed
standard with the standard for finding mental illness." ECF No. 22-2 at 53. In denying this claim,
the PCR court found:
[C]ounsel was not deficient in failing to object to Judge Cooper's statement where
he discussed the failure to show that he met the standards of competency to be
executed because it does not indicate that Judge Cooper declined to consider the
mitigation evidence as presented. Rather the [sentencing] order expresses a
conclusion that Judge Cooper did not give the evidence of mental illness the weight
that Applicant wanted him to give. Since consideration of the evidence was
properly given, counsel could not be deemed ineffective for failing to object. The
suggestion that Judge Cooper confused the concept with guilty but mentally ill, a
guilt phase issue, is not persuasive. The transcript is more fairly read to reflect a
global assessment of the facts and circumstances before the sentencing judge,
which he considered, weighed and narrowed, until arriving at his sentencing
conclusion. Applicant has not persuaded this Court that the sentencing court
confused the competency to be executed standard with the standard for finding
mental illness. As such, the Applicant has failed to establish either prong of
Strickland.
ECF No. 22-2 at 54.
Petitioner contends that, because he presented a large amount of mitigating evidence, much
of which was uncontested, and Judge Cooper failed to find the existence of any mitigating
26
circumstances, Judge Cooper could not have possibly considered, weighed, or given effect to all
of the relevant mitigating evidence as required by Woodson v. North Carolina, 428 U.S. 280
(1976); Lockett v. Ohio, 438 U.S. 586 (1978); and Eddings v. Oklahoma, 455 U.S. 104 (1981).
ECF No. 63 at 34. Thus, Petitioner asserts the PCR court's contrary conclusion is based on an
unreasonable determination of the facts and represents an unreasonable application of Woodson,
Lockett, and Eddings. Id.
Under Woodson, Lockett, and Eddings, a jury or sentencing court may "not be precluded
from considering, as a mitigating factor, any aspect of a defendant's character or record and any
of the circumstances of the offense that the defendant proffers as a basis for a sentence less than
death." Lockett, 438 U.S. at 604 (emphasis in original). Moreover, the sentencing authority "may
determine the weight to be given relevant mitigating evidence," "[b]ut it may not give [this
evidence] no weight by excluding such evidence from [its] consideration." Eddings, 455 U.S. at
114–15.
Thus, the Constitution does not require a capital sentencer to find the existence of a
mitigating factor, only to consider all of the evidence offered in mitigation. Here, Judge Cooper
explicitly stated he considered the evidence of Petitioner's abusive childhood and alleged mental
illness in reaching his decision. He went on to discuss some of that evidence in detail and describe
how he assessed it. Judge Cooper's decision to grant that evidence little weight does not rebut the
record's clear indication that he did, in fact, consider it.
Accordingly, Petitioner fails to show the PCR court's ruling is contrary to, or an
unreasonable application of, clearly established federal law or is based on an unreasonable
determination of the facts. Respondent's Motion for Summary Judgment is granted as to Ground
27
Two.
Ground Three
In Ground Three, Petitioner alleges Eighth and Fourteenth Amendment violations because
Judge Cooper considered an arbitrary factor—the potential deterrent effect on other abusive
mothers—in reaching his sentencing decision. ECF No. 39 at 56–59. Petitioner properly
exhausted this claim on direct appeal and asserts the state court's denial is based on an unreasonable
determination of the facts and unreasonably applies established Supreme Court precedent requiring
an individualized sentence. ECF No. 63 at 35–39.
Much of Petitioner's penalty phase evidence focused on his traumatic childhood, including
the abuse he suffered by his own mother. See, e.g., App. 1069–72 (describing 19-month-old
Petitioner's referral to protective services because his mother "had other things on her mind" and
failed to treat his fever, which turned into pneumonia); App. 1073–75 (describing the violence
Petitioner's stepfather inflicted on Petitioner and his mother); App. 1093–95 (describing other
extreme incidents of Petitioner's mother abusing him); App. 1111–12 (Petitioner's mother withheld
basic food and shelter as punishment); App. 2094 (Petitioner's mother used to throw him in a
trashcan, beat him with a belt, and lock him in a closet). Trial counsel's closing statement, the last
argument Judge Cooper heard before announcing Petitioner's sentence, further emphasized that
evidence and its relevance to Petitioner's defense. App. 2514–25.
As discussed in Ground Two, Judge Cooper's sentencing order highlighted the concepts of
retribution and deterrence as guiding factors in the Supreme Court's capital punishment
jurisprudence. Judge Cooper defined retribution as "the interest in seeing that the offender gets
his 'just deserts,'" and stated "the severity of the appropriate punishment necessarily depends on
28
the culpability of the offender." App. 2534 (quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)).
Importantly, again citing Atkins, Judge Cooper defined deterrence as "the interest in preventing
capital crimes by prospective offenders," and noted the Court's observation that "capital
punishment can serve as a deterrent only when the murder is a result of premeditation and
deliberation." App. 2535.
Judge Cooper discussed some of the crueler aspects of Petitioner's crimes in assessing
Petitioner's claims of mental illness and then returned to his consideration of retribution and
deterrence as applied to Petitioner's case. App. 2549–52. Judge Cooper found both concepts
applicable, stating:
Retribution in a sense is the easiest. Considering the fear Mr. Allen struck into the
heart of James White and the subsequent shooting of James White for practice, I
find retribution appropriate.
Considering the fear Mr. Allen struck into the heart of Dale Hall, the absolute
depravity of her murder, and the subsequent burning of her body, I find retribution
appropriate.
Considering the callous killing of Jedediah Harr and the subsequent stalking of
Brian Marquis for the purpose of killing him, I find retribution appropriate.
And how could Quincy Allen's death serve as a deterrent to others, to the abused
and neglected young people of this community? Maybe it will make some young
man or some young girl stop and think about the results of destructive behavior.
Hopefully, hopefully, it will make some young mother, single or otherwise, think
about the love and care that children need, no matter how tough the circumstances,
and would deter that mother from making the same horrible choices made with
Quincy Allen. I would hope that this sentence has at least that deterrent effect, but
we may never know.
App. 2552–53. It is this last paragraph that forms the basis of Petitioner's claim.
Considering this claim on direct appeal, the Supreme Court of South Carolina cited the
relevant precedent requiring sentencing phase evidence to relate to the defendant's character or the
29
circumstances of the crime, listing retribution and deterrence as justifications supporting imposing
the death penalty, and allowing admission of general deterrence evidence in the penalty phase of
a capital trial. App. 3269 (citing, e.g., U.S. Const. amend. 8; Gardner v. Florida, 430 U.S. 349
(1977); Beck v. Alabama, 447 U.S. 625 (1980); Gregg v. Georgia, 428 U.S. 153 (1976); Enmund
v. Florida, 458 U.S. 782 (1982); State v. Shuler, 577 S.E.2d 438 (S.C. 2003)).
The Supreme Court of South Carolina found as follows:
It is clear from reading the entirety of the trial court's sentencing order, along with
the written sentencing report, that the death sentence was based upon the
characteristics of Allen and the circumstances of the crime, such that the penalty is
warranted . . . .
....
We do not find the trial court's imposition of the death sentence in this case to be
the result of any arbitrary factor. In reading the entirety of the court's colloquy, it
is clear that the sentence was premised primarily on retribution to this particular
defendant, and the fact that the murders were deliberate, premeditated and cruel.
The trial court commented on the way Allen put a shotgun to Dale Hall's mouth and
pulled the trigger, then went to the gas station, bought gas, and went back and
burned her body. He commented on the fact that Allen changed the load in his
shotgun to hollow point slugs to make it more destructive. He commented on the
fact that it was Allen's intention to become a serial killer in order to garner respect.
He commented on the fact that Allen told people he would kill again if given the
opportunity. He commented on the fact that Allen then left the state and went and
committed more murders in North Carolina.
Notwithstanding the trial court's isolated comment concerning deterrence to
abusive parents, it is patent the sentence does not rest on this ground and was not
imposed due to an arbitrary factor. Accordingly, the sentence is affirmed.
Allen, 687 S.E.2d at 24.
Petitioner argues, "[t]o the extent that the state court ruled that deterring other mothers from
abusing their children is not an 'arbitrary factor,' that decision is contrary to and an unreasonable
application of" Supreme Court precedent requiring an individualized sentencing, related to the
30
defendant's character and the circumstances of the crime. ECF No. 63 at 38. While the Court
agrees that basing a death sentence on its potential deterrent effect on abusive mothers could be
arbitrary and capricious in some circumstances, Petitioner has not shown that to be the case here.
The crux of the issue here is whether and to what degree Judge Cooper actually relied on
the potential deterrence of abusive mothers in reaching his sentencing decision. Petitioner insists
the record clearly disputes the state court's finding that Petitioner's sentence did not rest on this
factor and points to Judge Cooper's discussion of deterrence and retribution as controlling
considerations. ECF No. 63 at 38.
Under 28 U.S.C. § 2254(d)(2), a federal court may not grant Petitioner relief on a claim
already adjudicated on the merits in state court unless the adjudication "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." In considering such a claim, the Court must presume the correctness of
any "determination of a factual issue made by the State court" and Petitioner "shall have the burden
of rebutting the presumption of correctness by clear and convincing evidence." § 2254(e)(1). "[A]
state-court factual determination is not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301
(2010). "[E]ven if '[r]easonable minds reviewing the record might disagree' about the finding in
question, 'on habeas review that does not suffice to supersede the trial court's . . . determination.'"
Id. (quoting Rice v. Collins, 546 U.S. 333, 341–42 (2006)).
While Petitioner clearly disagrees with the state court's finding, he has not shown that
finding to be unreasonable. The record before the state court suggests Judge Cooper properly
considered the retributive and deterrent effect of Petitioner's sentence. Judge Cooper clearly
31
emphasized retribution in this case, but also noted a potential deterrent effect on possible future
offenders. See App. 2552 ("And how could Quincy Allen's death serve as a deterrent to others, to
the abused and neglected young people of this community? Maybe it will make some young man
or some young girl stop and think about the results of destructive behavior."). In context, Judge
Cooper's brief mention of a "hopeful" deterrent effect on abusive mothers is reasonably read as a
response to the abundant evidence before him of Petitioner's horrible, abusive childhood, and not
as a basis for his sentencing decision.
Accordingly, Petitioner fails to show the state court based its decision on an unreasonable
factual determination; thus, the Court grants Respondent's Motion for Summary Judgment as to
Ground Three.
Grounds Five & Six
In Grounds Five and Six, Petitioner contends he involuntarily pled guilty due to trial
counsels' bad advice (Ground Five), which they based on an indication from Judge Cooper that he
would not impose the death penalty if Petitioner pled guilty (Ground Six). See ECF No. 39 at 71–
89. Petitioner's assertions in these two grounds were hotly contested during the PCR proceedings,
accounting for the bulk of the testimony and final PCR order.
Relevant Background
The following facts are uncontested. At some point prior to Petitioner's guilty plea, defense
counsel asked Dr. Crawford to meet with Richland County Solicitor Barney Giese, with whom she
had a good working relationship, to share her opinion that Petitioner suffered from schizophrenia
and see if the State would be open to pleading Petitioner to life. App. 3579–80. Giese informed
Dr. Crawford that one victim's family was adamant that the State should seek the death penalty
32
and the State was reluctant to go against their wishes. App. 3521–22. However, Giese indicated
he would not oppose an ex parte meeting between defense counsel and Judge Cooper to discuss a
potential guilty plea in exchange for Judge Cooper sentencing Petitioner to life. App. 3522.
On February 24, 2005, Petitioner's attorneys—Pringle, Lominack, and Sampson—met with
Judge Cooper in his chambers. App. 3523. Pringle, Petitioner's lead attorney, attempted to elicit
an affirmative promise from Judge Cooper that he would sentence Petitioner to life if Petitioner
pled guilty. App. 3527. During the meeting, Judge Cooper and Pringle briefly discussed Scott
Turow's book, "The Ultimate Punishment,"5 and its admonishment that capital punishment be
reserved for the "worst of the worst." App. 3526–28. Judge Cooper also repeatedly told trial
counsel to trust Dr. Crawford. App. 3530.
Pringle attests that the meeting ended after she stated she did not want to find herself on
the witness stand at a capital PCR hearing trying to explain why she pled her client without an
assurance from the judge and Judge Cooper responded, "there will never be a capital PCR hearing,
you don't have to worry about that."6 App. 3528–29. Judge Cooper has no recollection of making
this comment, but admits he was sympathetic to Petitioner and inclined to impose life sentences
during the pre-trial phase based on trial counsels' portrayal of Petitioner's severe mental illness and
acknowledges that he may have made comments indicating as much. App. 3039.
5
Turow, Scott. 2003. Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death
Penalty. New York: Farrar, Straus, and Giroux.
6
Recounting her meeting with Judge Cooper during her testimony at the PCR hearing, Pringle
testified, "the last thing I remember saying is I cannot be sitting on a witness stand in a capital PCR
explaining why I pled my client in a death penalty case where he ended up getting death where I
had no assurance from you, from the judge. I said I think I know what you're saying, but I've got,
you know, I don't think I can do that. And then he said Fielding there will never be a capital PCR
hearing, you don't have to worry about that." App. 3528–29.
33
Pringle signed an Affidavit on September 7, 2005—several months after the sentencing—
which outlined the circumstances leading to the ex parte meeting and her recollection of the
meeting in detail. Pringle stated that Judge Cooper invited her, Lominack, and Sampson to an in
chambers meeting, without a law clerk or secretary present. Pringle further stated:
I told him why we were there and he said he knew and he was glad because he had
been "dropping us hints" to plead the case in front of him. He acknowledged that
one time he had dropped a hint on the record and also acknowledged that his loaning
me Scott Turow's book "The Ultimate Punishment" was another such time. He had
loaned this book to me in the summer of 2004 after notice was served on [Petitioner]
and after Cooper had been assigned to the case. I returned the book to him some
time after August 2004 with a note of thanks tucked inside. He stated that he, like
Scott Turow, believes capital punishment should be reserved only for the "worst of
the worst" and only in the rarest of times. I told him that worried me because he
might think [Petitioner] was the worst of the worst. I told him the details and facts
of the crimes [Petitioner] had committed. He responded that that did not mean
[Petitioner] was the worst of the worst, that what he had done might be, but there
might be things that mitigate the situation. We told him [Solicitor] Giese was
adamant that Judge Cooper would give him life if we'd plead the case. I asked him
why. At that point he said well there's something you should know. He told me he
had called [Solicitor Giese] earlier in the week after the pre-trial hearings to see if
he could resolve the case, if there was any way to plead it. He told us the solicitor
was very upset and that he "counseled him" and tried to help him see that business
is business and not to take things personally. He said that [Solicitor] Giese told him
that he would not be upset if Judge Cooper gave [Petitioner] life if he pled. I
continued to mention that Dr. Crawford said the judge would give [Petitioner] life.
At one point, Judge Cooper responded that we would have to trust our expert Dr.
Crawford. Judge Cooper also said that we should realize that no judge likes to be
reversed and one way to ensure he was not reversed would be to give [Petitioner]
life. I continued to ask him if he would tell me directly that he would give
[Petitioner] life as opposed to talking around the issue. I told him I did not want to
be sitting on a witness stand in a capital PCR hearing one day explaining why I pled
[Petitioner] in front of a judge who would give him death. He responded, "there
will never be a capital PCR hearing so you don't have to worry about that." At that
point, we knew he had said what we needed to hear and we concluded the meeting.
It was our interpretation of Judge Cooper's remarks that he was saying clearly and
unequivocally that he would give Quincy a life sentence if we placed the case in
his hands.
ECF No. 39-10 at 98–99.
34
In addition to this Affidavit, there is other evidence to support Pringle's testimony about
the ex parte meeting. On February 25, 2005—the day after the ex parte meeting—Lominack sent
an email to his co-counsel recounting "[his] reasons for thinking that [Judge Cooper] was telling
us that he would definitely give Quincy life." Id. at 87. The email supports Pringle's testimony
and Affidavit, in toto, including recounting Judge Cooper's statement about there being no PCR
hearing. See id. (setting forth numerous statements from Judge Cooper). The email also indicates
that Lominack discussed the meeting with two preeminent death penalty lawyers—David Bruck
and John Blume7—both of whom agreed that Judge Cooper's statements were "clear signals that
[Judge Cooper] is telling us exactly what he'd do." Id. Lominack noted in a second email that
Judge Cooper also "said he would not be swayed by public opinion" and that Judge Cooper told
defense counsel he had called Solicitor Giese earlier that week to ask him about a potential plea
offer. Id. As a result of this call, Judge Cooper told defense counsel that "he believe[d] [Solicitor
Giese] would not be upset with him no matter what the outcome." Id.
It is clear that defense counsel left this meeting with the clear and unequivocal
understanding that Judge Cooper would sentence Petitioner to life if he pled guilty and that the
evidence presented during the penalty phase needed to support their assertion of Petitioner's severe
mental illness. See App. 3529–30. In contrast, Judge Cooper claims in an October 14, 2005
Affidavit8 that he left the meeting thinking Petitioner was not going to plead guilty and he
7
Pringle testified at the PCR hearing that, after the meeting, she called Blume and Lominack called
Bruck. App. 3551–52.
8
In the same Affidavit, Judge Cooper stated that he had "no recollection of any PCR discussion";
however, he "admit[ted] that throughout the pre-trial phase of this case, [he] was inclined, if the
matter were left in [his] hands, to impose life sentences based on what [he] had been told by the
Defense team of [Petitioner's] severe mental illness." App. 3122. Judge Cooper further
35
continued with his preparations for trial. App. 3038–39.
The next day, trial counsel met with Petitioner, informed him of their discussion with Judge
Cooper, and advised him to plead guilty. Petitioner has repeatedly stated on the record that counsel
did not tell him Judge Cooper made an express promise of a life sentence, nobody promised him
any particular sentence, and he based his decision to plead guilty on his impression that he would
have a better chance at a life sentence. See, e.g., App. 0018–20 (expressing understanding during
plea colloquy that Judge Cooper could sentence him to either life or death and stating nobody
promised him any sentence); App. 3494–95 (testifying at PCR hearing that he did not expect to
receive a particular sentence by pleading guilty and that counsel advised him he would "have a
better chance" at life if he pled guilty).
With these facts in mind, the PCR court made the following conclusions:
The guilty pleas by Quincy Allen were freely and voluntarily entered and not the
product of a promise of a life sentence by either the sentencing court or his counsel.
The decision to plead guilty in front of Judge Cooper was a strategic decision on
the part of the defense team with a hope of receiving a life sentence, but that
decision was not made based on a guarantee of a life sentence by the sentencing
judge to counsel as counsel were aware that they had to convince the court of the
existence of a significant mental illness and to dispute the conclusion of
malingering.
Defense counsel knew it was a risk to waive a jury trial; however, they concluded
and represented to Applicant that, based upon (a) the circumstances of the crime,
and (b) their investigation into mitigation and, in particular, their investigation into
the Applicant's mental health, that an extensive proffer of evidence (even if
contested) could convince the plea judge to impose a life sentence.
Since there was no promise or guarantee of a life sentence, counsel was not
acknowledged that he had "no doubt some of [his] comments may have indicated" sympathy. Id.
However, Judge Cooper's Affidavit makes clear that, after hearing the testimony at the sentencing
hearing, he "believe[d] [he] was misled" by defense counsel about the nature of Petitioner's mental
illness and "the viciousness and brutality of [Petitioner's] crimes." Id.
36
deficient in failing to object to the death sentence on that basis.
The decision to advise the Applicant to plead guilty and be sentenced by Judge
Cooper was a reasonable decision by counsel based upon their investigation of the
facts.
Although the judge's actions may have indicated an inclination toward life
sentences, all counsel understood it was not a guaranteed life sentence, and the
judge refused to guarantee such a sentence in advance of the evidence.
ECF No. 22-2 at 6–7.
Ground Five – Ineffective Assistance of Counsel
In Ground Five, Petitioner alleges trial counsel were ineffective for advising him to plead
guilty because they: (1) knew Richland County juries rarely imposed the death penalty, even for
heinous crimes; (2) failed to obtain adequate assurance from Judge Cooper that he would sentence
Petitioner to life; and (3) misrepresented their conversation with Judge Cooper to Petitioner,
leading him to believe Judge Cooper would sentence him to life. ECF Nos. 39 at 71–77; 63 at 49.
Respondent maintains the PCR court's decision is supported by the record. ECF No. 50 at 58–61.
As discussed above, the PCR court found Petitioner failed to prove either deficiency or
prejudice. Judge Cothran based this decision, in part, on his finding that Judge Cooper never
promised a life sentence in exchange for Petitioner's guilty plea. The Court agrees with Petitioner
that the record does not support such a finding. While Judge Cooper indicates that he never
intended to issue an express "promise" or "guarantee," the Court sees no other way to interpret his
comments during the ex parte meeting, especially his indication to Pringle that there would never
be a capital PCR hearing, than as an implicit assurance at the very least.9 Nonetheless, the PCR
9
In addition, although the PCR court did not consider Judge Cooper's Affidavit, the Affidavit is
part of the record before this Court. Significantly, Judge Cooper does not deny making this
statement in his Affidavit and openly admits he was inclined to sentence Petitioner to life prior to
37
court's decision that trial counsel were not deficient is supported by the record. Under the unique
circumstances of this case, trial counsels' interpretation of Judge Cooper's comments made their
advice to plead guilty more reasonable under the unique circumstances of this case. Indeed,
because the Court finds trial counsels' interpretation of Judge Cooper's remarks was reasonable
under the circumstances, their indication to Petitioner that he may have a better shot at a life
sentence if he pled guilty was equally reasonable.10 See Strickland, 466 U.S. at 689 ("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.").
Petitioner's pleading also suggests that any defense attorney working a capital case in
Richland County who pleads his client without an express assurance of a life sentence from the
judge is per se ineffective.11 Such a finding would directly contradict Strickland's presumption of
reasonableness, recognition of a "wide range" of reasonable professional assistance, and mandated
hearing all the evidence at the penalty phase and may have suggested as much to counsel through
various remarks. The Court does not doubt the sincerity of Judge Cooper's assertion that he did
not intend to convey a promise; however, the undisputed and reliable evidence of record supports
defense counsels' recitation of what Judge Cooper said during the ex parte meeting, and those
statements did, in fact, convey an assurance of a life sentence.
10
Petitioner asserts trial counsel misled him to believe Judge Cooper had promised to impose a
life sentence. See ECF No. 63 at 49. However, the record supports the PCR court's finding that
counsel never told Petitioner that Judge Cooper had made any promises and that Petitioner
understood from his conversation with counsel that a death sentence was still possible. This is
critical, as Petitioner's understanding of what Judge Cooper told defense counsel is dispositive on
the prejudice prong of the Strickland analysis.
11
The Court acknowledges that juries in Richland County are generally hesitant to impose a death
sentence. See ECF No. 39 at 72–73 (outlining the results of prior Richland County death penalty
cases).
38
context-specific review of attorney performance:
[A] 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." There are countless ways to provide
effective assistance in any given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.
Strickland, 466 U.S. at 689 (citations omitted). Thus, the Court finds the PCR court reasonably
applied Strickland in holding that trial counsel were not deficient.
Additionally, the Court finds Petitioner has failed to show the PCR court's prejudice finding
was unreasonable. The Sixth Amendment's guarantee of effective assistance of counsel applies
with equal force to critical pretrial matters, including the decision whether to plead guilty. See
Lafler v. Cooper, 566 U.S. 156, 165 (2012); Hill, 474 U.S. at 58. Strickland's two-part test governs
the analysis, but here, the prejudice prong "focuses on whether counsel's constitutionally
ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 59. "In other
words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a
reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial." Id. This inquiry "focuses on a defendant's decisionmaking" and
does not turn on the outcome of a defendant's actual criminal proceeding or potential outcome had
a defendant chosen to proceed to trial. Lee v. United States, __ U.S. __, 137 S. Ct. 1958, 1966
(2017).
The Supreme Court has cautioned that, because "the strong societal interest in finality has
'special force with respect to convictions based on guilty pleas,' . . . [c]ourts should not upset a plea
solely because of post hoc assertions from a defendant about how he would have pleaded but for
an attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate
39
a defendant's expressed preferences." Lee, 137 S. Ct. at 1967 (quoting United States v. Timmereck,
441 U.S. 780, 784 (1979)).
Here, the only contemporaneous evidence related to Petitioner's decision to plead guilty is
Petitioner's plea colloquy, during which, under oath, Petitioner indicated he understood that
pleading guilty meant Judge Cooper, rather than a jury, would decide his sentence; acknowledged
that Judge Cooper could either sentence him to life without parole or death; and affirmed that he
had not been promised either sentence in return for his plea. App. 18–20. Petitioner has not shown
any reason for the Court to doubt these representations and, in fact, re-affirmed these statements
in his PCR testimony. Accordingly, the Court agrees with the PCR court's conclusion that
Petitioner fails to show he suffered prejudice as a result of counsels' alleged deficiencies. See
Blackledge v. Allison, 431 U.S. 63, 73–74 (1977) ("[T]he representations of the defendant . . .
[during the plea hearing], as well as any findings made by the judge accepting the plea, constitute
a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court
carry a strong presumption of verity. The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the
record are wholly incredible."). Respondent's Motion for Summary Judgment is granted as to
Ground Five.
Ground Six – Involuntary Guilty Plea
In Ground Six, Petitioner alleges he entered his guilty plea involuntarily because he relied
on Judge Cooper's "implied assurances" of a life sentence in exchange for his plea. ECF No. 39
at 78–89. Petitioner clarifies that Ground Six "argues that his plea was involuntary because the
trial judge indicated to counsel that he would impose a life sentence if Mr. Allen pled guilty, and
40
Mr. Allen relied on that assurance," thus focusing "on the trial judge's misleading conduct and not
counsel's deficient performance." ECF No. 76 at 20. Petitioner claims the PCR court's decision
was based on an unreasonable determination of the facts because his decision to grant Judge
Cooper a protective order and quash the subpoena for his testimony resulted in a materially
incomplete record. ECF No. 63 at 61–65. As a result, Petitioner asserts the Court should review
this claim de novo. ECF No. 63 at 65.
Because a guilty plea involves the waiver of constitutional rights, it must be voluntary,
knowing, and intelligent. See Brady v. United States, 397 U.S. 742 (1970).
[A] plea of guilty entered by one fully aware of the direct consequences, including
the actual value of any commitments made to him by the court, prosecutor, or his
own counsel, must stand unless induced by threats (or promises to discontinue
improper harassment), misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor's business (e.g. bribes).
Id. at 755 (citation omitted). "Under this standard, a plea of guilty is not invalid merely because
entered to avoid the possibility of a death penalty." Id.
The Court is troubled by the procedural history of this case. The record of the ex parte
meeting supports defense counsels' interpretation of Judge Cooper's comments as a promise not to
impose a death sentence if Petitioner plead guilty. That finding inherently makes defense counsels'
advice to Petitioner to plead guilty a reasonable, strategic decision, which forecloses relief on
ineffective assistance of counsel grounds. However, that finding also begets the obvious question
of whether Petitioner's guilty plea was involuntary because of that promise.
During the guilty plea hearing, Petitioner responded to a series of questions about the
voluntariness of his plea. Petitioner acknowledged that Judge Cooper could impose either the
death penalty or a life sentence. App. 18–19. Petitioner further stated that no one promised him
41
he would receive either a sentence of death or life without parole. App. 19; see also App. 20
(stating that no one had promised Petitioner any specific sentence). During the PCR hearing,
Petitioner was asked, "[W]hen you [plead guilty], what sentence did you expect to receive?" App.
3494. Petitioner answered, "Well, I don't, I didn't expect to receive anything. I knew it could go
either way." Id.; see also App. 3498 ("Q: Okay, but you still said there were no promises made,
correct? A: Yes."). To that end, Petitioner testified that his attorneys told him about their meeting
with Judge Cooper and "said Judge Cooper said if I pled guilty in front of him I'd have a better
chance at a life sentence." App. 3495.
Defense counsels' testimony at the PCR hearing is in accord with Petitioner's testimony.
Pringle testified that she met with Petitioner the day after the ex parte meeting and told him "that
[she] thought that what Judge Cooper was trying to say is if [Petitioner] would plead guilty, that
he was going to give him a life sentence and that it was [her] advice that [Petitioner] should do
that." App. 3533. Pringle also told Petitioner "of [her] background with Judge Cooper and that
[she] really trusted him and . . . believed him and . . . didn't think he would trick [them] or mislead
[them] or do anything like that." Id. Specifically, however, Pringle testified that she did not use
the word "promise" or "guarantee" when meeting with Petitioner. App. 3533–34.
Therefore, under either a de novo or deferential standard of review, the fact remains that
neither Judge Cooper nor trial counsel made any promise or misrepresentation to Petitioner and,
thus, as demonstrated by Petitioner's responses during the plea colloquy and PCR evidentiary
hearing, he was not induced to plead guilty by any improper means. Put simply, while the only
evidence in the record supports a finding that defense counsel reasonably believed a promise had
been made, no such promise was relayed to Petitioner and Petitioner did not enter a guilty plea in
42
reliance on any such promise. As the PCR court noted, "[s]ometimes in state post-conviction relief
actions, the testimony of the [Petitioner] is the most persuasive. This is one of those times." App.
4201. There is nothing in the record to suggest "that his admissions in open court were anything
but the truth." Id. at 758.
The proceedings below are unusual in many ways, and this Court is troubled by what
occurred. On the one hand, Judge Cooper, perhaps unintentionally, conveyed an implicit assurance
to defense counsel to sentence Petitioner to life without parole. On the other hand, defense counsel
did not relay that assurance or promise to Petitioner prior to his guilty plea. Therefore, Petitioner
could not have relied on such a promise. In light of Petitioner's testimony during the guilty plea
and the PCR hearing, the Court must conclude that Petitioner's guilty plea was knowingly and
voluntarily entered based on strategically sound advice from his attorneys. Accordingly, the Court
is constrained to resolve the issues before it in light of the well-established case law governing
federal habeas corpus litigation.
Request for an Evidentiary Hearing & Motion for Discovery
Petitioner requests an evidentiary hearing "in order to hear from the trial judge himself to
resolve whether he did make statements implicitly assuring counsel that he would impose a life
sentence were Mr. Allen to plead guilty." ECF No. 63 at 65. In addition, Petitioner moves for
discovery of Judge Cooper's entire file on this case. ECF No. 85.
Under the AEDPA, evidentiary hearings are generally prohibited even when a habeas
petitioner has failed to develop the factual basis of a claim in his state court proceedings. 28 U.S.C.
§ 2254(e)(2); see Cullen v. Pinholster, 563 U.S. 170, 181–84 (2011) (recognizing both that "review
under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim
43
on the merits" and also that for claims for which the factual basis was not developed in state court
"§ 2254(e)(2) bars a federal court from holding an evidentiary hearing, unless the applicant meets
certain statutory requirements"). However, the statute itself creates an exception to the general
rule if the petitioner can show that the claim relies on a new, retroactive rule of constitutional law
or "a factual predicate that could not have been previously discovered through due diligence[,]"
and that "the facts underlying the claim would be sufficient to establish by clear and convincing
evidence that but for constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense." Id.
Thus, the Fourth Circuit has recognized:
A petitioner who has diligently pursued his habeas corpus claim in state court is
entitled to an evidentiary hearing in federal court, on facts not previously developed
in the state court proceedings, if the facts alleged would entitle him to relief, and if
he satisfies one of the six factors enumerated by the Supreme Court in Townsend v.
Sain, 372 U.S. 293, 313 (1963).
Juniper v. Zook, 876 F.3d 551, 563 (4th Cir. 2017) (quoting Conaway v. Polk, 453 F.3d 567, 582
(4th Cir. 2006)). The six Townsend factors are:
(1) the merits of the factual dispute were not resolved in the state hearing; (2) the
state factual determination is not fairly supported by the record as a whole; (3) the
fact-finding procedure employed by the state court was not adequate to afford a full
and fair hearing; (4) there is a substantial allegation of newly discovered evidence;
(5) the material facts were not adequately developed at the state-court hearing; or
(6) for any reason it appears that the state trier of fact did not afford the habeas
applicant a full and fair hearing.
Townsend, 372 U.S. at 313.
Petitioner's stated reason for requesting the hearing and discovery12—to receive additional
12
As to Petitioner's Motion for Discovery, ECF No. 85, the parties agreed that Judge Cooper's
counsel would review Judge Cooper's file and submit any documents relevant to the ex parte
meeting for the Court's in camera review. Judge Cooper's counsel—an employee of the South
44
evidence regarding what was said or not said by Judge Cooper during the ex parte meeting with
counsel—has no bearing on these claims.
What matters is Petitioner's perspective of the
circumstances supporting his decision to plead and Petitioner has consistently and repeatedly
asserted the basis for his plea on the record. Accordingly, the Court denies Petitioner's request for
an evidentiary hearing and motion for further factual development related to Grounds Five and
Six. See also Schriro v. Landrigan, 550 U.S. 465, 474 (2000) ("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."); Wolfe v. Johnson, 565 F.3d 140, 165 n.36 (4th Cir. 2009) ("'[G]ood cause' [for
discovery] will exist 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.'") (quoting Bracy v. Gramley, 520 U.S. 899, 908–09 (1997)).
For these reasons, Respondent's Motion for Summary Judgment is granted as to Grounds
Five and Six.
Preserved Portions of Ground Seven
In Ground Seven, Petitioner asserts his trial counsel were ineffective for putting forth an
incomplete mitigation presentation based on the false belief that Judge Cooper had agreed to give
Petitioner a life sentence. ECF No. 39 at 90–98. Specifically, Petitioner contends counsel should
Carolina Attorney General's Office—submitted several documents for the Court to review in
camera. ECF No. 87 at 8. The Court has reviewed these documents and DENIES Petitioner's
Motion for Discovery, ECF No. 85. In so ruling, the Court finds that there is not good cause for
production of the requested discovery, and the Court specifically concludes that Petitioner cannot
show that he would be entitled to relief if the requested documents were produced. These
documents have been included on the docket as a Court Only exhibit and can be found at Docket
Entry Number 89.
45
have: (1) called lay witnesses with firsthand knowledge of his abusive childhood, rather than
presenting that evidence through a social worker; (2) presented expert testimony to rebut evidence
suggesting Petitioner malingered his mental illness symptoms; and (3) investigated and presented
neuropsychological evidence of Petitioner's brain impairments. Id. Petitioner raised the first two
portions of this ground in his PCR application and/or on PCR appeal and Respondent asserts they
are preserved for review. However, the third portion is, admittedly, defaulted. The Court will
address the preserved portions now and the defaulted portion further below.
Under Strickland,
[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after
less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation. In
other words, counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes that particular investigation unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel's judgments.
466 U.S. 690–91. Thus, counsel must conduct a reasonable investigation, thorough enough to
make an informed decision regarding which mitigating evidence to present. In assessing counsel's
investigation, the Court "must consider an objective review of their performance, measured for
'reasonableness under prevailing professional norms,' which includes a context-dependent
consideration of the challenged conduct as seen 'from counsel's perspective at the time.'" Wiggins
v. Smith, 539 U.S. 510, 523 (2009) (quoting Strickland, 466 U.S. at 688, 689).
Further, to establish a Sixth Amendment violation, Petitioner "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
46
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 'reweigh it against the evidence in aggravation.'" Porter,
558 U.S. at 41 (quoting Williams v. Taylor, 529 U.S. 362, 397–98 (2000)).
Evidence of Childhood Trauma and Abuse
During the penalty phase, trial counsel called several witnesses who testified about
Petitioner's difficult upbringing. Valerie Schultz, a guidance counselor at Petitioner's high school,
testified that she became aware that Petitioner had been thrown out of his home and was living in
the woods. App. 0928. She indicated she and several other teachers tried to help him. App. 0928–
29. Ms. Schultz testified Petitioner demonstrated academic aptitude and potential but always kept
to himself and appeared sad. App. 0933–36. She described a marked decline in Petitioner's
hygiene, which she linked to living outside of a "home situation" for so long. App. 0931–32.
Hope Spillane, Petitioner's high school English teacher, described Petitioner as a good
student with immature social skills who struggled to fit in with his peers. App. 0956–59. She also
remembered some deterioration in Petitioner's appearance later in his junior year. App. 0961–62.
Margaret Britt, another teacher at Petitioner's high school, remembered Petitioner
struggling to afford snacks and as being in need of attention. App. 0984–85. She recalled
Petitioner as a good kid, but awkward and withdrawn, and also described a time when Petitioner's
hygiene had steeply declined and he appeared rattled. App. 0986–89, 1002.
Cheryl Hart, Petitioner's neighbor when he was seven to nine-years-old, was friends with
Petitioner's mother and described her financial problems. App. 1765–66. She testified that
Petitioner's step-father beat his mother while she was pregnant with his younger siblings and that
47
the family did not have heat, food, or electricity for a period of time. App. 1766. Ms. Hart recalled
Petitioner's mother worked all day and did not return home until 2:00 a.m., leaving Petitioner to
care for himself and his three younger siblings. App. 1767. She described observing Petitioner
and his siblings drinking water from a gutter, hearing Petitioner's mother beating the children, and
seeing a mark on Petitioner's sister's face where their mother had hit her with a belt buckle. App.
1768–69.
Petitioner's friend and neighbor, Brian Santiago, and Brian's parents testified that Petitioner
was repeatedly kicked out of his house for extended periods of time and forced to live anywhere
he could find shelter, including the bushes, a treehouse, an abandoned house, and a McDonalds
play area. App. 1785–87, 1806, 1817–18. The Santiagos took Petitioner in for a while and
described him as grateful, respectful, and quiet. App. 1788, 1808. They contacted Petitioner's
father but he also refused to help. App. 1803–04. The Santiagos also noticed a decline in
Petitioner's demeanor over time and eventually cut ties with him. App. 1802–03, 1807–08, 1815–
16.
Edwina Walker, who spent time with Petitioner and his mother when he was young,
testified about several incidents of abuse, including witnessing Petitioner's mother beating him
with a belt. App. 1861–63. She indicated Petitioner's mother treated him much worse than her
other children. App. 1863–64.
Deborah Grey, a licensed social worker, presented an extensive and exhaustive account of
Petitioner's life history, from birth until right before the murders. App. 1035–318. Ms. Grey
reviewed over 1,400 pages of records relating to Petitioner's educational history, mental health,
medical and dental history, employment, family court proceedings, and time in prison. App. 1043–
48
48. In addition, Ms. Grey interviewed Petitioner and his mother, father, brothers, and two aunts.
App. 1204–08. She attempted to talk to additional family members, but they refused to speak with
her. App. 1204–08.
Ms. Grey's testimony detailed specific instances of abuse and neglect throughout
Petitioner's childhood and described his resulting mental decline. See App. 1050–1217.
In his PCR application, Petitioner alleged his trial counsel were ineffective for failing to
present mitigation evidence of his childhood trauma and abuse. See ECF No. 22-2 at 47. At the
PCR evidentiary hearing, Petitioner presented testimony from the following additional lay
witnesses regarding his childhood and his abusive mother: Bennie Richard Gordon, Petitioner's
step-brother; Phyllis Blake, Petitioner's step-cousin; Kirsten Kirkland, Petitioner's cousin; Martell
Whitaker, who was incarcerated with Petitioner for a time; and Peggy Clore, Petitioner's music
teacher who also taught several of Petitioner's siblings. App. 3765–878.
Petitioner lived with his father and Mr. Gordon for approximately two years when he was
fifteen or sixteen. App. 3767. Mr. Gordon testified that Petitioner's father regularly beat Petitioner
with a belt, got into physical altercations with Mr. Gordon's mother, and had no interest in spending
time with the boys. App. 3769–73. He portrayed Petitioner as a good big brother and student
with an active social life. App. 3774–77.
Ms. Blake testified that she met with Petitioner's trial attorneys in 2004 but told them she
was busy and did not wish to be involved. App. 3788. However, she stated she would have
testified at Petitioner's trial if she had been subpoenaed. App. 3788–89. Ms. Blake testified
regarding the maternal side of Petitioner's family tree and described multiple generations of
abusive parents. She indicated Petitioner's mother and her siblings were abused and neglected by
49
their mother and they and their children and many of Petitioner's relatives exhibited odd,
sometimes violent, behavior and got into legal trouble. App. 3794–802. Ms. Blake described
Petitioner's mother as both physically and mentally abusive to her children and said she was
particularly hard on Petitioner and never showed him any affection. App. 3802–04, 3807. She
also recalled feeling afraid of Petitioner, thinking he was scary, and having a feeling something
was wrong with him. App. 3805–06. However, she felt Petitioner never had a chance at life
because of his upbringing and stated executing him would have a personal impact on her. App.
3807–08.
Ms. Kirkland, Ms. Blake's daughter, recalled witnessing Petitioner's mother's harsh
treatment of her children. App. 3824–25. She went to high school with Petitioner for one year
and described other kids, including his cousins, bullying Petitioner. App. 3826–27. Ms. Kirkland
stated she was twenty-four years old at the time of Petitioner's trial and was not contacted by
Petitioner's attorneys. App. 3827–28. She indicated she would have testified if asked and that
Petitioner's execution would have a personal impact on her. App. 3828–29.
Mr. Whitaker was incarcerated with Petitioner for seven months when Petitioner was
nineteen years old. He stated Petitioner was intelligent, often studied the dictionary, and that he
had a rough childhood and regretted not being able to protect his mother from his stepfather's
abuse. App. 3838–39. He described Petitioner as the little brother he never had and said
Petitioner's trial team never contacted him. App. 3841.
Ms. Clore taught Petitioner music in elementary school and then taught his siblings. App.
3860. She stated that one of Petitioner's attorneys for his North Carolina case interviewed her, but
not his South Carolina attorneys. App. 3860–61. Ms. Clore testified she did not have disciplinary
50
problems with Petitioner but that his brothers were a handful. App. 3864. When she mentioned
their behavior to the guidance counselor, she was told not to send a note home because their mother
would punish them by withholding food. App. 3865. Ms. Clore later learned the cafeteria workers
would send food home with the children because they would be locked out of the house after
school until their mother got home. App. 3865–66.
Quoting from Petitioner's own appellate brief, with direct references to the record, the PCR
court detailed a significant portion of trial counsels' mitigation presentation, including testimony
from the Santiagos, Petitioner's neighbors, and Ms. Grey. ECF No. 22-2 at 47–52.
The PCR court concluded:
The above recitation details just a portion of the mitigation case presented by
defense counsel during the mitigation phase as summarized by Applicant's own
appellate counsel in the direct appeal. Defense counsel presented numerous
witnesses at that stage including three of Applicant's teachers from high school.
The record shows that defense counsel presented an extensive mitigation case and
giving great focus to Applicant's childhood. While Applicant presented several
different witnesses in the PCR action, the evidence in PCR was simply not
particularly compelling or of great import. Applicant's PCR claim on the mitigation
issue is hereby denied.
ECF No. 22-2 at 52. In addition, the PCR court specifically found, "The manner the defense
presented the evidence in mitigation was informed by professional decisions, not the product of
neglect, in an attempt as a matter of strategy to convince Judge Cooper in a cogent manner that
life was the appropriate sentence" and "[c]ounsel were not deficient in their mitigation presentation
concerning not eliciting so-called execution impact evidence or additional evidence concerning
the Applicant's childhood experiences." ECF No. 22-2 at 6, 7.
Petitioner contends the PCR court unreasonably applied Strickland because "the idea that
the post-conviction evidence was cumulative is relevant only to prejudice, not to deficient
51
performance" and the court failed to re-weigh the combined PCR and trial mitigation evidence
against the evidence in aggravation. ECF No. 63 at 74–77. Regarding trial counsels' performance,
Petitioner asserts they unreasonably failed to investigate and present the lay witness testimony
presented at PCR. Id. at 67. He continues to contend that this testimony provided a "fuller picture"
of his abusive childhood and "might have been more convincing than the account conveyed by the
mitigation specialist." Id.
Notably, while Petitioner ostensibly challenges trial counsels' investigation, he does not
specify what further actions they should have taken. The Court assumes Petitioner's assertion is
that counsel should have contacted and interviewed the witnesses who testified at PCR. However,
PCR testimony shows that the trial team did contact Ms. Blake, who refused to speak with them,
and had Ms. Clore's potential statement through Petitioner's North Carolina counsel.13 In addition,
trial counsel testified at PCR that they interviewed Petitioner's brothers and sister, who spoke
openly to them and the mitigation specialist about the abuse but were reluctant to testify. App.
3601–04. Counsel testified the defense team contacted Mr. Gordon but decided not to call him as
a witness because they "felt like there was more proof of abuse in [Petitioner's] life f[rom] people
who were here than from his family outside." App. 3929–32.
Further, despite Petitioner's disagreement, after a thorough review of the evidence
presented at trial and at PCR, the Court finds the PCR court's assessment reasonable. While the
PCR evidence may have added some details of Petitioner's abusive and neglectful upbringing, it
did not significantly "alter[] the sentencing profile presented to the sentencing judge." Strickland,
13
In addition, it appears Ms. Grey interviewed Ms. Clore. See App. 1092–93 (referring to a Ms.
Peggy Clora who taught all of the Allen children).
52
466 U.S. at 700. It is not unreasonable or against prevailing professional norms for counsel to rely
on a qualified mitigation investigator and other experts. See Rhodes v. Hall, 582 F.3d 1273, 1283
(11th Cir. 2009) ("Since . . . counsel hired investigators who interviewed potential witnesses and
shared all of their information with counsel, we cannot say that counsel performed deficiently by
delegating the mitigation investigation to them.").
In addition, as the Supreme Court has
recognized, "there comes a point at which [more evidence] can reasonably be expected to be only
cumulative, and the search for it distractive from more important duties." Van Hook, 558 U.S. at
11; see also Rompilla, 545 U.S. at 389 ("Questioning a few more family members and searching
for old records can promise less than looking for a needle in a haystack, when a lawyer truly has
reason to doubt there is any needle there."). Thus, trial counsel are not required to "investigate
every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist
the defendant at sentencing," Wiggins, 539 U.S. at 533, but, rather, must uphold their "duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary," Strickland, 466 U.S. at 691. Once counsel has conducted their
investigation, decisions concerning the calling of witnesses are matters of strategy and ordinarily
cannot constitute ineffective assistance. Jones v. Barnes, 463 U.S. 745, 808 (1983).
Based on the Court's review of the evidence and relevant precedent, the PCR court's
decision does not "lie well outside the boundaries of permissible difference of opinion." Tice v.
Jonson, 647 F.3d 87, 108 (4th Cir. 2011) (holding "[m]indful of the deference owed under
AEDPA, we will not discern an unreasonable application of federal law unless 'the state court's
decision lies well outside the boundaries of permissible differences of opinion.'") (quoting
Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006)). Accordingly, the Court finds
53
Petitioner has failed to show the PCR court's decision was contrary to, or an unreasonable
application of, clearly established federal law.
Additional Mental Health Experts – Dr. Hilkey and Dr. Griffin
In addition, Petitioner asserts trial counsel failed to thoroughly investigate and present
evidence of his severe mental illness and brain impairments. ECF No. 39 at 93. Specifically, in
this preserved portion of the claim, Petitioner contends trial counsel should have called Dr. James
Hilkey and Dr. Adrian Griffin to "explain how [Petitioner's] history of embellishing or
exaggerating symptoms on some occasions did not rule out that [he] was indeed severely mentally
ill." Id. Dr. Hilkey and Dr. Griffin both testified at Petitioner's North Carolina sentencing and
were available to testify at the South Carolina proceeding.
Petitioner did not raise this claim in his PCR application and, thus, the PCR court did not
address it in its order. Petitioner's PCR counsel deposed Dr. Hilkey and provided that deposition,
along with Dr. Hilkey's 2003 psychological evaluation of Petitioner and 2004 addendum to the
evaluation as exhibits in the PCR action. See App. 4555–609. Although Dr. Griffin had passed
away by the time of Petitioner's PCR action, PCR counsel filed as an exhibit the entire transcript
of Petitioner's North Carolina proceeding, including Dr. Griffin's testimony. See App. 5123–61.
Petitioner raised this claim in his amended petition for writ of certiorari, ECF No. 22-6 at
69–76, and the State argued it was procedurally barred and also lacked merit, ECF No. 22-7 at 21–
22. The Supreme Court of South Carolina summarily denied the petition, but stated the denial was
"on the merits." ECF No. 22-9. Accordingly, Petitioner exhausted this claim by fairly presenting
it to the state's highest court. However, it is not properly preserved. Respondent does not assert
this portion of Ground Seven is procedurally barred but contends it is preserved for review. ECF
54
No. 50 at 25. And both parties appear to analyze this claim under § 2254(d)'s deferential standard.
However, the Court is left without a state court decision to which to defer. Out of an abundance
of caution, the Court has conducted a de novo review of this portion of Ground Seven and finds it
lacks merit. Thus, the Court would reach the same conclusion under a more deferential review.
Petitioner's mental status was hotly contested throughout the penalty phase of his trial,
resulting in a textbook battle of the experts. Ms. Grey spent a considerable portion of her testimony
discussing Petitioner's erratic behaviors, psychiatric admissions, suicide attempts, mental illness
risk factors, and his mental status leading up to the murders. See App. 1034–216.
Trial counsel then presented four mental health experts. Dr. Richard Harding, an expert in
child psychiatry, testified regarding his treatment of Petitioner's rumination disorder14 and general
opinion of his overall mental status. See App. 1321–75. Petitioner was referred to Dr. Harding in
the fall of 1997 and by then had experienced periods of rumination for almost a decade. App.
1327. Shortly after he began treatment with Dr. Harding, Petitioner was admitted to a psychiatric
unit after a confrontation with his mother. App. 1329–30. Dr. Harding was Petitioner's attending
physician and diagnosed him with depression, rumination, and identity disorder. App. 1330–31.
About eight days later, Petitioner was again hospitalized after a perceived suicide attempt. App.
1331–32. At the end of that hospitalization, Dr. Harding again diagnosed depression, rumination,
and identity disorder. App. 1337. Dr. Harding testified that Petitioner's behaviors were not
consistent with anti-social personality disorder but could foreshadow the possibility of a more
14
According to Dr. Harding's testimony, rumination is a very uncommon disorder "that is found
mostly in very young children from one to three where children are able to bring up stomach
contents into their mouths and generally re-swallow them." App. 1324. From a psychiatric
standpoint, it is a "form of self comfort," "a way of keeping control on emotions, a calming kind
of activity that is effective for the people who do it." App. 1325–26.
55
serious mental illness, like schizophrenia. App. 1338–39.
Dr. George Corvin, an expert in general and forensic psychiatry who also testified at
Petitioner's North Carolina sentencing, reviewed Petitioner's medical records and evaluated him
on five separate occasions. App. 1387–90.
Dr. Corvin opined Petitioner suffered from
schizophrenia and explained why he had previously diagnosed Petitioner with schizoaffective
disorder. App. 1390–92. Dr. Corvin specifically testified he did not believe Petitioner was
malingering and thoroughly explained his opinion. App. 1419–24.
Further, Dr. Corvin had
reviewed reports from several of the State's experts finding malingering and discussed, at length,
why he disagreed with those findings. App. 1425–42, 1506–10.
Dr. Pamela Crawford, an expert in forensic psychiatry, reviewed eight to ten thousand
pages of records, interviewed 23 people, and interviewed Petitioner six times and ultimately
diagnosed Petitioner with schizophrenia. App. 1551. Regarding malingering, Dr. Crawford
testified:
there is certainly at some point in North Carolina where he is exaggerating or
feigning symptoms. I think there's really no question about that. Where - - and I
say exaggerating and feigning which doesn't necessarily mean malingering. It
doesn't necessarily mean he's doing it to avoid the death penalty. But I think that
he is exaggerating or citing symptoms that either aren't real or they're exaggerated
in some way.
App. 1586–87. She further explained:
Now, malingering or feigning symptoms does not mean you also do not have a
mental illness. And that's the other thing. We have numerous times mentally ill
people who sometimes minimize symptoms, which I think he did at one point, and
sometimes exaggerate symptoms. It doesn't mean there's not a mental illness. But
it means you've got to look through all that stuff to determine what is in the mental
illness and what is the exaggeration of it. So that's something that's been very
important in this case and difficult in this case.
App. 1587.
56
Dr. Crawford discussed in detail why she believed Petitioner was not faking his reports of
hallucinations. App. 1588–605. As part of that discussion, Dr. Crawford referenced her interview
with Dr. Griffin and Dr. Griffin's opinion that Petitioner was clearly psychotic. App. 1592–97.
Dr. Crawford noted:
[W]hat's significant about this is, Dr. Griffin who is not a forensic psychiatrist in
this issue, who was not involved in this issue recognized [Petitioner] as being
psychotic and started him on medication. Against, that's something other than just
[Petitioner's] report. And I asked him is it possible he was malingering, and he says
absolutely not. He could tell that this person was mentally ill. And he treated
people in the jail. So that was significant to me.
App. 1596–97.
Dr. Crawford also directly addressed some of the State's experts' opinions finding
malingering and anti-social personality disorder. App. 1599–602, 1627–37, 1653–54, 1674–79.
She explained her disagreement with those findings and discussed Petitioner's results on the
Structured Interview of Reported Symptoms ("SIRS")—a test to assess whether a patient is
malingering. App. 1631–33. She testified that when Petitioner was given the test in North
Carolina, the results indicated he was exaggerating, but not malingering, and again emphasized
that the results did not "rule out that he was mentally ill, but there may be some exaggeration of
symptoms." App. 1632. When Petitioner was given the same test three weeks prior to his South
Carolina trial, the results showed no evidence of malingering. Id.
Dr. Donna Schwartz-Watts, an expert in forensic and correctional psychiatry, met with
Petitioner several times and referred him for civil commitment and opined Petitioner suffered from
schizophrenia. App. 1831–32. On cross-examination, Dr. Schwartz-Watts stated she did not
believe Petitioner was malingering. App. 1846.
In response, the State called several experts who opined Petitioner was malingering, each
57
of whom was subject to cross-examination by trial counsel.
See App. 1983–84, 2010–59
(testimony of Dr. James Ballenger regarding malingering); App. 2229–30, 2247–88 (crossexamination of Dr. Ballenger); App. 2106, 2118–36 (testimony of Dr. Karla deBeck regarding
malingering); App. 2140–98 (cross-examination of Dr. deBeck); App. 2325–43 (testimony of Dr.
David Hattem regarding malingering); App. 2343–44 (cross-examination); App. 2349–65
(testimony of Dr. Camilla Tezza regarding malingering); App. 2365–86 (cross-examination); App.
2404–07 (testimony of Dr. Majonna Mirza regarding malingering); App. 2407–31 (crossexamination). Notably, the State's experts also testified that people can malinger but still suffer
from an underlying mental illness. App. 2127–28, 2175, 2340.
In his sentencing order, Judge Cooper stated he had "listened to and read the accounts of
all of the psychiatrists and psychologists on this case," including Dr. Hilkey. App. 2531. He
outlined the disagreement between the experts and found, "These contrary opinions lead me to no
firm conclusions as to Mr. Allen's mental state at this time." App. 2531–33.
The evidence introduced at PCR showed Dr. Hilkey, a forensic psychologist, spent
considerable time evaluating Petitioner prior to the North Carolina sentencing and administered a
battery of psychological tests. App. 4966–67, 4971, 5044. Dr. Hilkey opined Petitioner was
seriously mentally ill and suffered from a schizophrenic spectrum disorder. App. 4970. Dr. Hilkey
acknowledged that his tests, like the prosecution's, showed Petitioner tended to exaggerate his
symptoms. App. 4968. He testified that he paid close attention to those results and even had two
of the tests peer-reviewed. Id. On one test, a national expert confirmed the results indicated "a
person who has some exaggeration, but a person who was suffering from schizophrenia and was
psychotic." App. 4968–69. Dr. Hilkey explained:
58
[O]ften times individuals will exaggerate, especially early in their illness, as a way
to draw attention to their illness to make sure that people see that they in fact need
help. And that is my interpretation of the results of those tests that are exaggerated.
It is in many ways a plea for help or a way of addressing or calling attention to the
problems that he had.
When you look at the profiles you'll see that some of the clinical scales are elevated,
some of them are not. And this tells me that there was, the symptoms that were real
and true for Mr. Allen were endorsed. Other scales that were also pathological that
did not apply were not endorsed. And this pattern of responses would be consistent
with people who are making a real attempt to convey the problems that they have,
albeit some of those were exaggerated in ways that may be trying to draw attention
to their illness and their pain.
App. 4969.
On cross-examination, Dr. Hilkey directly addressed the issue of malingering at length and
maintained his position that many of Petitioner's test results indicated he exaggerated symptoms,
but did not rule out his diagnosis of a chronic, severe mental illness. App. 5028–49.
Sometime after Petitioner's North Carolina sentencing, Dr. Hilkey was contacted by
Petitioner's South Carolina trial counsel. App. 4561. Dr. Hilkey met with trial counsel and
reevaluated Petitioner, at their request. App. 4563–64. Trial counsel had Dr. Hilkey on standby
during the South Carolina proceeding but did not call him to testify. App. 4566, 4570, 4581.
During his deposition, Dr. Hilkey stated he was prepared to testify as he did in North Carolina—
that there was some exaggeration but that Petitioner was chronically and severely mentally ill.
App. 4568.
Dr. Griffin was a psychiatrist with a Surry County, North Carolina mental health center
who evaluated Petitioner after he exhibited bizarre behavior in jail. App. 5123–24. He was not
retained by either side and was not compensated for his testimony. App. 5147. Regarding his first
meeting with Petitioner, Dr. Griffin testified:
59
When I saw him he was delusional. False beliefs. Difficulty in comprehending
what was happening. I only saw him basically 10 or 15 minutes the first time. But
I was worried enough to start him on a medication called Abilif[y]. Abilif[y] is one
of our new antipsychotic medications, to reintegrate thought processes. Because I
look at people how they interact with me. And I felt that he had what we would
call frontal lobe disassociation. Frontal lobe is here. Responsible for your higher
mental faculties, planning, rationalization, consideration, courtesy, thoughtfulness.
That was not there.
App. 5129.
Dr. Griffin met with Petitioner two more times and opined he exhibited signs of
schizoaffective and bipolar disorders. App. 5126, 5135. Dr. Griffin formed his opinions solely
based on his personal interactions with Petitioner. He did not review any prior testing or reports
or speak with any of the other mental health professionals who had treated Petitioner, nor had he
reviewed Petitioner's confession or the video of the North Carolina murders. App. 5147–48, 5154–
55.
Dr. Griffin did not offer an opinion as to whether Petitioner was malingering, except to
state that, in his experience, people with psychotic illnesses tend to attempt to cover them up. App.
5139. He explained: "If you're flawdly (sic) psychotic - - there's a question we always debate: If
you're psychotic you cannot turn psychosis on and off at will. So you cannot be a remarkably good
actor. I'm going to act psychotic today and not tomorrow. That's not psychosis." Id. Notably,
Dr. Griffin did not respond or offer rebuttal when the prosecution informed him other mental health
professionals had diagnosed Petitioner with anti-social personality disorder and malingering. See
App. 5147–52.
The evidence at PCR and sentencing suggest trial counsel were aware of Dr. Griffin and
their team was in contact with him. See, e.g., App. 1592 (Dr. Crawford refers to interviewing Dr.
Griffin); App. 3538–40 (Pringle testifying regarding Dr. Griffin's North Carolina testimony and
60
stating she went to see him and interviewed him and thought he would be an excellent witness);
App. 3636 (Lominack testifying he specifically remembered Dr. Griffin, thought he was a good
witness, and would have called him if he had not been under the impression Judge Cooper was
going to give Petitioner a life sentence).
To the extent Petitioner asserts trial counsel conducted a deficient mental health
investigation because they did not discover Dr. Hilkey and Dr. Griffin, that claim is clearly without
merit. The record unequivocally shows that trial counsel and their team were well aware of Dr.
Hilkey and Dr. Griffin and the potential content of their testimony. Thus, Petitioner's precise claim
is that trial counsel were deficient for not calling these two witnesses in the South Carolina
proceeding and that Petitioner was prejudiced because they did not testify. Petitioner has failed to
show prejudice and is not entitled to relief on this claim. See Strickland, 466 U.S. at 687 ("Unless
a defendant makes both showings [deficiency and prejudice], it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary process that renders the result
unreliable.").
Regardless of trial counsels' reason for not presenting Dr. Hilkey and Dr. Griffin, the
testimony they could have offered "would barely have altered the sentencing profile presented to
the sentencing judge." Strickland, 466 U.S. at 700. During sentencing, multiple experts on both
sides explained that Petitioner's malingering or exaggerating symptoms did not preclude a finding
of severe mental illness. Dr. Crawford in particular offered lengthy rebuttal testimony concerning
the state's experts' opinions. Dr. Crawford also discussed Dr. Griffin's findings and why his
opinion in particular was significant. Further, Dr. Griffin's testimony added little, if anything, to
the malingering debate. Dr. Hilkey's testimony may have reinforced Dr. Crawford's but does not
61
add anything of substance to the information already before the court. Moreover, Judge Cooper
stated on the record that he considered Dr. Hilkey's findings in reaching his decision and Petitioner
has offered nothing to dispute that record evidence. Thus, additional testimony from Dr. Hilkey
and Dr. Griffin would have been cumulative and largely insignificant. See Wong v. Belmontes,
558 U.S. 15, 23 (2009) (finding no prejudice where cumulative evidence would have "offered an
insignificant benefit, if any at all").
Petitioner has not shown how that insignificant benefit could have tipped the scales in his
favor. As discussed above, while Judge Cooper thoroughly considered all of the evidence before
him concerning Petitioner's mental illness, he found only that the evidence did not convince him
Petitioner suffered from a severe mental illness when he committed the crimes, but if Petitioner
did have schizophrenia at the time, his illness "did not control his mind to such a degree as to
exonerate or lessen the culpability of his actions." App. 2529–31. Similarly, Judge Cooper
expressed ambivalence regarding Petitioner's mental status leading up to the crimes and at the time
of sentencing. App. 2529–30, 2533.
Petitioner has not shown how additional evidence from Dr. Hilkey and Dr. Griffin would
have altered Judge Cooper's analysis. Further, there is no evidence, nor does Petitioner assert, that
if Judge Cooper had found Petitioner mentally ill, he would not have still imposed a death sentence;
accordingly, Petitioner has not shown "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." See Strickland, 466
U.S. at 694. Petitioner's assertion of mental illness, while a key element of the sentencing
proceeding, was not the only factor Judge Cooper considered. Judge Cooper also found significant
the extremely aggravated nature of Petitioner's crimes, his seemingly nonchalant attitude about his
62
actions, his expressed desire to be a serial killer, and his repeated indications that he would
continue to kill if given the opportunity. See App. 2549–52. And Judge Cooper's comment that,
even if Petitioner suffered from schizophrenia, it did not lessen his culpability, App. 2529–31,
suggests an affirmative finding that Petitioner suffered from severe mental illness may not have
convinced him to give Petitioner a life sentence.
For these reasons, having independently "reweigh[ed] the evidence in aggravation against
the totality of available mitigating evidence," Wiggins, 539 U.S. at 534, the Court finds Petitioner
has failed to show his trial counsel were ineffective for not calling Dr. Hilkey and Dr. Griffin at
sentencing, and he is not entitled to relief on this claim.
Accordingly, Respondent's Motion for Summary Judgment is granted as to these two
portions of Ground Seven.
Ground Eight
In Ground Eight, Petitioner claims South Carolina's death penalty statute, S.C. Code Ann.
§ 16-3-20(B), violates the Sixth, Eighth, and Fourteenth Amendments by forcing a capital
defendant who pleads guilty to give up his right to have a jury decide his sentence.15 ECF No. 39
15
S.C. Code Ann. § 16-3-20(B) provides:
When the State seeks the death penalty, upon conviction or adjudication of guilt of
a defendant of murder, the court shall conduct a separate sentencing proceeding. In
the proceeding, if a statutory aggravating circumstance is found, the defendant must
be sentenced to either death or life imprisonment. . . . The proceeding must be
conducted by the trial judge before the trial jury as soon as practicable after the
lapse of twenty-four hours unless waived by the defendant. If trial by jury has been
waived by the defendant and the State, or if the defendant pleaded guilty, the
sentencing proceeding must be conducted before the judge. In the sentencing
proceeding, the jury or judge shall hear additional evidence in extenuation,
mitigation, or aggravation of the punishment.
63
at 98–102. Petitioner raised this issue through pretrial motions, which were denied, and again on
direct appeal. See App. 3177–86. The Supreme Court of South Carolina analyzed and rejected
Petitioner's Eighth and Fourteenth Amendment arguments but did not directly address Petitioner's
Sixth Amendment claim other than through reference to prior decisions rejecting similar
assertions. See Allen, 687 S.E.2d at 25–26.
Sixth Amendment Claim
Petitioner asserts § 16-3-20(B) violates a capital defendant's Sixth Amendment right to
have a jury, rather than a judge, find any fact necessary to the imposition of a death sentence. ECF
No. 39 at 99.
Because the state court did not directly address the merits of this portion of Ground Eight,
Petitioner asserts the Court should review his Sixth Amendment claim de novo. ECF No. 63 at
78–79. Alternatively, Petitioner asserts the state court's determination, if it did address the merits,
was contrary to and an unreasonable application of clearly established federal law, specifically,
the United States Supreme Court's decisions in Ring v. Arizona, 536 U.S. 584 (2002), and Hurst
v. Florida, __ U.S. __, 136 S.Ct. 616 (2016). Id. Petitioner's argument fails under either standard
of review.
This District has considered this argument twice before and found South Carolina's death
penalty statute complies with the Sixth Amendment. See Mahdi v. Stirling, No. 8:16-cv-3911TMC, 2018 WL 4566565, at *41–42 (D.S.C. Sept. 24, 2018) (finding "South Carolina's capital
sentencing procedures have not violated Mahdi's constitutional rights" where Mahdi pled guilty
and agreed to the facts as stated by the State during his plea); Wood v. Stirling, No. 0:12-cv-3532DCN-PJG, 2018 WL 4701388, at *15–18 (D.S.C. Oct. 1, 2018), Report and Recommendation
64
adopted by 2019 WL 4257167 (D.S.C. Sept. 9, 2019) (finding the state court did not err in finding
South Carolina's death penalty statute does not violate either the Sixth or Fourteenth Amendment).
Petitioner has not distinguished his case from Mahdi or Wood or provided the Court with novel
argument warranting reconsideration of its prior holdings.
In addition, the Fourth Circuit has rejected the same challenge to Virginia's capital
sentencing scheme, which is functionally equivalent to South Carolina's,16 finding Ring did not
hold "that a defendant who pleads guilty to capital 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). Petitioner "acknowledges" the
Fourth Circuit's decision in Lewis and that Virginia's statutory scheme is "comparable" to South
Carolina's, but "contends that Lewis is inconsistent with Ring," without further elaboration. ECF
No. 63 at 78. Petitioner's disagreement with the Fourth Circuit's conclusion is not reason for the
Court to disregard the Fourth Circuit's clear position on this issue.
For these reasons, and those stated in Mahdi and Wood, the Court finds Petitioner has not
shown a Sixth Amendment violation or that the state court's decision was an unreasonable
application of federal law and is not entitled to habeas relief on this claim.17
16
Under Virginia's capital sentencing scheme, when a defendant is charged with a death-eligible
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 a defendant pleads guilty and
waives his right to a jury determination of guilt, a judge conducts the sentencing proceeding alone
and determines the existence of any aggravating factors. See Va. Code Ann. § 19.2-257.
17
While Respondent's Motion for Summary Judgment was pending, the Supreme Court of the
United States decided McKinney v. Arizona, 140 S. Ct. 702 (Feb. 25, 2020), which addresses a
similar issue. In McKinney, the Court clarified "Under Ring and Hurst, a jury must find the
aggravating circumstance that makes the defendant death eligible. But importantly, in a capital
sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge)
65
Eighth and Fourteenth Amendment Claim
Petitioner further asserts South Carolina's capital sentencing structure violates his Eighth
and Fourteenth Amendment rights by denying him the right to present a jury with the mitigating
evidence that he pled guilty and, therefore, accepted responsibility for his crimes. ECF No. 39 at
99–102 (citing Lockett v. Ohio, 438 U.S. 586, 604 (1978)).
The Supreme Court of South Carolina found this claim lacked merit. See Allen, 687 S.E.2d
at 25–26.
After summarizing its prior decisions upholding the death penalty statute's
constitutionality under the Sixth Amendment, the court found:
Contrary to Allen's assertion, the statute's requirement that the trial court conduct
the sentencing does not deprive him of due process, nor does it result in cruel and
unusual punishment. S.C. Code Ann. § 16-3-20(C) requires that, in capital
sentencing proceedings conducted by the judge alone, the judge consider any
mitigating circumstances allowed by law and must also consider the enumerated
statutory aggravating and mitigating circumstances. Although Allen would suggest
otherwise, he was indeed permitted to offer evidence of his remorse, and his
acceptance of responsibility, to the trial court. Further, the trial court was required
to receive evidence in extenuation, mitigation, and aggravation of punishment, and
was required to find the existence of statutory aggravating circumstances beyond a
reasonable doubt prior to imposing a sentence of death. S.C. Code Ann. § 16-320(B) & (C).
Contrary to Allen's contention, the sentencer was not precluded from considering,
as a mitigating factor, that he accepted responsibility and showed remorse. Allen's
Eight[h] and Fourteenth amendment claims are without merit.
Id.
Petitioner argues the state court decision is an unreasonable application of federal law
is not constitutionally required to weigh the aggravating and mitigating circumstances or to make
the ultimate sentencing decision within the relevant sentencing range." Id. at 707. However, in
McKinney, the defendant was convicted by a jury and then sentenced by the judge, id. at 705—06,
and the Court did not address a situation like this one where a defendant pleads guilty, waives his
right to a jury trial, and admits the facts supporting the finding of aggravating circumstances.
66
because the statute forced him to "choose between his Eighth Amendment right to present the
mitigating effect of acceptance of [responsibility] in the form of a guilty plea and his Sixth
Amendment right to a jury trial." ECF No. 63 at 77–80. Petitioner contends the state court's
analysis is contrary to the Supreme Court of the United States' finding in United States v. Jackson
that the death penalty provision of the Federal Kidnaping Act was unconstitutional because it
"impose[d] an impermissible burden upon the exercise of a constitutional right." 390 U.S. 570,
572 (1968).
Essentially, Petitioner asserts an Eighth Amendment right to have a jury consider the
mitigating impact of his guilty plea. However, Petitioner has not identified Supreme Court
precedent establishing such a right. "[T]he Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a
mitigating factor, any aspect of a defendant's character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence less than death." Lockett, 438 U.S.
at 604 (emphasis in original).
Petitioner argues pleading guilty is the best possible evidence of his remorse and
acceptance of responsibility. While that may be so, under the statute, if he chooses to plead guilty
and waive his right to a jury trial, the judge—the sentencer—is required to consider any mitigating
factor, including Petitioner's remorse and acceptance of responsibility. And, should a capital
defendant choose to proceed with a jury trial, nothing in the statute precludes that defendant from
showing the jury the relevant aspects of his character—his remorse and acceptance of
responsibility—in other ways. Thus, either scenario preserves a capital defendant's Eighth and
Fourteenth Amendment right to present his sentencer with any mitigating aspect of his character,
67
and the statute preserves the defendant's right to choose whether that sentencer will be a jury or a
judge.
For these reasons, the Court finds Petitioner fails to show the state court's decision
unreasonably applied clearly established Supreme Court precedent or was based on an
unreasonable determination of the facts.
Accordingly, Respondent's Motion for Summary
Judgment is granted as to Ground Eight.
Procedurally Barred Claims
Procedural default is an affirmative defense that is waived if not raised by respondents.
Gray v. Netherland, 518 U.S. 152,165–66 (1996). If the defense is raised, it is the petitioner's
burden to raise cause and prejudice or actual innocence; if not raised by a petitioner, the court need
not consider the defaulted claim. Kornahrens v. Evatt, 66 F.3d 1350 (4th Cir. 1995). Here,
Respondent contends Ground Four and part of Ground Seven are procedurally barred. Petitioner
argues he can establish cause for any procedurally barred claims of ineffective assistance of trial
counsel under Martinez v. Ryan, 566 U.S. 1 (2012).
In Martinez, the Supreme Court held,
[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel
claim in a collateral proceeding, a prisoner may establish cause for a default of an
ineffective-assistance claim in two circumstances. The first is where the state
courts did not appoint counsel in the initial-review collateral proceeding for a claim
of ineffective assistance at trial. The second is where appointed counsel in the
initial-review collateral proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome the default, a prisoner must also
demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that the claim
has some merit.
68
Id. at 14. Accordingly, Petitioner may establish cause for the defaulted grounds if he demonstrates
that (1) his PCR counsel was ineffective and (2) the underlying ineffective assistance of trial
counsel claim is a substantial one, i.e., it has some merit.
Ground Four
In Ground Four, Petitioner asserts his guilty plea was unknowing and involuntary due to
the effects of medications he was taking and that trial counsel were ineffective for not ensuring he
understood the significance and consequences of pleading guilty. ECF No. 39 at 60–71.
Expansion of the Record
In support of this claim, Petitioner offers a 2019 report by Dr. Susan E. Rushing, MD, JD,
opining Petitioner's medications "would result in cognitive impairment," ECF No. 39-11 at 108,
and declarations from PCR counsel regarding their investigations and strategy, ECF Nos. 63-2,
63-3. Petitioner also requests an evidentiary hearing to resolve alleged factual disputes. ECF No.
63 at 39–40. Respondent opposes any expansion of the record related to this claim but admits
Petitioner may introduce extra-record evidence "in support of an argument to excuse any
procedural default." ECF No. 74 at 3 n.3. The Court agrees and grants Petitioner's request to
expand the record with respect to Dr. Rushing's report and PCR counsels' declarations but will
consider this evidence only as it relates to Petitioner's claims of cause and prejudice to excuse the
default. See Fielder v. Stevenson, No. 2:12-cv-412-JMC, 2013 WL 593657, at *3 (D.S.C. Feb. 14,
2013) (finding while "[s]ection 2254(e)(2) sets limits on a petitioner's ability to expand the record
in a federal habeas proceeding[,] . . . courts have held that § 2254(e)(2) does not similarly constrain
the court's discretion to expand the record to establish cause and prejudice to excuse a petitioner's
69
procedural defaults").
However, the Court denies Petitioner's request for an evidentiary hearing. "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, 550 U.S. at 474. 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.'" Segundo v. Davis, 831 F.3d 345,
351 (5th Cir. 2016) (quoting Ayestas v. Stephens, 817 F.3d 888, 896 (5th Cir. 2016) (per curiam),
judgment vacated on other grounds by Ayestas v. Davis, 138 S. Ct. 1080 (2018)). Martinez itself
provides little guidance regarding when a claim is viable or substantial, other than a "cf." cite to
Miller-El v. Cockrell, which describes the standards for certificates of appealability. Martinez, 566
U.S. at 14. Based on Miller-El's holding, a petitioner alleges a substantial claim "by demonstrating
that jurists of reason could disagree with the district court's resolution . . . or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further." MillerEl v. Cockrell, 537 U.S. 322, 327 (2003).
"This threshold inquiry does not require full consideration." Id. at 336. "Where
documentary evidence provides a sufficient basis to decide a petition, the court is within its
discretion to deny a full hearing." Runningeagle v. Ryan, 825 F.3d 970, 990 (9th Cir. 2016); accord
Schriro, 550 U.S. at 474 ("[I]f the record refutes the applicant's factual allegations or otherwise
precludes habeas relief, a district court is not required to hold an evidentiary hearing"); Segundo,
831 F.3d at 351 ("Martinez and Trevino protect . . . habeas petitioners from completely forfeiting
an [ineffective assistance of counsel] claim; neither entitles petitioners to an evidentiary hearing
70
in federal court in order to develop such a claim.").
For the reasons below, based on the record and Petitioner's newly offered evidence, the
Court finds Petitioner has failed to allege a substantial claim and is not entitled to an evidentiary
hearing.
Discussion
Respondent does not dispute that at the time of his February 2005 meeting with trial
counsel and subsequent plea, Petitioner was taking two antipsychotic medications, Geodon and
Prolixin Decanoate, and two medications to help with side effects from those medications and with
insomnia, Cogentin and Benadryl. While his recorded doses of Cogentin and Benadryl appear to
be within the normal range, all of the experts agree Petitioner was being administered significantly
higher-than-normal doses of the antipsychotics.
In particular, Petitioner received a 100mg
injection of Prolixin Decanoate one day prior to his meeting with counsel to discuss pleading
guilty. See ECF No. 39-10 at 34. All of the experts associated with this case consistently testified
that Prolixin Decanoate and Geodon are normally started at a low dose and titrated over time.
While it appears both medications were titrated throughout 2004,18 the records suggest Petitioner
had not received a Prolixin injection since November 2004, ECF No. 39-10 at 7 (noting orders to
discontinue Prolixin on November 14, 2004). Petitioner began taking the relevant dose of Geodon
in early December 2004. He did not receive Geodon while hospitalized from February 14, 2005
to February 24, 2005, but requested to restart Geodon and Prolixin on February 24, the day prior
18
See ECF No. 39-7 at 141 (showing Petitioner received 25mg injections of Prolixin starting
March 29, 2004); ECF No. 39-9 at 120 (showing Petitioner began receiving 100mg injections of
Prolixin in May 2004); ECF No. 39-9 at 126 (showing Petitioner started taking Geodon in March
2004); ECF No. 39-10 at 11 (ordering Geodon increased from 80mg to 160mg to 240mg over
time); ECF No. 39-10 at 7 (Geodon dose increased to 320mg on November 14, 2004).
71
to his meeting with counsel, ECF No. 39-10 at 31.
Petitioner's plea colloquy is not dispositive of this issue. See Sanders v. United States, 373
U.S. 1, 19–20 (1963) (finding administration of narcotic drugs while in prison could impact
defendant's mental capacity in a way not apparent to the plea judge at the time). Rather, to show
these medications rendered his plea involuntary, Petitioner must "demonstrate 'that his mental
faculties were so impaired by drugs when he pleaded that he was incapable of full understanding
and appreciation of the charges against him, of comprehending his constitutional rights and of
realizing the consequences of his plea.'" United States v. Truglio, 493 F.2d 574, 578–79 (4th Cir.
1974) (quoting United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970)); see also Godinez v.
Moran, 509 U.S. 389, 401 n.12 (1993) ("The purpose of the 'knowing and voluntary' inquiry . . .
is to determine whether the defendant actually does understand the significance and consequences
of a particular decision and whether the decision is uncoerced.").
Neither the record nor Dr. Rushing's report show Petitioner suffered this level of
impairment. Throughout 2004, Petitioner occasionally reported the Geodon made him tired during
the day when he took it in the morning and that, when he took it at night, it made him feel
"hungover" in the morning. ECF No. 39-9 at 135 (complained Geodon injection made him
drowsy); ECF No. 39-10 at 12 (complained Geodon made him sleepy during the day when taken
in the morning); ECF No. 39-10 at 30 (reports getting ten hours of sleep on Geodon, but feeling
hungover in the morning). Petitioner's medical records leading up to February 2005 do not note
any cognitive side effects specifically linked to Prolixin. Petitioner reported trouble sleeping,
nightmares, and hearing voices throughout this time period and required inpatient psychiatric care
three times. ECF No. 39-9 at 17 (March 29, 2004 admission); ECF No. 39-9 at 5 (November 22,
72
2004 admission); ECF No. 39-9 at 50 (December 3, 2004 summary of November 22 admission
noting Petitioner reported trouble sleeping, nightmares, and hearing voices); ECF No. 39-10 at 40
(transfer summary for February 2005 admission after possible Benadryl overdose).
Regarding their meeting with Petitioner to discuss pleading guilty, trial counsel recalled
Petitioner as "passive," "compliant," "easy to deal with," and quiet. App. 3533. Pringle attributed
Petitioner's demeanor to finally getting his medications straight. App. 3533. Immediately before
Petitioner's plea, Judge Cooper asked Pringle, "What is [Petitioner's] mental health condition in
terms of medication, those issues today?" App. 0014. Pringle responded:
Mr. Allen is currently being treated for psychotic disorders. He has been diagnosed
with schizoaffective disorder and paranoid schizophrenia alternately, Your Honor.
He is currently being treated with psychotropic drugs, medications. He received a
shot for Prolixin last Thursday. He is also taking Geodon.
He has been taking those medications continuously. But the Prolixin is a
medication that he receives every two weeks and remains in his system. The
Geodon is a medication that he takes every day. He is current on his medication
and thinking clearly today, Your Honor.
App. 0014.19 During the colloquy, Petitioner stated he was taking medication but the medication
did not interfere with his ability to understand what he was doing and that he did, in fact, clearly
understand what he was doing. App. 0022.
During the penalty phase, several of the experts testified concerning Petitioner's
medications. Regarding potential effects of Petitioner's current doses of Prolixin and Geodon, Dr.
Harding testified:
Well, everybody has some variation. But I think those are both high levels of
medication. And you would see serious sedation, as in if I took that I would
19
In addition, in a February 28, 2005 email to Dr. Corvin, Pringle explained Petitioner's recent
hospitalization and stated Petitioner was "back on meds, got a shot of Prolixin last week, and is
much improved." App. 4455.
73
probably be asleep for the next three days, that type of level of medication. If you
start at a very low dose and build up gradually over months, you could get to a point
where somebody could function with that, but it's a lot of medication, that amount.
App. 1341.
Dr. Corvin testified that a non-psychotic person who had not received the proper titration
would likely end up in the emergency room if administered Petitioner's dose of Prolixin. App.
1433–34. Recounting a description from one of his schizophrenic patients, Dr. Corvin testified
"taking a neuroleptic like Prolixin" is like "throwing a wet towel over your brain. Everything just
shuts down, slows down," including, hopefully, the psychotic symptoms. App. 1434. However,
Dr. Corvin testified Petitioner's treatment notes indicated Petitioner was in the recreation hall
playing cards the day after he received his first dose of Prolixin in 2004. App. 1435. Dr. Corvin
agreed Petitioner received a large dose of Prolixin on February 24, 2005 without titration but noted:
"It certainly has been my experience that patients with chronic psychotic illnesses can just . . . take
large doses of medicines and it doesn't hit them in the same way that it would you and I, especially
if they're not naïve to the medication." App. 1436.
Dr. Crawford noted Prolixin can cause people to appear more withdrawn and demonstrate
flat affect and that Petitioner probably had those side effects. App. 1612. Regarding the dose of
Prolixin that Petitioner received on February 24, 2005, Dr Crawford, who interviewed Petitioner
on six different occasions leading up to trial, testified:
Now, he's given a huge dose of Prolixin, not having been on Prolixin for a long
time, I mean, a very large dose all of a sudden. Which you would expect that a
person who is not psychotic to knock him out. What actually happened, and in my
interviews with him, is that he had requested the Prolixin. He said that helps with
the voices. This is not a medication people request. This has horrendous side
effects. He requested the Prolixin. And on the Prolixin he told me the voices were
better, he wasn't hearing voices at the time any more, and he was actually brighter.
74
Now, that's the exact opposite of what you'd expect by giving somebody a massive
dose or a very large dose of Prolixin. You'd expect them to be, you know, less
communicative. Well, with the voices improved, he's actually - - I mean, he's not
talkative, but he would actually smile on occasion and seem a little bit better, and
he said he had relief because the voices were gone, that the other antipsychotic had
not been helping but the Prolixin did. And so I thought that was interesting, as
opposed to suddenly seeing him - - I mean, as he is right now in court, he is on a
huge amount of medication. And this isn't a huge amount of medication that was
slowly increased 'til he could get to this point. Because, in fact, for how many days?
12 days he was off all medication and then he was slammed on the highest amount
of recommended [Prolixin] Decanoate and a tremendous dose of something they
call Geodon, another antipsychotic. Yet now as he is, he's actually the brightest
I've seen him since I've been working with him.
....
[H]e's less suspicious and guarded with me. He, you know, smiles at times. In fact,
at one point he said hello, you know, turned to me and smiled which was not
something I had from him before. There was like more of a person in there than
there had been.
App. 1615–16.
Dr. Schwartz-Watts testified Petitioner was on the "highest dose of Prolixin Decanoate"
she had ever seen in anybody and the maximum dose of Geodon. App. 1854. She also testified
that neither Geodon nor Prolixin cause poverty of thought or poverty of speech. App. 1856.
During the PCR evidentiary hearing, Petitioner testified his medications slowed him down.
App. 3497. He indicated he could not recall all of the details of his meeting with trial counsel
because he was "under medication then." App. 3495. When asked later how the medications made
him feel, he responded: "It just subdued my mind where I wasn't myself. I was slow motion. I
couldn't think. You know what I'm saying? And I was just basically a zombie." App. 3967.
Petitioner testified trial counsel went over the plea questions with him prior to the colloquy and he
answered how counsel instructed him to. App. 3502–03. However, he never challenged the truth
of his statements or expressed a lack of understanding of the process or its consequences.
75
Dr. Rushing reviewed Petitioner's medical records, transcripts of his guilty plea and the
sentencing phase, and reports from the trial experts, as well as Dr. Frierson's 2013 report for the
PCR hearing. ECF No. 39-11 at 102. However, Dr. Rushing never personally evaluated Petitioner.
Id. After summarizing Petitioner's medication history, Dr. Rushing describes the medications
Petitioner was on at the time of his plea and concludes, "The combination of these medications
would result in cognitive impairment." ECF No. 39-11 at 108. In addition, Dr. Rushing expresses
her "substantial doubts about [Petitioner's] understanding the significance and consequences of his
pleading guilty and waiving his right to a jury trial at the time he plead guilty, given the effects of
the medication administered." Id.
However, Dr. Rushing's opinion appears conclusory and speculative and is not enough to
rebut the strong presumption that trial counsel performed reasonably and create a genuine issue of
material fact. See Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)
(holding that "[c]onclusory or speculative allegations do not suffice, nor does a 'mere scintilla of
evidence'" in support of the non-moving party's case) (quoting Phillips v. CSX Transp., Inc., 190
F.3d 285, 287 (4th Cir. 1999)). She lists common side effects for each of Petitioner's medications,
including: feeling sleepy, dizzy, irritable, fatigued, having blurred vision, feeling the need to move,
dry mouth, nausea, vomiting, headache, lack of appetite, speech disturbance, tachycardia,
anorexia, dyspepsia, depression, orthostatic hypotension, sensitivity to light, impaired body
temperature regulation, sedation, nervousness, impaired coordination, urinary retention,
paradoxical central nervous system stimulation, diaphoresis, and extrapyramidal symptoms. ECF
No. 39-11 at 106–07. Less common side-effects of Geodon can include neuroleptic malignant
syndrome, severe extrapyramidal symptoms, dystonia, QT prolongation, irregular cardiac rhythm,
76
seizure, syncope, stroke, severe hypertension, serotonin syndrome, agranulocytosis, leukopenia,
neutropenia, and Stevens-Johnson Syndrome. ECF No. 39-11 at 106–07. Dr. Rushing notes
Petitioner "was manifesting physical side effects from his medication when he was admitted to the
hospital two weeks prior to the plea," ECF No. 39-11 at 107, but, other than her conclusory
statement, Dr. Rushing does not describe any specific cognitive side effects Petitioner exhibited
or even list common cognitive side effects of his medications. Thus, Dr. Rushing's report does not
support Petitioner's allegation of cognitive impairment making him "'incapable of full
understanding and appreciation of the charges against him, of comprehending his constitutional
rights and of realizing the consequences of his plea.'" Truglio, 493 F.2d at 578–79 (quoting
Malcolm, 432 F.2d at 812).
Petitioner's reliance on the PCR testimony from counsel and Petitioner himself is equally
unpersuasive. The PCR testimony suggests only that Petitioner was subdued, and possibly tired
and thinking slowly. The record clearly shows trial counsel and their experts were acutely aware
of Petitioner's ever-evolving mental state and his medications throughout their trial preparations.
Further, at the time of his meeting with counsel, plea, and sentencing hearing, trial counsel, Judge
Cooper, and numerous experts with personal knowledge of Petitioner's medications and mental
state did not observe evidence of cognitive impairment. Rather, they expressed their beliefs, based
on their personal observations of Petitioner both at the time and over the previous year, that he, for
some reason, did not react to large doses of Prolixin as they would expect and was doing better
after receiving the injection. Trial counsel has every right to rely on their experts' opinions and
their own personal experience, observations, and judgment. See Wilson v. Greene, 155 F.3d 396,
403 (4th Cir. 1998) (finding reasonably effective counsel not required to second-guess contents of
77
expert reports); United States v. Mason, 774 F.3d 824, 830 (4th Cir. 2014) ("Attorneys exist to
exercise professional judgment").
Thus, Petitioner fails to state a viable, substantial underlying ineffective assistance of
counsel claim and cannot overcome the procedural bar. Respondent's Motion for Summary
Judgment is granted as to Ground Four.
Defaulted Portion of Ground Seven
In this defaulted portion of Ground Seven, Petitioner asserts trial counsel were ineffective
for failing to present available neuropsychological evidence that Petitioner suffered brain
impairments. ECF No. 39 at 95–98.
Expansion of the Record
In support of this claim, Petitioner offers a new neuropsychological report from Dr. Joette
James, ECF No. 39-11 at 111–28, and a 2019 affidavit from Lominack concerning his contact with
Dr. Evans, ECF No. 39-11 at 97–99. Respondent opposes any expansion of the record for this
claim. ECF No. 50 at 77. For the same reasons discussed in Ground Four, the Court will consider
this extra-record evidence but only for the purpose of evaluating whether Petitioner has shown
cause and prejudice under Martinez. Further, for the reasons below the Court finds Petitioner fails
to allege a substantial underlying claim. Accordingly, to the extent Petitioner has requested an
evidentiary hearing on this claim, the Court denies that request.
Discussion
It is indisputable that trial counsels' primary strategy at sentencing was to convince Judge
Cooper of Petitioner's mental illness and that they focused the bulk of their mitigation investigation
78
and presentation on mental health evidence.
neuropsychologist, Dr. James Evans.
Trial counsels' investigation included a
ECF No. 39-11 at 97.
Dr. Evans performed
neuropsychological testing on Petitioner and provided the results to counsel. ECF No. 39-11 at
97–98, 129. However, counsel did not call Dr. Evans to testify or present his testing results by
other means. In his affidavit, Lominack states that he "does not recall talking with Dr. Evans after
he conducted the testing" and that he lacked the knowledge or experience at the time to have an
informed discussion about the meaning of the test results. ECF No. 39-11 at 97–98. Petitioner
contends this objective data would have provided context for his behavior, bolstered his case for
severe mental illness, and provided Judge Cooper with an additional basis from which to conclude
his behavior was the result of brain impairment and mental illness rather than malice. ECF No. 39
at 96–97.
Petitioner's claim lacks merit for several reasons. First, Petitioner has not shown that Dr.
Evans's testing revealed any particularly mitigating information that would have added to trial
counsels' sentencing presentation. Petitioner provides only Dr. Evans's raw data, which this Court
is not qualified to interpret, and claims these results showed Petitioner suffered from impaired
executive functioning. ECF No. 39 at 95; ECF No. 39-11 at 129. Petitioner's new expert, Dr.
James, reviewed Dr. Evans's data and notes Petitioner showed: average to low-average intellectual
ability; deficits in some aspects of executive functioning, including complex information
processing speed, attention (both auditory and visual), and problem solving in the face of feedback;
and weaknesses in tactile and motor functioning. ECF No. 39-11 at 113–14. She also indicates
Dr. Evans noted Petitioner was heavily medicated at the time of his testing. ECF No. 39-11 at
79
113.
Neither Dr. James nor Petitioner offer any further explanation of these results, what they
reveal about Petitioner, or exactly how they are mitigating. Accordingly, Petitioner fails to rebut
the strong presumption that counsel acted reasonably in choosing not to present Dr. Evans or the
results of his testing. See Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("When counsel focuses on
some issues to the exclusion of others, there is a strong presumption that he did so for tactical
reasons rather than through sheer neglect. . . . [However,] even if an omission is inadvertent, relief
is not automatic. The Sixth Amendment guarantees reasonable competence, not perfect advocacy
judged with the benefit of hindsight."); Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998)
("Decisions about what types of evidence to introduce 'are ones of trial strategy, and attorneys have
great latitude on where they can focus the [sentencer's] attention and what sort of mitigating
evidence they can choose not to introduce.'") (quoting Pruett v. Thompson, 996 F.2d 1560, 1571
n.9 (4th Cir. 1993)).
Dr. James's explanation of her results offers some insight into Dr. Evans's results.
However, her results appear to differ in many ways, as one might expect considering her testing
occurred fifteen years later. Where Dr. Evans noted deficits in information processing speed and
attention, Dr. James found Petitioner performed in the average range "on simple measures of
attention control." ECF No. 39-11 at 116. She later concluded Petitioner "demonstrates good
initial attention, [but] lacks cognitive flexibility and is easily overwhelmed when faced with large
quantities of information." Id. at 118. Dr. James then notes that "[i]mpaired attention is a common
element of many psychiatric disorders, and problems with attention are frequently noted in patients
80
with depression, anxiety, mania, and thought disorders like schizophrenia." Id. Petitioner relies
on this statement to support his argument that presentation of neuropsychological evidence could
have bolstered the case that he suffered from a severe mental illness and was not malingering his
symptoms. See, e.g., ECF No. 39 at 97. However, Dr. James never explicitly finds Petitioner
suffered impaired attention, nor does this statement directly link impaired attention to
schizophrenia. Based on this statement alone, any deficit in Petitioner's attention could just as
easily be linked to his repeatedly diagnosed depression.
In addition, where Dr. Evans noted a deficit in information processing speed, Dr. James
found Petitioner average in this regard. ECF No. 39-11 at 117. Dr. James's report does not
specifically mention "problem solving in the face of feedback," but Dr. James did find Petitioner
demonstrated mild to moderate impairment in cognitive flexibility and problem solving, which is
consistent with Dr. Evans's findings. Id. at 116.
Based on her results, Dr. James reached the following conclusions specifically about
Petitioner:
Mr. Allen presents with a complex neuropsychological profile. He demonstrates
relative strengths in overall reasoning, particularly in the verbal domain. He also
demonstrates relative strengths in core academic skills, including reading decoding,
spelling, and sentence comprehension.
In contrast, Mr. Allen presents with clear weaknesses in multiple, important
domains of functioning; the chief areas of deficit are in some, though not all, aspects
of executive functioning, particularly impulse control, emotional regulation, and
cognitive flexibility. He also demonstrates relative weaknesses in complex
working memory and planning/organization.
....
Mr. Allen's attention and executive functioning deficits significantly interfere with
81
organized, efficient learning and recall, in that he is prone to becoming 'stuck,'
making poor decisions, being overwhelmed by his emotions, encoding information
much more slowly and inefficiently than would be expected and 'outputting'
information more slowly as well. This is particularly true in new, novel, and
stressful circumstances, where his ability to effectively function is undermined by
multiple tasks or increasing complexity and emotional color. Information
processing can prove to be extremely effortful for him at those times. These
neurocognitive deficits make him highly vulnerable to overwhelm and overload,
particularly when the situation is novel, complex, or emotionally laden. In such
circumstances, he is less able to be future-oriented and resist the urge to act
impulsively and is more likely to be distracted by short-term actions based on
current emotions and impulses versus recognizing the future implication of those
actions[.] His capacity to initiate and develop organized approaches to problems,
self-monitor behaviors and actions, respond to feedback and revise an approach
where it no longer seems to be working, are all likely to deteriorate under such
conditions, making him subject to extreme and inappropriate reactions.
....
Mr. Allen's impairments in these areas are very likely to interfere with his ability
to utilize his cognitive strengths, and make him prone to poor adaptive functioning
in real world settings, in that he is less able than most individuals with his base
intellectual ability to regulate his emotions, control his impulses, think quickly and
efficiently, respond appropriately to changing stimulus demands, and consider
long-term consequences of his actions. Again, this is particularly true in situations
that are complex, unfamiliar, fluctuating, present a great information load, and/or
are emotionally laden.
ECF No. 39-11 at 117–21.
The Court fails to see how even Dr. James's impressions would have significantly altered
the sentencing profile presented to Judge Cooper. See Sears v. Upton, 561 U.S. 945, 954 (2010)
("[T]here is no prejudice when the new mitigating evidence 'would barely have altered the
sentencing profile presented' to the decisionmaker") (quoting Strickland, 466 U.S. at 700). As Dr.
James states in her report, "[i]n part, [Petitioner's] broader weaknesses in executive functioning
may be gleaned from Mr. Allen's history, which indicates a longstanding history of extreme
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emotional and behavioral dysregulation." ECF No. 39-11 at 118. That history was thoroughly
presented to Judge Cooper through the social historian, Ms. Grey.
Further, the Court fails to see the qualitative difference between neuropsychological testing
and the extensive psychological and psychiatric testing Petitioner underwent in this case.
Petitioner contends:
The data from this neuropsychological testing would have provided mental health
mitigation that was qualitatively different from the psychiatric presentation of
mental illness and would have side-stepped the dispute over the correct diagnosis
or malingering. The evidence of brain impairment would have also provided
context for Mr. Allen's impulsive and irrational behavior, and would have relied on
objective data from validated testing, as opposed to a battle of the experts regarding
mental illness.
ECF No. 63 at 71–72. However, much of the dispute surrounding malingering was whether
Petitioner had malingered results on psychological testing. See, e.g., App. 1653–54. There is no
indication that the neuropsychological testing used by Dr. Evans and Dr. James is any less
susceptible to manipulation than any other psychological testing. The results are certainly not any
more "objective," in the way a brain scan or blood test might be.
In short, Petitioner fails to show neuropsychological evidence would have done anything
but add to or bolster an already thorough mental health presentation. Thus, Petitioner fails to allege
a substantial underlying ineffective assistance of counsel claim and cannot meet his burden under
Martinez. This claim remains defaulted and Respondent's Motion for Summary Judgment is
granted as to Ground Four.
Ground Nine
In Ground Nine, Petitioner alleges entitlement to relief based on cumulative error. ECF
No. 39 at 102–03. "Pursuant to the cumulative error doctrine, '[t]he cumulative effect of two or
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more individually harmless errors has the potential to prejudice a defendant to the same extent as
a single reversible error.'" United States v. Basham, 561 F.3d 302, 330 (4th Cir. 2009) (quoting
United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990)). "Generally, however, if a court
'determine[s] . . . that none of [a Petitioner's] claims warrant reversal individually,' it will 'decline
to employ the unusual remedy of reversing for cumulative error.'" Id. (quoting United States v.
Fields, 483 F.3d 313, 362 (4th Cir. 2007)). Further, regarding claims of ineffective assistance of
counsel, the Fourth Circuit has expressly stated courts are to review these claims individually,
rather than collectively. 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. . . . To the extent this Court has not
specifically stated that ineffective assistance of counsel claims, like claims of trial court error, must
be reviewed individually, rather than collectively, we do now.") (internal citations omitted).
Having found no constitutional error, the Court also finds no cumulative error.
Respondent's Motion for Summary Judgment is granted as to Ground Nine.
Respondent's Motion to Strike
Respondent has moved to strike multiple documents Petitioner attaches to his pleadings
and the portions of his pleadings relying on those documents. ECF No. 74. To the extent
Respondent moves to strike the documents the Court has considered for the sole purpose of
Petitioner's arguments in favor of cause and prejudice to excuse procedural default, the motion to
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strike is denied. The motion is granted as to any document not expressly considered by the Court.
CONCLUSION
The Motion for Summary Judgment [50] is GRANTED, the Amended Petition [39] is
DISMISSED, Respondent's Motion to Strike [74] is GRANTED IN PART and DENIED IN
PART, and Petitioner's Motion for Discovery [85] is DENIED.
CERTIFICATE OF APPEALABILITY
The governing law provides that:
(2) A certificate of appealability may issue . . . only if the applicant
has made a substantial showing of the denial of a constitutional
right.
(3) The certificate of appealability . . . shall indicate which specific
issue or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists
would find this Court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell,
537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). In this case, Petitioner has met the legal standard for the issuance of a
certificate of appealability as to Grounds Five and Six. Therefore, a certificate of appealability is
GRANTED as to those grounds.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
March 25, 2020
Spartanburg, South Carolina
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