Terry v. Byars

Filing 162

ORDER RULING ON REPORT AND RECOMMENDATION: The Court ADOPTS the R&R (Dkt. No. 142 ) as the Order of the Court, GRANTS Respondents' motion for summary judgment (Dkt. No. 130 ), and DENIES Respondents' motion to strik e (Dkt. No. 131 ). The Court DENIES Petitioner's petition for a writ of habeas corpus brought under 28 U.S.C. § 2254 and DENIES a Certificate of Appealability.AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 09/26/2019. (dsto, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

Gary Dubose Terry,
Petitioner,

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

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Civil Action No. 4:12-1798-RMG

ORDER AND OPINION

This matter is before the Court on the Report and Recommendation ("R & R") of the
Magistrate Judge (Dkt. No. 142), recommending that the Court deny Respondent's motion to strike
(Dkt. No. 131) and grant Respondents' motion for summary judgment (Dkt. No. 130) on
Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 16). For
the reasons set forth below, the Court adopts the R & R as the Order of the Court, denies
Respondent's motion to strike and grants Respondents' motion for summary judgment.
I.

Background

The Court adopts the relevant facts and procedural history as outlined in the R & R. (Dkt.
No. 142 at 2-17.) The Lexington County Grand Jury indicted Petitioner Gary Dubose Terry in
July 1995 for the murder ofUrai Jackson and for first degree burglary, first degree criminal sexual
conduct, and malicious injury to a telephone system. The State then served notice of intent to seek
the death penalty. On September 18, 1997, Petitioner was found guilty on all counts, and on
September 21, 1997, the jury found the existence of two statutory aggravating factors, namely, that
the murder was committed during a crime of sexual conduct and that the murder was committed
during a crime of burglary. The jury recommended that Terry be sentenced to death and the trial
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judge thereafter sentenced Petitioner to death.
On March 13, 2000, the South Carolina Supreme Court affirmed Petitioner's convictions
and sentence. State v. Terry, 529 S.E.2d 274, 275 (S.C. 2000). The South Carolina Supreme Court
denied Petitioner's petition for rehearing on April 19, 2000 (Dkt. No. 39-2 at 52-58), and the
United States Supreme Court denied his petition for writ of certiorari on October 2, 2000, Terry v.
South Carolina, 531 U.S. 882, 121S.Ct.197 (2000).
On November 30, 2000, through counsel, Petitioner filed his first_application for postconviction relief ("PCR"). Petitioner presented twenty-three grounds in his PCR application.
(Dkt. No. 39-2 at 205 -206.) The PCR court held an evidentiary hearing from July 10- 12, 2006,
and heard testimony from Petitioner's trial counsel (Elizabeth Fullwood and Isaac McDuffie Stone,
III), the defense team's investigator, appellate counsel, South Carolina Law Enforcement Division
("SLED") personnel, three of Petitioner's friends and relatives, and a Lexington County Sheriff's
Department detective. On February 18, 2009, the PCR court denied Petitioner's PCR application
and dismissed it with prejudice. Petitioner filed a motion to alter or amend the PCR court's
judgment, which the PCR court denied. Petitioner then filed a petition for writ of certiorari with
the South Carolina Supreme Court, which the court granted on November 5, 2010. On August 29,
2011, after briefing and oral argument, the South Carolina Supreme Court affirmed the PCR
court's decision. Terry v. State, 714 S.E.2d 326 (S.C. 2011); (Dkt. No. 42-4.) Petitioner filed a
petition for writ of certiorari in the United States Supreme Court, which was denied on February
21, 2012. Terry v. South Carolina, 565 U.S. 1206, 132 S.Ct. 1548 (2012); (Dkt. No. 42-7.)
Petitioner timely filed the present habeas petition on June 29, 2012. (Dkt. No. 16.) On the
same day, Petitioner also filed a second application for post-conviction relief in the state courts.
(Dkt. Nos. 17; 117.) Based on the second PCR application, Petitioner filed a motion to stay this

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matter pending resolution of his contemporaneously-filed second PCR application. (Dkt. No. 17.)
On December 10, 2012, the Court granted Petitioner's motion. (Dkt. No. 53.) Petitioner's second
PCR application was dismissed as successive on June 19, 2018. (Dkt. No. 117-1.) On July 13,
2018 the Court lifted the stay and allowed time for amended briefing. (Dkt. No. 119.)
Petitioner's habeas petition raises five grounds for relief: 1) Petitioner's trial counsel were
ineffective for failing to object on the basis of prosecutorial misconduct to the trial court's
exclusion of statements Petitioner made and for failing to concede guilt after informing the jury
Petitioner had confessed; 2) Petitioner's trial counsel were ineffective for failing to disclose an
actual conflict of interest; 3) Petitioner's trial counsel were ineffective for failing to conduct
adequate and appropriate voir dire; 4) Petitioner's trial counsel were ineffective for failing to
develop evidence supporting a defense of guilty but mentally ill or to adequately investigate and
present mitigating evidence of Petitioner's abusive childhood, and; 5) Petitioner's trial counsel
were ineffective in failing to object to or impeach aggravating testimony from Petitioner's ex-wife
that he had raped her during their marriage. (Dkt. No. 16.)
Respondents moved for summary judgment on all grounds and moved to strike certain
exhibits Petitioner submitted in support of his petition. (Dkt. Nos. 130, 131.) Petitioner opposed
the motions. (Dkt. No. 137.) The Magistrate Judge issued an R & R recommending the Court
grant Respondents' motion for summary judgment and deny Respondents' motion to strike. (Dkt.
No. 142.) Petitioner filed objections to the R & R regarding Grounds One through Four and the
denial of an evidentiary hearing, and Respondents filed a response. (Dkt. Nos. 149, 157.)

II.

Legal Standard
A. Review of R & R

The Magistrate Judge makes only a recommendation to this Court that has no presumptive

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weight. The responsibility to make a final determination remains with the Court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). This
Court must make a de novo determination of those portions of the R & R Plaintiff specifically
objects. Fed. R. Civ. P. 72(b)(2). Where Plaintiff fails to file any specific objections, "a district
court need not conduct a de novo review, but instead must only satisfy itself that there is no clear
error on the face of the record in order to accept the recommendation." Diamond v. Colonial Life
& Accident Ins. Co., 416 F .3d 310, 315 (4th Cir. 2005) (internal quotation omitted). "Moreover,

in the absence of specific objections to the R & R, the Court need not give any explanation for
adopting the recommendation." Wilson v. SC Dept ofCorr. , No. 9:14-CV-4365-RMG, 2015 WL
1124701, at *1 (D.S.C. Mar. 12, 2015). See also Camby v. Davis, 718 F.2d 198, 200 (4th
Cir.1983).
Petitioner objects to the R & R regarding Grounds One through Four and the
recommendation to not hold an evidentiary hearing. (Dkt. No. 149.) Therefore, those portions of
the R & Rare reviewed de novo. All other portions of the R &Rare reviewed for clear error.
B. Summary Judgment
To prevail on a motion for summary judgment, the movant must demonstrate that there is
no genuine issue of any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The party seeking summary judgment has the burden of identifying
the portions of the "pleadings, depositions, answers to interrogatories, any admissions on file,
together with the affidavits, if any, which show there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The Court will construe all inferences and ambiguities against the

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movant and in favor of the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The existence of a mere scintilla of evidence in support of the non-moving party's position is
insufficient to withstand a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 4 77
U.S. 242, 252 (1986). However, an issue of material fact is genuine ifthe evidence is such that a
reasonable jury could return a verdict in favor of the non-movant. Id. at 257.
"When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts." Matsushita
Elec.

Indus~

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "In the language of the Rule,

the nonmoving party must come forward with 'specific facts showing that there is a genuine issue
for trial."' Id. at 587. "Where the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no 'genuine issue for trial."' Id. (quoting First Nat '! Bank
ofAriz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

C. Habeas Corpus
i. Standard for Relief

Claims adjudicated on the merits in a state court proceeding cannot be a basis for federal
habeas corpus relief unless the decision was "contrary to, or involved an unreasonable application
of clearly established federal law as decided by the Supreme Court of the United States," or the
decision "was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding." 28 U.S.C. § 2254(d)(l), (2). Section 2254(d) codifies
the view that habeas corpus is a "'guard against extreme malfunctions in the state criminal justice
systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter,
562 U.S. 86, 102-03 (2011) quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens,
J., concurring in judgment). "A state court's determination that a claim lacks merit precludes

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federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state
court's decision." Id. at 101 quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also
White v. Woodall, 572 U.S. 415, 419, 134 S. Ct. 1697, 1702 (2014) (stating that '"[a]s a condition

for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's
ruling on the claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for fairminded
disagreement"') quoting Harrington, 562 U.S. at 103.
Therefore, when reviewing a state court's application of federal law, "a federal habeas
court may not issue the writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 410 (2000);
see also White, 572 U.S. at 419 (describing an "unreasonable application" as "objectively

unreasonable, not merely wrong" and providing that "even clear error will not suffice") (internal
quotation marks and citation omitted). State court factual determinations are presumed to be
correct and the petitioner has the burden of rebutting this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(l).
ii. Procedural Default

A habeas corpus petitioner may obtain relief in federal court only after he has exhausted
his state court remedies. 28 U.S.C. § 2254(b)(l)(A). "To satisfy the exhaustion requirement, a
habeas petitioner must present his claims to the state's highest court." Matthews v. Evatt, 105 F.3d
907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F .3d 192
(4th Cir. 2011); see also In re Exhaustion ofState Remedies in Criminal & Post-Conviction Relief
Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that "when the claim has been presented to the

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Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to
have exhausted all available state remedies"). To exhaust his available state court remedies, a
petitioner must "fairly present[] to the state court both the operative facts and the controlling legal
principles associated with each claim." Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004)
(internal quotation marks and citation omitted).
Generally, a federal habeas court should not review the merits of claims procedurally
defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker,
517 F.3d 700, 714 (4th Cir. 2008). For a procedurally defaulted claim to be properly considered
by a federal habeas court, the petitioner must "demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson , 501 U.S.
722, 750 (1991).
D.

Ineffective Assistance of Counsel

When claiming habeas relief due to ineffective assistance of counsel at trial, a petitioner
must show (1) that his trial counsel ' s performance fell below an objective standard of
reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result
of the proceeding would have been different. Stricklandv. Washington , 466 U.S. 668, 694 (1984).
The Court must apply a "strong presumption" that trial counsel' s representation fell within the
"wide range of reasonable professional assistance," and the errors must be "so serious that counsel
was not functioning as the counsel guaranteed the defendant by the Sixth Amendment."

Harrington, 562 U.S. at 104. This is a high standard, one in which a habeas petitioner alleging
prejudice must show that counsel' s errors deprived him "of a fair trial, a trial whose result is
reliable." Strickland, 466 U.S. at 687. Petitioner must show that, "there is a reasonable probability

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that, but for counsel' s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
at 694. Harrington, 562 U.S. at 112 ("The likelihood of a different result must be substantial, not
just conceivable.").
The Supreme Court has cautioned that '" [s]urmounting Strickland' s high bar is never an
easy task[,]' ... [e]stablishing that a state court' s application of Strickland was unreasonable under

§ 2254(d) is all the more difficult." Harrington , 562 U.S. at 105 quoting Padilla v. Kentucky, 130
S. Ct. 1473, 1485 (2010).

When evaluating an ineffective assistance of counsel claim, the

petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland "in
tandem," making the standard "doubly" more difficult. Id. In such circumstances, the "question
is not whether counsel ' s actions were unreasonable," but whether "there is any reasonable
argument that counsel satisfied Strickland' s ' deferential standards.'" Id.
Courts are reluctant to characterize tactical or strategic decisions by trial counsel as
ineffective assistance. Carter v. Lee, 283 F.3d 240, 249 (4th Cir. 2002). A "strong presumption"
exists that counsel's actions were the function of trial tactics and not "sheer neglect." Harrington ,
562 U.S. at 109. This rule, however, is not absolute where the purported strategic decision is based
upon an error or ignorance of the law by trial counsel. Wilson v. Mazzuca, 570 F.3d 490, 502 (2d
Cir. 2009) (omissions based upon "oversight, carelessness, ineptitude or laziness" cannot be
explained as "trial strategy"); Ramonez v. Berghuis, 490 F.3d 482, 488 (6th Cir. 2007) (a strategic
choice made without a professionally competent investigation of the Petitioner' s options is
"erected upon ... a rotten foundation" and is not entitled to deference).

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III.

Discussion
A. Ground One
In Ground One, Petitioner alleges that his trial counsel were ineffective for: (i) failing to

object on the basis of prosecutorial misconduct to the trial court's exclusion of two statements
Petitioner made and; (ii) for failing to concede guilt after informing the jury Petitioner had
confessed during the opening statement. (Dkt. No. 16 at 7.)
Before trial, Petitioner's counsel moved to suppress a statement Petitioner made to police
during the course of the criminal investigation. When police questioned Petitioner on March 24,
1995, the Petitioner gave a statement that he had consensual sex with Urai Jackson and, according
to Petitioner, as he began to leave, an argument ensued, which led to Petitioner losing his temper
and ultimately beating Ms. Jackson with some "object." (Dkt. No. 37-3 at 78-79.) Petitioner's
trial counsel argued Petitioner made the statement involuntarily and had been ill when police
interviewed him. The trial court conducted a Jackson v. Denno, 378 U.S. 368 (1964) hearing and
found the statement admissible.
In his guilt-phase opening statement, assuming the State would introduce Petitioner's
statement as evidence of guilt, Petitioner's trial counsel informed the jury that Petitioner had
confessed to having sex and killing Ms. Jackson, and that Petitioner had confessed to another
murder as well, but that his confession was unreliable. The State, however, never moved to admit
Petitioner's March 24, 1995 statement in the guilt-phase. When the detective who had taken
Petitioner's statement was called as a witness, the State moved to exclude the statement.
Petitioner's trial counsel argued Petitioner should be permitted to introduce the statement
under South Carolina Rule of Evidence 804(B)(3) as a statement against interest because
Petitioner, who exercised his right not to testify, was unavailable as a witness. The court ruled

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Petitioner could not introduce the statement, finding that invoking his right not to testify did not
allow Petitioner "to introduce a statement that the State does not put in in its case in chief in order
to get around the issue of him not taking the stand." 1 (Dkt. No. 36-4 at 21 - 38.)
On direct appeal, the South Carolina Supreme Court considered whether the trial court
erred "in refusing to permit [Petitioner] to introduce his own statement to police into evidence"
and "concur[ed] with the trial court's ruling that [Petitioner] could not use his fifth amendment
privilege against self-incrimination as both a sword and a shield." Terry, 529 S.E.2d at 276 - 77.
In his PCR application, Petitioner asserted trial counsel were ineffective for conceding guilt
in the opening statement, focusing on the fact that the March 24, 1995 statement did not confess
to murder, only manslaughter, and additionally did not confess to burglary or criminal sexual
conduct.

(Dkt. No 39-2 at 205 - 206.) At an evidentiary hearing, Petitioner's PCR counsel

questioned his trial counsel and the prosecutors about the trial and any strategy underlying
counsel's decisions. The PCR court denied Petitioner's claim. (Dkt. No. 40-4 at 28 -45.)

i. Petitioner's Statement and Prosecutorial Misconduct
On appeal from the PCR court's decision, the South Carolina Supreme Court considered
the issue now before this Court: whether trial counsel were ineffective for failing to object to the
exclusion of Petitioner's statement based on prosecutorial misconduct or for failing to adjust their
strategy and concede guilt after telling the jury Petitioner had confessed. (Dkt. No. 42-4.) The
South Carolina Supreme Court affirmed the dismissal of Petitioner's PCR claims. (Id.)
Importantly, regarding counsel's failure to assert prosecutorial misconduct as a ground for
admitting Petitioner's statement, the South Carolina Supreme Court held that:
Trial counsel testified he assumed the State would try to introduce the statement
during the guilt phase because the State argued at the Jackson v. Denno hearing that
1

The State later introduced both statements in the penalty phase. (See Dkt. No. 37-3 at 74-81.)

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the statement was voluntarily given. He acknowledged, however, that no one from
the prosecution team told him affirmatively that the State intended to introduce the
statement during the guilt phase.
(Id. at 5.) Additionally, the court noted that, " [o]ne solicitor testified the State decided well before

trial not to present petitioner's statement during the guilt phase because it was contrary to what the
State sought to prove." (Id.) Therefore, the South Carolina Supreme Court concluded that "there
is evidence to support the PCRjudge' s finding trial counsel were not ineffective .... The solicitor' s
decision not to present petitioner's statement during its case in chief did not constitute
prosecutorial misconduct, but was a matter of trial strategy." (Id.)
Petitioner asserts the South Carolina Supreme Court's finding constitutes an unreasonable
application of federal law, focusing on the court' s application of Old Chief v. US. , 519 U.S. 172
(1997). Specifically, the South Carolina Supreme Court held that
"[I]t is generally recognized that the prosecution and the defense should be afforded
wide discretion in the selection and presentation of evidence." State v. Johnson,
338 S.C. 114, 525 S.E.2d 519 (2000) .... It is "unquestionably true as a general
matter" that "the prosecution is entitled to prove its case by evidence of its own
choice ... ." OldChiefv. US. , 519U.S.172(1997).
(Dkt. No. 42-4 at 4 - 5.) Petitioner contends the court oversimplified the issue, misapplied the
Supreme Court' s reasoning, and ignored relevant cases holding that a prosecutor may not make an
"affirmative misrepresentation" regarding the "scope and nature of its case-in-chief which
misleads the defense. (Dkt. No. 137 at 5.) Petitioner's objections to Ground One simply re-asserts
the same argument. (Dkt. No. 149 at 2.)
The Magistrate Judge carefully considered this argument in the R & R, examined each of
the Supreme Court decisions Petitioner put forth as "relevant and controlling," and found those
cases relevant, but not dispositive of whether the State' s actions in this case constituted
prosecutorial misconduct. (See Dkt. No. 142 at 43 - 47.) Therefore, the R & R concluded that

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Petitioner failed to show the state court unreasonably applied federal law. The Court agrees.
As the Magistrate Judge correctly noted, the law holds prosecutors, as representatives of
the state, to high ethical standards. See, e.g., Berger v. United States, 295 U.S. 78, 88 (1935) ("The
prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern at all . .. ").
Accordingly, prosecutors are bound by a "duty to refrain from improper methods calculated to
produce a wrongful conviction." Id. See Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor
cannot withhold exculpatory evidence); Napue v. Illinois, 360 U.S. 264, 269 (1959) (prosecutor
cannot fail to correct false evidence); Mooney v. Holohan, 294 U.S. 103, 112 (1935) (prosecutor
cannot present perjured testimony). However, Petitioner has presented no decision, nor is the
Court aware of any case, requiring a prosecutor to correct defense counsel's undisclosed
assumptions.

Instead, cases cited by Petitioner indicate the concern is with affirmative

misrepresentations or misleading actions. See Laniford v. Idaho, 500 U.S. 110 , 111 S. Ct. 1723
(1991) (finding Constitutional violation where state sought death penalty after providing notice
that it was not seeking the death penalty).
To the contrary, here, the State never represented that it would introduce the statement in
the guilt phase. (Dkt. Nos. 39-3 at 67 - 68, 100; 40-1 at 22.) Further, while Petitioner challenges
the application of Old Chief, Petitioner does not challenge the state court's factual findings, which
are supported by the record, that the State trial counsel made a tactical decision, well before trial,
not to introduce Petitioner's statement in the guilt phase, unless Petitioner testified. (Dkt. Nos. 393 at 92 - 93, 97, 101; 40-1 at 103 - 104.) Therefore, there is support in the record that the
prosecutors contested the March 24, 1995 statement's admissibility at the Jackson v. Denno to
determine whether it could introduce the statement on cross-examination if Petitioner should take

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the stand, which he did not, or later in the sentencing phase. (Dkt. No. 39-3 at 91 - 92.) Therefore,
there is no dispute of material fact that the state court decision finding no prosecutorial misconduct
was not contrary to, or an unreasonable application of, federal. law and was not an unreasonable
determination of the facts.
ii. Failure to Concede Guilt

Regarding trial counsel's failure to concede guilt, the South Carolina Supreme Court held:
Assuming trial counsel were deficient in not changing their trial strategy to gain
credibility with the jury, petitioner has failed to meet his burden of showing he was
prejudiced. Considering the evidence the State presented during the guilt phase of
trial, petitioner cannot show the outcome of the penalty phase would have been
different had trial counsel conceded petitioner's guilt in the guilt phase.
(Dkt. No. 42-4 at 6.) Petitioner asserts the state court unreasonably applied Strickland in finding
that there was no prejudice from trial counsel's decision not to concede guilt after Terry's
confession statement was excluded by the trial court. (Dkt. No. 137 at 14.) Petitioner further
argues that South Carolina Supreme Court's prejudice analysis was improper under Strickland
since it improperly weighed the strength of the State's evidence in determining whether the failure
to concede guilt was prejudicial. (Id.)
However, as accurately noted by the Magistrate Judge, the South Carolina Supreme Court
relied on a prejudice standard nearly identical to the standard articulated in Strickland. Further,
the South Carolina Supreme Court did not apply a presumption, as Petitioner implies, and instead
a reasonable reading of the court's decision indicates that the court evaluated the State's guiltphase evidence and determined there was no "reasonable probability" that the failure to concede
guilt changed the outcome. Strickland, 466 U.S. at 694. The Court therefore cannot find an
unreasonable application of law or fact. See Tice v. Johnson, 647 F.3d 87, 108 (4th Cir. 2011)
("Mindful of the deference owed under AEDP A, we will not discern an unreasonable application

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of federal law unless 'the state court's decision lies well outside the boundaries of permissible
differences of opinion. "'). 2 For these reasons and the reasons stated in the R & R, the Court agrees
with the Magistrate Judge's assessment that the state court did not unreasonably apply Strickland
or unreasonably interpret the facts in finding that, in this case, counsel's decision not to concede
guilt in the guilt phase did not prejudice Petitioner in the sentencing phase. Therefore, the Court
denies Ground One.

B. Procedurally Defaulted Grounds
i. Standard of Review
Petitioner did not raise the remaining grounds in his initial PCR action. 3 These claims are,
therefore, procedurally defaulted. However, Petitioner argues that the default should be excused
under Martinez v. Ryan, 566 U.S. 1 (2012). In Martinez, the Court held that ineffective assistance
of counsel "at initial-review collateral review proceedings may establish cause for a prisoner's
procedural default of a claim of ineffective assistance at trial" where:
(1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim;
(2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel
during the state collateral review proceeding; (3) the state collateral review
proceeding was the "initial" review proceeding in respect to the "ineffectiveassistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective
assistance of trial counsel [claim] . . . be raised in an initial-review collateral
proceeding."

Trevino v. Thaler, 569 U.S. 413, 423 (2013) quoting Martinez, 566 U.S. at 14, 17-18.

2

Petitioner's reliance on Florida v. Nixon, 543 U.S. 175, 125 S. Ct. 551 (2004) is misplaced. To
begin, the case makes clear that conceding guilt, on its own, does not assure a life sentence.
Additionally, to the extent Petitioner relies on Nixon to argue that Petitioner's trial counsel lost
credibility by promising to admit the confession and then failing to do so, necessitating a
concession of guilt, the statements were ultimately admitted in the sentencing phase. (Dkt. No. 373 at 74-81.) Therefore the jury was aware at the time of sentencing that Petitioner's trial counsel
did not, in fact, mislead the jury regarding the confession.
3

He presented them to the highest state court in his second PCR application, which was denied as
successive.
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Thus, for each of the remaining grounds, Petitioner must "demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that . . . the claim
has some merit," and that his PCR counsel were ineffective for not raising that claim. Martinez,
566 U.S. at 14.
ii. Motion to Strike and Request for an Evidentiary Hearing

Petitioner provided additional exhibits outside of the record with his habeas petition and
requested an evidentiary hearing in support of his procedurally defaulted grounds. (Dkt. Nos. 16;
13 7.) Respondents moved to strike all but two of those exhibits, asserting they go to the merits of
his underlying claims, not solely whether he can show cause and prejudice to excuse their
procedural default, and Petitioner does not satisfy the exceptions allowing a court to consider
evidence outside of the record. (Dkt. No. 131at2-9). See 28 U.S.C. § 2254(e)(2). Respondents
also oppose Petitioner's request for an evidentiary hearing. (Dkt. No. 129 at 76.)
Regarding the motion to strike, the AEDP A generally prohibits federal habeas courts from
considering extra-record evidence when applicants have failed to develop the factual bases for
their claims in state courts. See Schriro v. Landrigan, 550 U.S. 465, 473 n. l (2007) citing 28 U.S.C.
§ 2254(e)(2). However, expanding the record is appropriate in some instances, such as to assess
whether cause and prejudice excuse a petitioner' s procedural default of a claim. Fielder v.
Stevenson, No. 2: 12-cv-412-JMC, 2013 WL 593657, at *3 (D.S.C. Feb. 14, 2013). The Magistrate

Judge recommended denying the motion to strike and considering Petitioner's exhibits for the
purpose of assessing cause and prejudice. No Party has objected to this holding, and the Court
finds it proper to consider the evidence to assess cause and prejudice, and therefore denies the
motion to strike.
Regarding the evidentiary hearing, after considering Petitioner's extra-record exhibits, the

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Magistrate Judge found that the Petitioner failed to allege any substantial underlying claims of
ineffective assistance of trial counsel and, thus, recommended denying his request for an
evidentiary hearing on the defaulted grounds . (Dkt. No. 142 at 143--44.) Petitioner specifically
objects and asserts he is entitled to an evidentiary hearing in general, and specifically in relation
to Grounds Two and Four. (Dkt. No. 149 at 3 - 6.)
"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) (citations omitted). Therefore, " [w]here 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). See also 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 in
federal court in order to develop such a claim."). As explained below, the Court agrees with the
Magistrate Judge and finds Petitioner has not made specific factual allegations that, if true, would
entitle him to habeas relief and has failed to demonstrate the substantiality of his underlying
ineffective assistance of counsel claims.

Therefore, the Court finds that the Magistrate Judge

properly denied Petitioner' s request for an evidentiary hearing.
As the Court has denied the motion to strike, the Court assess Grounds Two, Three, Four

-16-

and Five below with the benefit of Petitioner's submitted evidence to assess whether the procedural
default should be excused.

C. Ground Two
In Ground Two, Petitioner asserts he was denied the effective assistance of counsel because
one of his trial attorneys, Stone, was operating under an actual conflict of interest.

While

representing Petitioner, Stone also served as a part-time prosecutor in another judicial circuit and
as a counsel for the Insurance Reserve Fund ("IRF"), an entity that insures state agencies and local
governments. The Magistrate Judge found Petitioner failed to adequately show that Stone labored
under an actual conflict of interest or that Petitioner's PCR counsel were ineffective for not raising
this claim. (Dkt. No. 142 at 62-69.) The Court agrees with the Magistrate Judge's analysis.
"A criminal defendant's Sixth Amendment right to effective assistance of counsel includes
a right to counsel unhindered by conflicts of interest." Mickens v. Taylor, 240 F.3d 348, 355 (4th
Cir. 2001), ajf'd, 535 U.S. 162 (2002). "To establish ineffective assistance of counsel based on a
conflict of interest that was not raised before the trial court, the [petitioner] must demonstrate that
(1) counsel operated under 'an actual conflict of interest' and (2) this conflict 'adversely affected
his lawyer's performance."' Woodfolk v. Maynard, 857 F.3d 531, 553 (4th Cir. 2017) quoting

Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). "After a petitioner satisfies this two-part test,
prejudice is presumed." Mickens, 240 F.3d at 355.
"A [petitioner] has established an adverse effect if he proves that his attorney took action
on behalf of one client that was necessarily adverse to the defense of another or failed to take action
on behalf of one because it would adversely affect another." Id. at 360. To make this showing:
[f]irst, the petitioner must identify a plausible alternative defense strategy or tactic
that his defense counsel might have pursued. Second, the petitioner must show that
the alternative strategy or tactic was objectively reasonable under the facts of the
case known to the attorney at the time of the attorney's tactical decision .... [T]he

-17-

petitioner must show that the alternative strategy or tactic was "clearly suggested
by the circumstances." Finally, the petitioner must establish that the defense
counsel's failure to pursue that strategy or tactic was linked to the actual conflict.
Id. at 361 (citations omitted).

Petitioner alleges Stone's simultaneous representation of the IRF created two conflicts:
first, that the interests of South Carolina were adverse as the State was seeking the death penalty
against Petitioner, and; second, that Stone received a substantial part of his income from the IRF,
and therefore had a personal stake in continuing to receive appointments. (Dkt. No. 137 at 31.)
Further, Petitioner focuses on Stone's roles as a part-time solicitor in another circuit in South
Carolina and previously as a special prosecutor in a single case in the same judicial circuit, which
Petitioner asserts was an additional conflict of interest. (Id. at 34- 35.)
Regardless of whether Stone's representation of the IRF or simultaneous work as a
prosecutor in another judicial circuit, 4 Petitioner has failed to create any dispute of fact that there
was an adverse effect from any alleged conflict. As the Magistrate Judge correctly noted, while
the Petitioner made general conclusory allegations, the Petitioner has not identified any specific
deficiency in his briefing, objections, or exhibits regarding Stone's performance that relates to
Stone's alleged conflict. To the extent Petitioner is attempting to rely the other grounds for which
he alleges he received ineffective assistance of trial counsel, Petitioner has not alleged a link
between those deficiencies and Stone's alleged conflict. Thus, Petitioner fails to adequately allege
that Stone labored under an actual conflict of interest that adversely effected Stone's performance.
Accordingly, Petitioner has not alleged a substantial underlying ineffective assistance of counsel

4

The Fourth Circuit has declined to find a per se conflict on similar facts. See Beaver v. Thompson ,
93 F .3d 1186, 1193 (4th Cir. 1996) (declining to find per se conflict of interest where defense
counsel was part-time prosecutor in neighboring county). There is also no evidence that Stone
remained a special prosecutor in the Eleventh Judicial Circuit, where Lexington County is located,
at the time of Petitioner's trial.

-18-

claim for this defaulted ground, and therefore ground two must be denied.
Regardless of failing to raise a substantial claim, necessary to overcome a procedural
default, Petitioner nonetheless argues that PCR counsel should have investigated Stone's potential
conflict. In his objections, Petitioner maintains that PCR counsel had an affirmative obligation to
investigate Stone's conflicts of interest, that Petitioner has shown through affidavits that PCR
counsel did not have a strategic reason for not investigating this claim and an "[a]n evidentiary
hearing is now necessary" to determine cause and whether Petitioner was prejudiced by Stone's
alleged conflicts. (Dkt. No. 149 at 3.)
However, as explained above, even had PCR counsel investigated the alleged conflict,
there would be no cause to set aside the default as the underlying claim is not substantial. Further,
Petitioner points to the fact that PCR counsel "was aware that [Stone] had some connection with
the Insurance Reserve Fund," and had spoken to another attorney who raised the same issue in
another capital PCR proceeding, Aleksey v. South Carolina, though there is no indication PCR
counsel was aware of Stone's work as a part-time prosecutor. (Dkt. Nos. 16-3 at 11, 13; 16-4 at
33.) 5 However, while Petitioner argues that this failure to more fully investigate and present the
claim prejudiced Petitioner, "because if they had raised the issue, it would have been resolved in
[Petitioner's] favor," record evidence demonstrates the contrary. (Dkt. No. 137 at 36.)
Notably, in Aleksey v. South Carolina, PCR counsel dedicated a substantial portion of their
case to similar issues surrounding Stone's conflicts of interest stemming from his work for the IRF
and as a prosecutor while representing Aleksey at trial. See Aleksey v. Stirling, 5:14-3016-JMC-

5

PCR counsel, however, was not aware that Stone was employed as a part-time solicitor in another
judicial circuit. Regardless, as explained above, the underlying conflict of interest claim is not
substantial.

-19-

KDW, Dkt. Nos. 43-4 at 192 - 200; 43-5 at 1 - 3; 44-1 at 27 - 53 6 (hereinafter "Aleksey Dkt.").
Despite the fact that Aleksey's PCR counsel raised and explored these issues in depth, the PCR
court dismissed those grounds (Id.), and the South Carolina Supreme Court denied Aleksey' s
appeal. (Aleksey Dkt. No. 41-10.) The Court offers no opinion on the PCR court's decision or
analysis in Aleksey, but notes only that the Court cannot assume in Petitioner' s case the state courts
would have reached a different conclusion. Accordingly, even if PCR counsel was deficient for
not further investigating this claim, Petitioner has failed to demonstrate how that alleged deficiency
in failing to investigate Stone's alleged conflict of interest creates a "reasonable probability" of a
different outcome.
Therefore, as discussed above, Petitioner has not presented facts creating a dispute that
Stone was ineffective, and the Court finds his claim not to be substantial under Martinez, and,
further, Petitioner failed to show that PCR counsel's failure to investigate was prejudicial. In
addition, the Court rejects Petitioner's request for an evidentiary hearing as his underlying claim
lacks merit. Therefore, Ground Two is denied.
D. Ground Three
In Ground Three, Petitioner alleges that trial counsel was ineffective in failing to conduct
an adequate and appropriate voir dire to identify to at least two jurors who allegedly believed the
death penalty should be applied automatically upon conviction of murder. (Dkt. No. 16 at 22.)
Petitioner focuses on the trial court's refusal to permit Petitioner' s trial counsel from asking
potential jurors about "exposure to ...psychiatrists." (Dkt. No. 31-1 at 44 - 45 .) Specifically, in
attempting to make a record, Fullwood indicated that trial counsel had planned to ask potential

6

The Court may take judicial notice of its own records. See Colonial Penn Ins. Co. v. Coil, 887
F.2d 1236, 1239 (4th Cir. 1989) (" [T]he most frequent use of judicial notice is in noticing the
content of court records.").

-20-

jurors "their prior exposure to the field of psychiatry ... their general attitudes about the field of
psychiatry[, and] their knowledge of and opinion of the field ofD.N.A. testing, genetic biology."
(Id. at 53 - 54.) The trial court prohibited all of this testimony, instead holding that counsel was

not allowed to probe "exactly what this juror' s particular thrust is on a very minor issue." (Id. at
52 - 53.) Instead, the trial court, at the request of Petitioner's trial counsel, read the statutory
mitigating circumstances to each juror and asked if the juror could consider the evidence. (Dkt.
No. 34-1at55.)
Petitioner focuses on two jurors, Juror #35 and Juror #214, who Petitioner alleges both
believed the death penalty should be automatically applied upon a conviction of murder, and
further that Petitioner was prohibited from asking relevant questions to identify their beliefs. Juror
#35, responding to the trial court, answered that the juror could return a sentence of life in prison
or a sentence of death "depending upon the particular facts and circumstances[.]" (Dkt. No. 34-2
at 21 - 22.) Further, after counsel posed the hypothetical based on "finding somebody guilty of
murder and another- like a rape or a burglary," Juror #35 again confirmed to trial counsel that the
juror could consider a sentence of either life in prison or the death penalty. (Id. at 26.)
Turning to Juror #214, the juror similarly answered that the juror could return a sentence
of life in prison or a sentence of death "depending upon the particular facts and circumstances."
(Dkt. No. 34-3 at 24 - 25.) Similarly, in responding to questioning from counsel, counsel asked
the juror whether, after the juror "already decided somebody is guilty of murder and guilty of rape
or burglary or both," the juror could consider either a life sentence or a death sentence. (Id. at 29
- 31.) Juror #214 similarly confirmed the juror could consider either option. (Id.)
The Court therefore agrees with the reasoning of the Magistrate Judge and can find no
evidence that the trial court erred in applying the law or that trial counsel was ineffective in

-21-

performing an adequate voir dire or preserving the issue for appeal. Petitioner focuses extensively
on Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222 (1992), which holds that:
A defendant on trial for his life must be permitted on voir dire to ascertain whether
his prospective jurors function under such misconception. The risk that such jurors
may have been empaneled in this case and "infected petitioner's capital sentencing
[is] unacceptable in light of the ease with which that risk could have been
minimized." . .. Petitioner was entitled, upon his request, to inquiry discerning those
jurors who, even prior to the State's case in chief, had predetermined the terminating
issue of his trial, that being whether to impose the death penalty.
Id. at 735 - 736 (citations omitted). However, here, Petitioner was permitted to do exactly what

Morgan requires, namely, he inquired whether each of these jurors had predetermined whether or
not to impose the death penalty, with each one confirming, with the benefit of knowing both the
statutory mitigating factors and that they would have already found Petitioner guilty of murder
plus an additional criminal act, that they could impose either a sentence of life in prison or death.
Therefore, the Court cannot find that the trial court improperly curtailed Petitioner's right for an
adequate voir dire. See United States v. Tipton, 90 F.3d 861, 878 (4th Cir. 1996) ("a voir dire
[must allow] .. . an inquiry sufficient to ensure-within the limits of reason and practicality-a jury
none of whose members would 'unwaveringly impose death after a finding of guilt' and hence
would uniformly reject any and all evidence of mitigating factors, no matter how instructed on the
law.") (citations omitted). Petitioner has failed to present any Supreme Court, or Fourth Circuit,
case law to this court indicating that he was entitled to ask the questions trial counsel sought to
ask. Indeed, as noted by the Magistrate Judge and the trial court, such questions are impermissible
under South Carolina law. Without some binding precedent, and in light of the Supreme Court
precedent indicating the contrary, the Court cannot find that there was any unreasonable or
contrary holding of law or unreasonable finding of fact. Therefore, Petitioner's claim regarding
an inadequate voir dire has no merit and is not substantial and the procedural default is not

-22-

excused. 7
Further, as the Magistrate Judge correctly held, even if trial counsel was deficient, there is
no indication of prejudice from the failure to conduct a more robust voir dire. To the contrary, the

voir dire confirmed that the jurors would not automatically vote for the death sentence if they
found Terry guilty of murder, including if they found him guilty of murder in addition to one of
the other charges. It is unclear how any additional voir dire may have changed the outcome of the
jury's decision or the jury makeup, and trial counsel, in maintaining the record, did not identify
any questions which would have addressed the issue raised here. Therefore, Petitioner further does
not show ineffective assistance of PCR counsel in failing to raise this claim as there is no indication
that it was unreasonable to raise this claim or that the failure to raise the claim caused prejudice,
as there is no indication it has merit.
As the claim is not substantial, and indeed the trial court's decisions were reasonable under
federal law, and there is no showing of prejudice, the procedural default is not excused. Therefore,
Ground Three is denied.

E. Ground Four
Petitioner asserts his trial counsels' mitigation investigation was deficient in failing to
investigate, discover and present to the jury evidence of abuse as a child and that counsel failed to
investigate, develop and present evidence that would support a finding that Petitioner was guilty
but mentally ill ("GBMI"). (Dkt. No. 16 at 26.)

i. Physical Abuse

7

Petitioner also alleges trial counsel were inadequate in failing to create a sufficient record for
appeal. To the contrary, Fullwood proffered the questions she would have asked potential jurors.
(Dkt. No. 34-1 at 53 - 54.) There is therefore no merit to this contention and the claim is not
substantial.
-23-

The Magistrate Judge examined the defense's sentencing phase case and found trial
counsel were not deficient because trial counsel presented some evidence of Petitioner's childhood
abuse, Petitioner has not presented any evidence that trial counsel knew more information about
the abuse than was presented and cannot be faulted for their experts ' failure to convey that
information, and the record suggests counsels' expert did not find the abuse significant at the time.
(Dkt. No. 142 at 104-06.)

Petitioner does not specifically object to any of these findings but

focuses instead on his GBMI claim and the Magistrate Judge ' s assessment of this ground without
holding an evidentiary hearing. (See Dkt. No. 149 at 5.) Reviewing the record, the Court agrees
with the R & R's determination.
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 circumstances, applying a heavy measure of
deference to counsel' s judgments.
466 U.S. at 690 - 91. Thus, counsel must conduct a reasonable investigation, thorough enough to
make an informed decision regarding which mitigating evidence to present. In assessing counsel ' s
investigation, the Court "must conduct an objective review of their performance, measured for
'reasonableness under prevailing professional norms,' which includes a context-dependent
consideration of the challenged conduct as seen ' from counsel's perspective at the time. "' Wiggins

v. Smith, 539 U.S. 510, 523 (2009) quoting Strickland, 466 U.S. at 688 - 689.
During the sentencing phase, the defense team ' s social work expert, Jan Vogelsang,
testified that Petitioner experienced violence as a child and specifically testified to incidents of

-24-

abuse at home, such as where his brothers were arrested for beating up Petitioner, and that
Petitioner's father broke Petitioner' s collarbone with a board. (Dkt. No. 37-4 at 93.) Petitioner' s
mother, Patricia Terry, also testified that Petitioner and his brothers had physical altercations, that
Petitioner "had a lot of run-ins with his dad" and also described the incident where Petitioner' s
father broke Petitioner' s collarbone. (Dkt. Nos. 37-3 at 139; 37-4 at 1.)
Based on her extensive review of Petitioner's personal history, Vogelsang concluded that
Petitioner' s childhood environment was extremely neglectful and testified regarding potential
impacts of that neglect. (Dkt. No. 37-4 at 78, 92-93.) As part of that discussion, Vogelsang
discussed violence at home, but ended by stating, "Now, I'm not saying all of this to imply that
family violence was the same in this family as it is in a lot of families because that's not what I
found here. There is some violence. I would not say it' s the kind of pervasive violence you find
in a lot of homes where battering takes place." (Dkt. No. 37-4 at 93.)
Petitioner contends Vogelsang and the defense team's mitigation investigator, Vivian
Massey, uncovered other evidence of abuse and that trial counsel were deficient for not presenting
that evidence to the jury.

There is some evidence suggesting that Petitioner and his family

informed Vogelsang and Massey that Petitioner' s father beat Petitioner with a belt, beat Petitioner
so hard he would bleed, saw his children as workhorses and would not allow them to play, would
tie the children to a tree and have them beat each other. (Dkt. No. 16-3 at 33 - 48.)
However, Fullwood, who was in charge of this portion of the penalty phase presentation,
states in her affidavit:
I do not recall making any strategic decision to limit the mitigation testimony of
Gary's family members or to avoid presentation of evidence that he had suffered
significant abuse as a child. It was my intent to present all of the evidence of that
nature that we could and all that I was aware of was presented.
(Dkt. No. 16-2 at 3.) Therefore, the evidence shows that counsel, through the defense team, did

-25-

discover relevant information about abuse and counsel intended to present all evidence regarding
abuse to the jury. Thus, to the extent that any deficiency exists, it falls to Vogelsang or Massey for
not conveying the full extent of Petitioner's abuse to counsel, and not to counsel. It is not
unreasonable or against prevailing professional norms for counsel to rely on a qualified mitigation
investigator or other experts, see Rhodes v. Hall, 582 F.3d 1273, 1283 (11th Cir. 2009), and there
is no right to effective assistance of expert witnesses or mitigation investigators, nor are their
deficiencies automatically imputed to counsel, see Wilson v. Greene, 155 F.3d 396, 401 (4th Cir.
1998) ("The Constitution does not entitle a criminal defendant to the effective assistance of an
expert witness.").
Further, Vogelsang' s own testimony reveals her position, at the time of trial, that the type
of violence Petitioner experienced was not "the kind of pervasive violence you find in a lot of
homes where battering takes place." (Dkt. No. 37-4 at 93.) Vogelsang expressly focused her
testimony on neglect, rather than abuse. (Dkt. No. 37-4 at 92-93.) Trial counsel had every right
to rely on their expert's informed assessment. See Wilson , 155 F.3d at 403 (finding attorneys are
not required to second-guess the contents of expert reports).
Vogelsang now offers a different opinion, finding Petitioner's abuse significant and
speculating as to why she would not have included additional information in her testimony. (Dkt.
No. 16-4 at 3.) However, Vogelsang admits she "could recall almost nothing about this case."
(Id.) Her speculation is not enough to overcome contradictory record evidence and create a

genuine issue of fact and does not rebut the strong presumption that counsel performed reasonably.
Petitioner also asserts counsel and the defense team failed to discover additional details of
Petitioner's father's abuse. He supports this claim with affidavits from Petitioner' s mother, sister,
uncle, and former sister-in-law. (Dkt. No. 16-4 at 5 - 23.) However, Vogelsang testified at trial

-26-

that she interviewed all but one of these witnesses. (Dkt. No. 37-4 at 74 - 75, Vogelsong stating
she interviewed Petitioner' s mother five times, Petitioner's sister, and Petitioner's uncle). In
addition, Vogelsang interviewed other family members who would have personal knowledge of
Petitioner' s father' s abuse, including Petitioner' s other sister and two brothers. (Id.) Further,
Vogelsang met with Petitioner four times. (Id. at 74.) Trial counsel testified they also met with
Petitioner on numerous occasions, as did the team' s forensic psychiatrist, Dr. Donna SchwartzWatts, Massey, and an investigator. (See Dkt. No. 39-3 at 20-21, 58; Dkt. No. 40-1 at 10-11.)
It would be "unreasonable to discount to irrelevance the evidence of [Petitioner's] abusive

childhood." Porter v. McCollum , 558 U.S. 30, 43 (2009). However, the record suggests counsel
conducted a thorough investigation of this issue and they cannot be held accountable for
information Petitioner and his family failed to provide or their experts failed to convey. See

Wilson, 155 F.3d at 403 ; DeCastro v. Branker, 642 F.3d 442, 456 (4th Cir. 2011) ("Regardless,
the state court did not act unreasonably in refusing Petitioner' s attempt to upend his conviction
and sentence based on the information that he failed to timely provide to counsel.").
Considering the record and evidence before the Court, the Court finds Petitioner' s
allegation that trial counsel conducted an unreasonable investigation into his childhood abuse lacks
merit and is therefore not a substantial claim. Therefore, Petitioner fails to meet his burden under

Martinez and this claim is procedurally defaulted and subject to summary judgment.
ii. Guilty But Mentally Ill
Petitioner further asserts trial counsel were ineffective for failing to share details of his
abuse with the defense team' s forensic psychiatrist, Dr. Schwartz-Watts, which could have been
used to testify that Petitioner was GBMI. (Dkt. No. 137 at 47-48.) As the Magistrate Judge
correctly held, nothing in the record, including Dr. Schwartz-Watts' s affidavit, directly supports

-27-

this assertion.
In South Carolina,
[a] defendant is guilty but mentally ill if, at the time of the commission of the act
constituting the offense, he had the capacity to distinguish right from wrong as
defined in Section 17-24-1 O(A), but because of mental disease or defect he lacked
sufficient capacity to conform his conduct to the requirements of the law.
S.C. Code Ann. § 17-24-20(A).
At trial, Dr. Schwartz-Watts opined that Petitioner suffered from an organic mental
disorder, not otherwise specified. (Dkt. No. 37-5 at 57.) She explained that Petitioner's brain was
damaged or dysfunctional in a way that impacted his thinking, feelings, and behavior. (Id.) Dr.
Schwartz-Watts indicated his brain damage would cause Petitioner to be paranoid, suspicious,
moody, aggressive, explosive, and very impulsive and to experience emotions out of context. (Id.
at 57-58 .) She testified that some of Petitioner' s prior violent acts, Ms. Jackson' s murder, and
Petitioner's confession were all consistent with her diagnosis and showcased Petitioner's paranoia
and memory loss. (Id. at 59-61.)
To form her opinion, Dr. Schwartz-Watts reviewed Petitioner' s birth records, school
records, prison records, hospital records, psychiatric records, and legal records. (Id. at 43-44.)
She also interviewed Petitioner's mother and met with Petitioner on "numerous occasions." (Id.
at 43, 45 .) Dr. Schwartz-Watts ordered blood tests to test for medical conditions that could account
for Petitioner's psychiatric condition, reviewed neuropsychological testing by another defense
expert, and consulted with a neurologist and two forensic psychiatrists. (Id. at 44.) However, Dr.
Schwartz-Watts states trial counsel did not provide her with the social history information gathered
by Massey or Vogelsang and she was, thus, unaware of the extent of Petitioner' s abuse. (Dkt. No.
16-4 at 25-26.)
In 2012, after receiving the new information, Dr. Schwartz-Watts reevaluated Petitioner

-28-

and found he "suffered effects from trauma," such as intrusive thoughts, conflict avoidance,
unhealthy and overprotective relationships, and drug use. (Id. at 26.) She also noted the physical
abuse could have contributed to Petitioner' s brain dysfunction.

(Id.)

Dr. Schwartz-Watts

concludes by stating that she was never asked about the possibility of pleading GMBI, but "[h]ad
I been asked, I believe that this evidence certainly could have been presented during the trial."
(Id.)

There are multiple independent reasons why this fails to raise a substantial claim of
ineffective assistance of trial counsel. To begin, assuming the truth of Dr. Schwartz-Watts's
affidavit, trial counsel made a decision to not admit guilt. This is consistent with trial counsel's
PCR testimony. At the PCR evidentiary hearing, Stone indicated they never engaged in plea
negotiations and the solicitor's office never offered a plea. (Dkt. No. 39-3 at 66.) Further, Stone
testified that they decided not to concede guilt as "we felt like the best angle we might have, other
than the organic brain damage, was that the jury would have some type of residual doubt." (Id. at
66-67.) Based on the evidence presented, there is no indication that a viable option existed to
enter a plea of GMBI, or indeed that trial counsel did not make a reasoned tactical decision that
they believed offered them the "best angel" to avoid a death penalty. Harrington, 562 U.S. at 106
("Rare are the situations in which the 'wide latitude counsel must have in making tactical
decisions ' will be limited to any one technique or approach.") (quotations omitted).

Most

importantly, there is no evidence that any of the experts who examined Terry provided any relevant
information to Petitioner' s counsel which would have alerted the trial counsel that GBMI was a
viable option. Again, as above, there is no claim for ineffective assistance of an expert witness.
Petitioner's only argument that counsel were ineffective for not providing with information
about Petitioner's childhood abuse to Dr. Schwartz-Watts relates to Dr. Schwartz-Watts' inability

-29-

to then use that information to support a GBMI plea. 8 (Dkt. Nos. 16 at 29- 30; 137 at 47 - 48.)
However, none of the effects of trauma Dr. Schwartz-Watts found during her 2012 reevaluation
suggest Petitioner could not conform his conduct to the requirements of the law when he killed
Ms. Jackson-the relevant GBMI issue. Further, Petitioner would have had to be amenable to
pleading guilty, which the record does not indicate was the case. Thus, there is further no evidence
in the record that providing Dr. Schwartz-Watts with the details of Petitioner' s childhood abuse
would have supported a GBMI defense.
Petitioner has not alleged information suggesting that he had a viable GBMI plea, that he
would have been willing to plead guilty, that trial counsel knew that a GMBI plea was available
or, assuming without deciding that it was available, that trial counsel were deficient for failing to
pursue a GBMI plea as opposed to their other reasoned trial strategy. Therefore, Petitioner has
failed to demonstrate that he has a substantial claim for ineffective assistance of counsel on Ground
Four. Regardless, Petitioner objects, asserting that he should have an opportunity to present
evidence at an evidentiary hearing to resolve those issues. (Dkt. No. 149 at 5.) The Court
disagrees. Petitioner has failed to allege how trial counsel were deficient for not pursuing this
strategy. Therefore, the claim is not substantial and Ground Four should be denied.

8

The Court notes that Petitioner overstates the contents of Dr. Schwartz-Watts' s and Fullwood' s
affidavits. Petitioner states that "had Dr. Watts been provided all of the available information
AND been asked the question, she would have been prepared to testify that [Petitioner] meets the
'standard of guilty but mentally ill based on his significant brain dysfunction."' (Dkt. No. 16 at
29-30) (emphasis in original). (See also Dkt. No. 137 at 47-48). However, in her affidavit, Dr.
Schwartz-Watts states merely that she found effects of trauma during her reevaluation and that she
could have presented that evidence during trial. (Dkt. No. 16-4 at 26.) Dr. Schwartz-Watts does
not express an opinion as to whether Petitioner met the GMBI standard or that she could have
testified that he meets the standard. In addition, Petitioner states, "as Fullwood indicates, [trial
counsel] never even considered a defense of guilty but mentally ill even though they possessed
evidence supporting that diagnosis. " (Dkt. No. 137 at 48.) However, Fullwood states only that she
does "not recall discussing whether to pursue a defense of [GMBI]." (Dkt. No. 16-2 at 3.)

-30-

iii. Prejudice
For the sake of completeness, the Court also agrees with the Magistrate Judge's finding
that Petitioner has not shown any prejudice resulting from trial counsels' alleged deficiencies under
Ground Four. 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, 558 U.S. at 41. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Strickland, 466 U.S. at 694. To assess that probability,
the Court must consider "the totality of the available mitigation evidence-' both that adduced at
trial, and the evidence adduced in the habeas proceeding'-and 'reweig[h] it against the evidence
in aggravation."' Porter, 558 U.S. at 41 quoting Williams v. Taylor, 529 U.S. 362, 397-98
(2000)). 9
The Court fully adopts and incorporates the R & R's thorough summary of the aggravating
and mitigating evidence presented throughout the sentencing phase of Petitioner's trial. (See Dkt.
No. 142 at 91-96, 114-126.) The Court will not restate the mitigation and aggravation evidence
presented in great detail by the Magistrate Judge. However, in brief, the State portrayed Petitioner
as a violent individual with a propensity for violence against women, with evidence that Petitioner
stabbed a prostitute, abused his first wife, and assaulted many other individuals throughout his life.
Additionally, the State presented evidence of other criminal activity by Petitioner, and detailed
evidence regarding Petitioner's burglary, rape and murder of Ms. Jackson. Petitioner's trial team,
in contrast, focused on Petitioner's organic brain injury as a likely cause of his violent, impulsive

9

Even if the jury had found Petitioner GBMI, the law required Petitioner to "be sentenced ... as
provided by law for a defendant found guilty." S.C. Code Ann.§ 17-24-70. In South Carolina, that
includes the possibility of a death sentence. See State v. Wilson, 413 S.E.2d 19, 22 (S.C. 1992).
Thus, the same prejudice analysis for sentencing would apply whether the jury found Petitioner
guilty or GBMI.
-31-

behavior. Additionally, witnesses, including family members and experts, described Petitioner's
upbringing. Looking at all the evidence, both in the record and as detailed by the Magistrate Judge,
the Court agrees with the R & R that there is no reasonable probability that the jury would have
reached a different sentencing decision if presented with the omitted evidence of childhood abuse.

See Strickland, 466 U.S. at 700 ("Given the overwhelming aggravating factors, there is no
reasonable probability that the omitted evidence would have changed the conclusion that the
aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence
imposed.").
Accordingly, Petitioner has failed to adequately allege a substantial underlying ineffective
assistance of trial counsel claim and thus cannot meet his burden under Martinez to excuse the
procedural default. Ground Four of the petition is therefore denied. Io

F. Ground Five
In Ground Five, Petitioner asserts his trial counsel were ineffective for failing to object to
his ex-wife, Tammy Griffin's, testimony that he raped her once during their marriage and failure
to use certain information to impeach her credibility. (Dkt. No. 16 at 31.) The Magistrate Judge
recommended granting summary judgment on this ground and neither Petitioner nor Respondents

As above, regarding Petitioner's objection to the Court's consideration of this claim without an
evidentiary hearing, the Court finds Petitioner has not alleged any facts that would warrant habeas
relief if proven and, thus, has not shown an evidentiary hearing is needed'. See Schriro v.
Landrigan, 550 U.S. 465, 474 (2007) ("In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an applicant to prove the petition's
factual allegations, which, if true, would entitle the applicant to federal habeas relief."). Here,
given the lack of evidence showing that trial counsel's actions were unreasonable or ineffective,
there is no indication an evidentiary hearing would entitle Petitioner to habeas relief. Therefore,
the Court finds the Magistrate Judge properly considered Petitioner's claims in Ground Four
without convening an evidentiary hearing.
IO

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object to that recommendation.
Petitioner argues trial counsel should have objected based on the State's failure to provide
specific notice of the contents of Ms. Griffin' s testimony. "Only such evidence in aggravation as
the State has informed the defendant in writing before the trial is admissible." S.C. Code Ann. §
16-3-20(B). In its pre-trial Notice of Evidence in Aggravation, the State indicated it planned to
"present evidence as to the Defendant's adult and juvenile character, . .. prior and subsequent adult
and juvenile acts and crimes of violence and bodily harm, ... and other similar characteristics of
[Petitioner], as an adult and a juvenile, by the testimony of victims, witnesses, ... and other
relevant testimony." (Dkt. No. 16-4 at 37.)
Ms. Griffin's testimony falls within this description as a prior act of violence and bodily
harm.

Further, Petitioner's defense team interviewed Griffin and was aware Petitioner had

physically abused her. (See Dkt. No. 16-4 at 40 - 44.) Thus, although Petitioner's trial counsel
may not have known of this particular incident of abuse, counsel knew Griffin was a likely witness
and knew the aggravating nature of her testimony. Petitioner has therefore not demonstrated that
trial counsel acted unreasonably in not objecting, especially where there was general notice and
Petitioner was able to question Griffin during the mitigation investigation.
Petitioner further argues trial counsel should have impeached Ms. Griffin's testimony using
letters she wrote to Petitioner after the rape, after they divorced, expressing her feelings for
Petitioner and a desire to reconcile. (Dkt. No. 16-5 at 2 - 8.) The Court cannot find trial counsel
ineffective for failing to impeach Griffin with letters she wrote to Petitioner. Fullwood, during
cross-examination, took a different tactic with Griffin, focusing on Petitioner's immaturity and
mental issues. (Dkt. No. 37-3 at 36-41.) Indeed, as the Magistrate Judge aptly noted, attempting
to impeach Griffin's testimony could have easily been more damaging, both by seeming to attack

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the credibility of an alleged rape victim and by potentially focusing the jury more on the alleged
rape and Petitioner's violent character.

While Fullwood could have handled the testimony

differently, there is no indication counsel's conduct was deficient.
Finally, contrary to Petitioner's assertion that Ms. Griffin's testimony "offered a picture of
[Petitioner] that suggested he was a serial rapist," (Dkt. No. 137 at 53), this incident was only one
part of the voluminous aggravating evidence, including numerous other acts of violence.
Therefore, as described above, the Court cannot find this failure to object or impeach prejudicial
Petitioner has not provided the Court with any evidence to find counsel deficient for failing
to object to or impeach Ms. Griffin's testimony. Nor has Petitioner shown any resulting prejudice.
Accordingly, Petitioner fails to present a substantial underlying claim of ineffective assistance of
trial counsel and cannot meet his burden under Martinez. Ground Five is therefore denied.
IV.

Certificate of Appealability
The governing law provides:
(c)(2) A certificate of appealability may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability ... shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).

28 U.S.C. § 2253. A prisoner satisfies the standard by demonstrating that reasonable jurists would
find the 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 ). Here, the legal standard for the issuance of a certificate of appealability has not
been met because reasonable jurists would not find it debatable that the state court reasonably
decided Ground One and that the remaining grounds for relief are procedurally barred and no
exception applies. Therefore, a Certificate of Appealability is denied.
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V.

Conclusion
For the foregoing reasons, the Court ADOPTS the R & R (Dkt. No. 142) as the Order of

the Court, GRANTS Respondents' motion for summary judgment (Dkt. No. 130), and DENIES
Respondents' motion to strike (Dkt. No. 131). The Court DENIES Petitioner's petition for a writ
of habeas corpus brought under 28 U.S.C. § 2254 and DENIES a Certificate of Appealability.

AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge
September ~l:-, 2019
Charleston, South Carolina

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