PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-3

MIKAL D. MAHDI,

Petitioner - Appellant,

v.

BRYAN STIRLING, Commissioner, South Carolina Department of Corrections; MICHAEL STEPHAN, Warden of Broad River Correctional Institution,

Respondents - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Timothy M. Cain, District Judge. (8:16-cv-03911-TMC)

Argued: March 9, 2021 Decided: December 20, 2021

Before GREGORY, Chief Judge, AGEE, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Richardson joined. Chief Judge Gregory wrote a dissenting opinion.

ARGUED: Ernest Charles Grose, Jr., GROSE LAW FIRM, LLC, Greenwood, South Carolina, for Appellant. Melody Jane Brown, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. ON BRIEF: Thania Charmani, New York, New York, for Appellant. Alan Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney General, J. Anthony Mabry, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. AGEE, Circuit Judge:

In this death penalty case, Mikal Mahdi (“Mahdi”) appeals from the district court’s

denial of his

petition for habeas relief and his accompanying request for

supplemental expert funding. We granted a Certificate of Appealability (“COA”) on five

issues. See

. For the following reasons, we affirm the district court’s

judgment in its entirety.

I.

As a federal court reviewing a state court’s decision under § 2254, we do so through

a narrow lens, “carefully consider[ing] all the reasons and evidence supporting [it].” Mays

v. Hines,

(2021) (per curiam). We must examine the record in its

entirety as it existed before the state post-conviction relief (“PCR”) court at the time of its

decision. Cullen v. Pinholster,

(2011). Only upon a full review of the

record may we consider whether that court’s judgment was the result of “an error that lies

beyond any possibility for fairminded disagreement.” Mays,

. 1

Unsurprisingly, this case has an extensive procedural history. We begin by

recounting Mahdi’s conduct that gave rise to his convictions and provide an overview of

the plea and sentencing hearings in the South Carolina state trial court (the “trial court”).

We then turn to Mahdi’s first PCR proceeding in state court—which resulted in the

decision we are reviewing here—and focus on his claims alleging ineffective assistance of

1 Internal quotation marks, citations, and alterations have been omitted unless otherwise indicated. 2 counsel (“IAC”) under Strickland v. Washington,

(1984), and its progeny.

After reviewing Mahdi’s second state-court PCR proceeding, we summarize the federal

district court’s denial of his request for supplemental expert funding and his § 2254

petition.

A. The Underlying Conduct

Then-South Carolina Supreme Court Chief Justice Jean Hoefer Toal described

Mahdi’s criminal acts as “particularly heinous,” emphasizing that in her time as a jurist,

she “ha[d] seen few cases where the extraordinary penalty of death was so deserved.”

Mahdi v. State,

, 808–09 (S.C. 2009) (Toal, C.J., concurring). We recite the

following from her opinion concurring in that court’s rejection of Mahdi’s direct appeal

and affirming his death sentence:

On July 14, 2004, [Mahdi], then a resident of Virginia, embarked upon a crime spree that would span four states. [He] stole a .380 caliber pistol from his neighbor, a set of Virginia license plates, and a station wagon. [Mahdi] left Virginia and headed to North Carolina.

On July 15, [Mahdi] entered an Exxon gas station in Winston-Salem, North Carolina armed with the .380 pistol. [He] took a can of beer from a cooler and placed it on the counter. The store clerk, Christopher Jason Boggs, asked [Mahdi] for identification. As Boggs was checking [his] identification, [Mahdi] fatally shot him at point-blank range. [Mahdi] fired another shot into Boggs as he lay on the floor. [Mahdi] then attempted unsuccessfully to open the store’s cash register. [He] left the store with the can of beer, and headed to South Carolina.

Early in the morning of July 17, [Mahdi] approached Corey Pitts as he sat at a traffic light in downtown Columbia, South Carolina. [Mahdi] stuck his gun in Pitts’ face, forced him out of his car, and stole Pitts’ Ford Expedition. [Mahdi] replaced the Expedition’s license plates with the plates he had stolen in Virginia, and headed southeast on I-26.

3 About thirty-five minutes down the road, [Mahdi] stopped at a Wilco Hess gas station in Calhoun County and attempted to buy gas with a credit card. The pump rejected the card, and [Mahdi] spent forty-five minutes to an hour attempting to get the pump to work. Due to his suspicious behavior, the store clerks called the police. Aware that the clerks’ suspicions had been alerted, [Mahdi] left the Expedition at the station and fled on foot through the woods behind the station.

About a quarter to half mile from the station, [Mahdi] came upon a farm owned by Captain James Myers, a thirty-one year veteran law enforcement officer and fireman. [Mahdi] broke into a work shop on the Myers property. Once inside the work shop, [Mahdi] watched television and examined Myers’ gun collection. [Mahdi] found Myers’ shotgun and used the tools in the shop to saw off the barrel and paint it black. [Mahdi] also took Myers’ .22 caliber rifle and laid in wait for Myers.

That day, Myers had been at the beach celebrating the birthdays of his wife, sister, and daughter. Myers had visited with his father before returning to his farm. Upon arriving at the farm, Myers stopped by the work shop, where he was confronted by [Mahdi]. [Mahdi] shot Myers nine times with the .22 rifle. [Mahdi] then poured diesel fuel on Myer’s [sic] body and set the body on fire. [Mahdi] stole Myers’ police-issued truck, and left with Myers’ shotgun, his .22 rifle, and Myers’ police-issued assault rifle.

Later that evening, Myers’ wife, also a law enforcement officer, became worried when Myers did not return home. Mrs. Myers drove to the work shop and discovered Myers’ burned body lying in a pool of blood.

[Mahdi] escaped to Florida, where he was spotted by police on July 21 driving Myers’ truck. Fleeing the police, [Mahdi] abandoned the truck [and proceeded] on foot in possession of the assault rifle. When cornered by police, [Mahdi] abandoned the rifle and was eventually taken into custody.

.

B. The Plea Hearing

On August 23, 2004, the Calhoun County, South Carolina, Grand Jury indicted

Mahdi for Captain Myers’ murder, second-degree burglary, and grand larceny. The State

filed a Notice of Intent to Seek the Death Penalty and a Notice of Evidence in Aggravation,

4 alleging Mahdi killed Captain Myers: (1) “while in the commission of burglary”; (2) “while

in the commission of robbery while armed with a deadly weapon”; and (3) “while in the

commission of larceny with use of a deadly weapon.” J.A. 935 (citing

). The State later filed an amended Notice of Evidence in Aggravation, alleging an

additional statutory aggravating factor: (4) the murder occurred during “the performance

of [Captain] Myers’ official duties as a law enforcement officer.” J.A. 937.

In November 2006, Mahdi went to trial. Following three days of voir dire, the trial

court judge, Judge Clifton Newman, empaneled a jury. Soon thereafter, the Solicitor

announced “a security issue,” explaining that court security had discovered “a homemade

handcuff key” in Mahdi’s pocket during a brief recess. J.A. 1167. Mahdi “indicated . . . he

had made [the key] in the department of corrections. He had been transporting it in his

mouth and ha[d] attempted to use it at the jail, but he hadn’t had the opportunity to use it

[at the courthouse].” J.A. 1168. The Solicitor and Sheriff recommended—and Mahdi’s

counsel, Glen Walters, Sr., and Joshua Koger, Jr. (collectively “trial counsel”) agreed—to

put his legs in irons and chains for the duration of the trial.

After the trial court resolved the security issue and dismissed the jurors for the day,

the proceedings continued in chambers at Mahdi’s trial counsel’s request for “an ex parte

conversation . . . concerning this case and a possible resolution.” J.A. 1173–74. There, they

informed the court that Mahdi was considering “whether he should proceed forward with

trial or whether he should go in front of [the trial court] and plead guilty.” J.A. 1179. To

that end, Walters represented—in Mahdi’s presence—the following:

5 [He] discussed with [his] client options that are available with regards to this case. Mr. Mahdi is very intelligent and in conveying the options to him, of course, he’s aware of the fact that there are two phases to a trial, the guilt phase and also the sentencing phase, if it should reach that point.

One option that was discussed with Mr. Mahdi was with regards to the guilt phase. And, of course, there’s been a discussion with regards to the balancing of options or the lesser of two evils in that process.

What’s been conveyed to Mr. Mahdi is . . . that there are no guarantees with regards to either process. We have a jury that’s been empaneled and there are certain pluses and minuses with that jury. And, of course, Mr. Mahdi’s in a position where he’s saying, well, what about the judge. And, of course, Your Honor’s conveyed from the beginning that there is no policy by this Court that they will agree to a plea or agree to a certain sentence being rendered.

So I’ve explained to him that there are no guarantees wherever you go. And, of course, he’s pondering the issue of whether he should proceed forward with trial or whether he should go in front of Your Honor and plead guilty.

Of course, with the second phase with regards to the sentencing phase, he has been informed that the State will have to put up their case and information and, of course, he’ll be allowed to put up information. The question is whether he will do that in front of a jury or whether he will do that in front of a judge. And, again, there are no guarantees and there are pluses and minuses with regards to either option that he pursues.

J.A. 1178–79. Mahdi never interjected or contradicted counsel’s representations. The court

allowed Mahdi to consider his options overnight.

The next morning, the trial court resumed the ex parte conference with trial counsel

and Mahdi and explained that

the law provides that if the defendant pleads guilty, the sentencing proceeding will be conducted before the Judge. And that’s statutory. And that’s the same as in any criminal proceeding that if a person pleads guilty, the Judge does the sentencing.

....

And this is certainly not . . . being mentioned to suggest that that is advisable or not advisable. It’s simply the law. . . . And after more closely reviewing

6 the statute and also the case of State v. Downs, it is clear that sentencing is conducted by the Judge in any capital case where a defendant pleads guilty.

J.A. 1183–84. Mahdi indicated that he understood and agreed to plead guilty to all charges. 2

During the subsequent plea hearing, Mahdi’s counsel averred that he had

explained to [Mahdi] his constitutional rights, including the right to have a jury trial and the rights to have the jury determine whether his sentence would be life without the possibility of parole, if he were to be found guilty during the guilt phase of the trial, or the jury could return a verdict for death[.]

J.A. 1193. The court also detailed the mechanics of a jury trial and the rights Mahdi would

waive by pleading guilty. Specifically, the trial court emphasized that “in order for a jury

to find [him] guilty, all 12 jurors must unanimously agree” and “in order for a jury to

recommend a death sentence, . . . all 12 jurors must agree to recommend the death

sentence.” J.A. 1197. Mahdi indicated that he understood he had “the constitutional right

to have the jury decide [his] guilt or innocence and, also . . . the constitutional right to have

the jury determine [his] sentence.” J.A. 1197.

The trial court further explained that if it were to accept Mahdi’s guilty plea, “the

jury [would] have no role in [his] sentencing and the decision as to what sentence [he

would] receive [would] be left solely up to [the trial court].” J.A. 1198. The court then

engaged in the following dialogue with Mahdi:

2 At the trial court’s insistence, Mahdi met with Dr. Michael Cross to assess his competency before entering the plea. Dr. Cross testified that Mahdi “understood the risks and benefits of entering into this plea . . . and had a rational understanding of both, what the possible consequences for each”—i.e., trial and sentencing by a jury or guilty plea and sentencing by a judge—“[could have] be[en].” J.A. 1189. Mahdi also “had a good understanding of the process,” “had a factual knowledge of the legal system,” and knew “what he [was] doing.” J.A. 1190. 7 The Court: And do you voluntarily give up such a right [to be tried and sentenced by a jury]? Mahdi: Yes, sir, Your Honor. The Court: And do you understand what waiving that right means? Mahdi: I do, Your Honor. The Court: And what does it mean? Mahdi: It means I’ve given up all of my rights to a 12 party jury. And I just admitted guilt to the crimes I’m being charged with. .... The Court: And have you discussed with your lawyers thoroughly the constitutional safeguards that you have and the essential protections inherent in a jury trial? Mahdi: I was made fully aware of that by my attorneys.

J.A. 1198, 1200. Mahdi further indicated that he was “satisfied with the services of [his]

attorneys in this case,” that they had represented him effectively, and that they had “done

everything to the full extent of their power to assist . . . and defend [him].” J.A. 1201–02.

The court accepted Mahdi’s guilty plea and scheduled the sentencing hearing.

C. The Sentencing Hearing

Over the course of three days, the trial court “heard additional evidence in

extenuation, mitigation [and] aggravation of the punishment” as well as “the arguments of

counsel for or against the sentence to be imposed.” J.A. 1661. The State reiterated its

intention to seek the death penalty, while Mahdi’s counsel urged the trial court to sentence

him to life without the possibility of parole.

1. The State’s Evidence in Aggravation

The State sought to prove that Mahdi had “killed Captain Jimmy Myers . . . because

his heart and mind [were] full of hate and malice.” J.A. 1223. In doing so, the State called

8 twenty-eight witnesses to testify about: (1) the events leading up to Captain Myers’ murder;

(2) the murder; (3) Mahdi’s arrest; (4) his prior criminal history; (5) his behavior while in

custody; and (6) the impact Captain Myers’ death had on his friends and family. The

testimony most relevant to our present analysis is summarized below.

a. The Events Leading to Captain Myers’ Murder

Detective Michael Poe from the Winston-Salem, North Carolina Police Department,

testified about and introduced a surveillance tape showing Mahdi’s execution-style murder

of Boggs on July 15, 2004. Specifically, the tape showed Mahdi’s movements throughout

the store before “shoot[ing] [Boggs] in the face with the gun[,] . . . com[ing] up on to the

counter[,] . . . and fir[ing] a second shot at [him].” J.A. 1420. The trial court viewed the

tape over trial counsel’s objections.

Corey Pitts, Mahdi’s carjacking victim from Columbia, South Carolina, recounted

that at around 3:25 AM on the morning of July 18, 2004, he was driving home. As he was

sitting at a traffic light waiting to make a left turn, Mahdi approached his car, held a gun to

his face, and directed Pitts to “[g]et the fuck out and walk.” J.A. 1380.

b. Captain Myers’ Murder

Officer Stephen Curtis, a former deputy sheriff in Columbia, was among the first

responders to the scene of Captain Myers’ murder. He testified that he found Captain Myers

lying “face down in the workshop area.” J.A. 1392. “There were several matches on him,”

all of which were spent, “and there was a heavy odor of gasoline.” J.A. 1394. Officer Curtis

testified that investigators recovered nine shell casings from the scene which were later

9 matched to Captain Myers’ .22 caliber rifle discovered in Mahdi’s possession upon his

arrest.

Janice Ross, the forensic pathologist who performed Captain Myers’ autopsy,

testified that his clothing “was partially burned and smelled of diesel fuel.” J.A. 1544. “He

had some singeing of the hair in the back of the head and some thermal injury, burning of

the skin, on the back and around the sides of the abdomen.” J.A. 1545. Captain Myers also

had nine gunshot wounds: three in his head, four in his chest, one in his abdomen, and one

in his left hand. All but two would have been fatal or potentially fatal.

c. Mahdi’s Arrest

Sergeant Darren Frost from the Satellite Beach, Florida, Police Department testified

about the circumstances surrounding Mahdi’s arrest. According to Sergeant Frost, Mahdi

led officers on a brief chase while driving Captain Myers’s stolen truck. As Mahdi stepped

out of the vehicle and began to flee, Sergeant Frost saw him carrying Captain Myers’ stolen

rifle. Sergeant Frost testified that he drew his service weapon and directed Mahdi to drop

the gun. Mahdi turned towards him, with his “hand . . . close to the trigger.” J.A. 1232. As

Sergeant Frost prepared to fire, Mahdi dropped the weapon and ran.

Sergeant Frost then released his canine, which tracked Mahdi to a condominium

complex, where he was taken into custody. Sergeant Frost testified that he later “thanked

[Mahdi] for not using [the weapon on him] . . . and allowing [him] to go home to [his]

family that night,” stating that a round from the rifle “would have gone through [him], [his]

vest and [anyone] standing behind [him]].” J.A. 1243. According to Sergeant Frost, Mahdi

“looked at [him], [with] very cold eyes,” and said that the gun’s “selector was stuck on a

10 three shot and [he did not] think [he] could have . . . shot [Sergeant Frost], the other cop,

and . . . that fucking dog.” J.A. 1243.

d. Mahdi’s Criminal History

The State called several witnesses to present Mahdi’s extensive criminal history.

The testimony related to Mahdi’s juvenile convictions is summarized first before turning

to his adult conduct.

i. Juvenile Crimes and Convictions

Sheriff James Woodley from Brunswick County, Virginia, testified that he first met

Mahdi as a young teenager while investigating a report of stolen property. Mahdi, who was

fifteen at the time, was later convicted of breaking in and entering a house where he stole

“speakers, [a] tape player and also . . . a handgun, a .44 caliber magnum.” J.A. 1278.

After Mahdi failed to appear for sentencing in June 1998, an officer attempted to

execute an order to remand him to the Virginia Department of Juvenile Justice (“DJJ”). At

the same time, the officer tried to serve a show cause order on Mahdi’s father, Shareef.

When the officer arrived at Mahdi’s grandmother’s house—where they were living—

Shareef came out, read the orders, said, “We’re not going,” and proceeded to run back into

the house. J.A. 1278. Sheriff Woodley eventually arrived at the scene and spoke with

Shareef through a window. At that time, “the other officers [were] putting on their gear,

the bullet proof vests and getting weapons out of the vehicle.” J.A. 1279. Sheriff Woodley

heard Mahdi “holler to his father” that “[t]he mother fuckers got guns out there.” J.A. 1279.

Around nine hours after the standoff began, officers breached the house and arrested Mahdi

and Shareef. After he was in custody, Mahdi told the officers escorting him that he was

11 “going to kill a cop before [he] die[s].” J.A. 1280. Sheriff Woodley made clear in his

testimony that both Mahdi and his father were responsible for the standoff.

Officer Mike Koehler from the Richmond City Police Department testified about an

encounter he had with Mahdi in November 2000. Officer Koehler went to Mahdi’s “house

with another officer . . . to serve a summons on him for slashing his mother’s tires” along

with “an outstanding detention order.” J.A. 1307. Officer Koehler tried to take Mahdi into

custody, but Mahdi “got upset” and “started to pull away.” J.A. 1308. The officers wrestled

with him, and Mahdi reached for one of their guns. Eventually, after using pepper spray

and an ASP baton, the officers were able to subdue Mahdi. He later told Officer Koehler

that “he slashed his mother’s tires because she wouldn’t come to the door when he

knocked,” referring to her as “a crazy bitch” and saying “that he should have killed her.”

J.A. 1309–10. Mahdi also “begg[ed]” the officers to “shoot him.” J.A. 1310.

ii. Adult Crimes and Convictions

Turning to Mahdi’s adult conduct, the State called Moises Rivera, a maintenance

worker from Richmond, Virginia. Rivera said that on April 17, 2001, he discovered Mahdi

standing outside of a window to an apartment where he did not live. Mahdi immediately

“jumped [Rivera] and [they] started fighting.” J.A. 1323. During the exchange, Mahdi

stabbed Rivera once in the arm and five times in the back, puncturing one of his lungs.

After Mahdi ran away, Rivera “took three steps, collapsed, started coughing up blood and

. . . was rushed to [the hospital].” J.A. 1323.

Mahdi was convicted of malicious wounding and served thirty-nine months of

active incarceration. Though he was also sentenced to fifteen years of supervised probation,

12 Joseph Owen, Mahdi’s probation officer, testified that he only served two months before

beginning the crime spree that ended in Captain Myers’ murder.

Amanda Jean Weaver, Mahdi’s next-door neighbor from Brunswick County,

testified that he was anything but compliant during his time on probation between May and

July 2004. Mahdi told her that he “was doing a little drug pedaling or pushing or whatever,”

J.A. 1349—i.e., selling marijuana—and that he “was going to knock [someone] off,” J.A.

1363.

Weaver testified that she owned a .380 caliber semiautomatic pistol at that time. On

July 13, 2004—the day before Mahdi left Virginia for North Carolina—Weaver returned

home and discovered there had been a break-in, though nothing initially appeared to be

missing. The following week, upon seeing news coverage of Mahdi’s arrest, Weaver

recognized his picture and began to fear for her safety. She went to retrieve her gun and

discovered it was missing. Weaver later learned that Mahdi had stolen it and used it to kill

Boggs. 3

e. Mahdi’s Behavior in Custody

The State called several witnesses to testify about Mahdi’s failure to adapt to

incarceration. We begin by summarizing his time at the DJJ before turning to his terms of

incarceration with the Virginia and South Carolina Departments of Corrections (“VDOC”

and “SCDC,” respectively).

Weaver also testified that Mahdi believed “all white people were white devils,” 3

J.A. 1357, and that he “had a very strong dislike for police officers,” J.A. 1358. 13 i. The DJJ

The State called Linda Coulson, a former counselor at the DJJ’s Reception and

Diagnostic Center, who worked as “part of an assessment team to evaluate all [committed]

juveniles,” including Mahdi. J.A. 1285. Coulson testified that when she met Mahdi, he

“was tested to have a full scale IQ of 108,” which is considered “in the upper average

range.” J.A. 1288. During his intake interview, Mahdi “described himself as a quiet person

who [was] always up to something. He denied . . . [having] any strengths except for robbing

people.” J.A. 1288. Mahdi also advised Coulson “that he had been involved in selling crack

cocaine.” J.A. 1289. He relayed his history of escapes and attempts to elude law

enforcement. At bottom, Mahdi’s comments suggested to Coulson “that he had little

respect for the rights and property of others. He expressed no remorse” or “empathy for the

impact of his acts upon others.” J.A. 1290. In her final assessment, Coulson observed that

Mahdi was “the product of a dysfunctional single parent family characterized by a lack of

involvement with his mother, an absence of a positive adult role model, instability,

unemployment, and a lack of structure and supervision.” J.A. 1703.

Barbara Amos, who worked as a DJJ counselor, introduced portions of Mahdi’s

records from his time in custody there. These records reflected: Mahdi’s regular meetings

with counselors; consistent efforts by Shareef and Mahdi’s grandmother, Nancy Burwell

(“Nancy”), to visit and communicate with him and his counselors; as well as his various

disciplinary violations for conduct including, among other things, attempted assault on an

officer and the use of threatening language/behavior. At one point Mahdi made “suicidal

statements” to his counselor before stating that “he would become homicidal first. He gave

14 very graphic descriptions of how he would hurt others. He also graphically described how

[DJJ staff] would find [Mahdi’s victims and him after he committed suicide] (i.e.

‘hanging’).” J.A. 1978–79.

ii. VDOC

To introduce Mahdi’s VDOC records, the State called Cindy Collins, VDOC’s

criminal records manager. According to a summary of Mahdi’s disciplinary record, he had

a couple dozen violations, including setting fires, “[p]ossession of a sharpened instrument,”

and “[a]ssault on [a] non-inmate.” J.A. 1698. Mahdi was transferred twice during his time

in VDOC’s custody due to his “continued poor institutional adjustment and increase in

security level.” J.A. 1698.

iii. SCDC

The State called several SCDC officers to testify about Mahdi’s behavior while

awaiting trial. Officer Henry Johnson spoke about a disciplinary hearing where Mahdi was

charged with striking a correctional officer (who suffered a concussion). During the

hearing, Mahdi said that “the next chance he [got], he[] [was] going to . . . kill that mother

fucking officer. . . . The first chance he [got], he would finish him off.” J.A. 1465. Officer

Johnson also testified about a search he conducted in Mahdi’s cell where he discovered

“[s]ome rope and . . . some pieces of metal.” J.A. 1466. Officer Terrance Prioleau testified

about a separate search where officers discovered a piece of metal Mahdi had hidden in a

hole in the wall.

Officer Janet Driggers testified about a grievance form she received from Mahdi,

where he wrote,

15 I cannot be diplomatic with you people, so my last action would be to kill you. Why not? You’re no good to anybody. I could easily get someone to murder you. What is wrong with you, bitch? I bet you’ll respond quick to this, won’t you? You people think this shit is a game.

J.A. 1482. Officer Driggers testified that “[i]n [her] capacity as a grievance coordinator,”

this was the only time she “was ever threatened to be killed.” J.A. 1489.

SCDC disciplinary officer Annie Sellers testified that Mahdi made additional threats

during the subsequent disciplinary hearing. Even “[a]s he was being removed from the area

and while he was out in the hallway, he was still making threats towards [Officer

Driggers].” J.A. 1497.

Eventually, SCDC officials determined that Mahdi should be moved to more

restrictive custody in the Kirkland Maximum Security Unit (“Kirkland”). Captain Gary

Lane testified that Kirkland is “a 50 bed facility” reserved for “the worst of the worst

inmates in the State of South Carolina.” J.A. 1500. Within the facility, there are six cells in

what is called the “High D Wing,” where “the lights are kept on 24 hours a day, seven days

a week” and inmates are monitored by video cameras “24 hours a day.” J.A. 1501. That is

where the SCDC housed Mahdi, meaning “he [was] one of the six most secure inmates in

the whole department of corrections” at the time of his sentencing. J.A. 1502.

Captain Lane testified about separate incidents at Kirkland when they discovered

various contraband in Mahdi’s cell including: a “hammer-like weapon,” J.A. 1502; “two

pieces of a metal, one sharpened to a point,” J.A. 1506; and pieces of “knotted rope,” J.A.

1506.

f. Victim Impact Statements

16 Finally, the State called several witnesses, including Captain Myers’ father, wife,

and daughter, as well as his colleagues and friends on the police force, who testified about

Captain Myers’ character and the impact his death had on them.

2. Mahdi’s Evidence in Mitigation

Mahdi’s counsel began their mitigation presentation by asking the trial court for

mercy, arguing that he “took full responsibility . . . for what he did” by pleading guilty,

“that at the time of this particular crime, . . . he was 21 years of age and very young,” and

that he had a troubled childhood. J.A. 1224. No laypersons testified on Mahdi’s behalf. Nor

did he take the stand. Instead, trial counsel called two expert witnesses: James Aiken and

Marjorie Hammock.

a. James Aiken: Prison Adaptability

Aiken, a former warden and prison adaptability expert, testified that the SCDC was

equipped to handle Mahdi and that he would likely present no future threat while

incarcerated. Though Aiken considered Mahdi’s disciplinary infractions “serious,” he

testified that “when you compare [Mahdi’s] contraband issues and the behavior issues . . .

to the type of population that [the SCDC has] to manage, it’s fairly reduced.” J.A. 1565.

The conduct was “[n]ormal and routine” and “a reflection of an immature boy in a big

prison system.” J.A. 1567. According to Aiken, Mahdi was “not demonstrating . . .

predator[y] behaviors,” J.A. 1566, i.e., he did not have “total control to call a signal and

have an officer killed” or “caus[e] a riot between two rival gangs,” J.A. 1581. Mahdi also

was not “a person with connections with international terrorists that [could] call hits on

17 officials within the prison systems.” J.A. 1581. He was, by Aiken’s account, simply

“immature and [had] done some very violent, stupid things.” J.A. 1582.

b. Marjorie Hammock: Biopsychosocial Assessment

Mahdi’s second witness was Hammock, a licensed clinical social worker and

assistant professor at Benedict College in Columbia, South Carolina, who had an extensive

background in capital litigation. Before Mahdi’s sentencing, she had participated in twenty-

five death penalty cases and had testified in fourteen of them.

Hammock’s testimony centered on her biopsychosocial assessment 4 of Mahdi,

which she prepared by “conducting interviews with family members, reviewing records,

interviewing the defendant himself, [and] taking information from anyone who would give

information about him, his life and his development.” J.A. 1595. Specifically, Hammock

interviewed “someone who was a part of the community,” but “didn’t know much about

[Mahdi],” J.A. 1595, as well as his paternal grandmother Nancy, his paternal uncles Nathan

Burwell (“Nathan”) and Carson Burwell (“Carson”), and Lawanda Burwell (“Lawanda”),

4 A biopsychosocial assessment considers all of the social, the biological and the clinical factors, [and] the environmental factors about the defendant and bring[s] them together to really form a family or a social history. It examines at every aspect of the life to present a picture, particularly in this instance to give some understanding as to why we are here and that resulted in his being in this situation. J.A. 1594–95. 18 Carson’s wife. She also spoke with Shareef; Mahdi’s “mother, [Vera 5] Mahdi; [Corliss

Artis (“Corliss”)], his maternal aunt; and Sophia Gee, . . . [an]other maternal aunt.” J.A.

1596. Further, Hammock “reviewed a synopsis of [Mahdi’s] school records” and a mental

health report from when he was a juvenile. J.A. 1596. 6

Hammock described Mahdi’s childhood as “rather chaotic,” highlighting “the

nature of the transience [and] the changes in his living circumstances.” J.A. 1597. She

emphasized his parents’ “inability . . . to parent appropriately and correctly,” observing

that Mahdi was “abandoned by his mother at quite an early age and that his father . . . had

his own experiences which limited his ability to parent effectively.” J.A. 1597.

Hammock testified at length about Shareef, whom she characterized as having “a

lot of difficulties.” J.A. 1598–99. She conveyed Shareef’s

experiences in desegregating the local school . . . and how traumatic that was for him. He was constantly in conflict with those around him. . . . [H]e considered himself unwanted.

And so [Shareef’s] own childhood was difficult and he grew up in a situation feeling alienated from anybody else around him. He didn’t finish school. He was the only one in his sibling group that didn’t and that was a source of consternation between he and his family members.

5 Shareef changed his wife’s name from “Vera” to “Tilea” upon their marriage. Testimony and other evidence from the record use both names interchangeably to refer to Mahdi’s mother. For the sake of consistency, this opinion refers to her as “Vera.” Hammock described Vera as “very, very withdrawn” and indicated that she “did not want to participate in the interview at all, somewhat—really almost frightened about being involved with the family again.” J.A. 1605–06. 6 As discussed in greater detail below, Hammock did not work alone in compiling this information. Rather, along with trial counsel, she worked in conjunction with a private investigator, a mitigation investigator, a psychiatrist, and a forensic psychologist in their efforts to present mitigation evidence on Mahdi’s behalf. 19 This looked like an intact family that he grew up in, but they had their problems. There was alcoholism in the family and there was some neglect on the part of [Shareef’s father]. And, again, this also culminates in [Mahdi’s] father deciding to become a Muslim, change his name, which also brought some grief to the family.

So [Shareef] . . . goes to the Marines, he gets out. . . . [H]e says he has an honorable discharge, but it was under some circumstances that really kind of compromised the nature of that discharge. . . . He has odd jobs, but he’s not really able to function well. There is some description of continuing depression and a number of incidents with law enforcement locally.

At the age of 27, he meets and participates in an arranged marriage with [Vera,] a 16-year-old woman from Richmond, whose mother helped to arrange the wedding. [Vera was] not supportive of this, but she has no choice but to join the marriage and that marriage was conflict from the very, very beginning.

[Mahdi’s] older brother [Saleem] is born and then [Mahdi] is born into this family, which is very unstable and chaotic. [Mahdi’s] father is not able to take care of his family. They move several times, ultimately ending back in Lawrenceville [Virginia] living with [Shareef’s] mother and not able to, again, sustain himself.

There is a great deal of conflict described between . . . [Vera] and [Shareef]. And this the children witnessed. Ultimately, [Mahdi’s] mother leaves the family and she describes her trying to get away from the abuse.

J.A. 1599–1600. Hammock explained that Shareef attempted to care for the boys with his

family’s help, but that “the relationship between [Mahdi’s] father and his grandmother and

the other members of the family” was “constantly confrontational.” J.A. 1601. During this

time, Vera was “forced to return . . . ostensibly to see the boys,” but that resulted in “some

physical conflict. And she [left] again not to see her son for a number of years.” J.A. 1601.

In 1991, when Mahdi was eight years old, he went to live with his paternal uncle

and aunt-in-law, Carson and Lawanda, in Baltimore. They discovered he “simply could not

20 read even though he appeared to have other kinds of skills.” J.A. 1602. Hammock

summarized Mahdi’s relevant school history:

[H]e spends the second and the third grade in Scotts Branch Elementary School in Baltimore, Maryland. And he has uneven skills. He’s placed in an average math program, but . . . below average reading programs. And the narrative indicates that he needs improvement in a number of areas, including standards for behavior, showing respect for authority. And his reading and writing skills remained below grade level.

That continues in the third grade and . . . it’s especially noted again the [unevenness] of his performance because he is considered by his teacher, in that year, that he was outstanding in science; however, the reading and the vocabulary and the spelling remain below average. It’s also noted several places where he clearly has poor self-esteem and often has difficulty with relationships with others.

Ultimately, he leaves school [in Baltimore] and is placed in . . . a mental health facility [the “Carter Center”]. And after he is released . . . , he stays only with his aunt and uncle for a short period of time[.]

J.A. 1604–05. By the time Mahdi returned to Brunswick County, his father was “known to

be at odds with people in the community, with his own family and with law enforcement.”

J.A. 1610. 7 But Mahdi “care[d] about his father, wanted more than anything else an intact

family and an ongoing relationship, but that just didn’t happen.” J.A. 1610. That said,

Mahdi never received “the consistent help in growing up and developing good skills and

developing a sense of values. Even though folks tried, it just wasn’t consistent enough for

him to learn how to do those kinds of things.” J.A. 1610.

Hammock concluded that Mahdi had “been traumatized throughout his early life,”

which “had an impact on his inability to make good choices, to have a good sense of himself

7 Hammock testified that Mahdi “live[d] with [his mother] for a very short period of time, . . . but it was not a good reunion. They did not get along at all.” J.A. 1607. 21 and others and to behave according to societal norms.” J.A. 1611. In short, she told the trial

court, “[h]e never had really a chance to develop appropriately.” J.A. 1611–12.

During Hammock’s testimony, trial counsel submitted a “Time Line” of the major

events in Mahdi’s life, which included the following entries among others:

• 1955[8]: Sareef [sic] enters a desegregated school, 5th grade. The experience was destructive. He was ridiculed, isolated, challenged physically by classmates, ignored or received negative feedback from some instructors. Felt traumatize[d] by the experience. Only child in the family that does not finish high school. Sareef [sic] described as disturbed as a young child, threw tantrums, Mother not emotionally available[.]

....

• 1975: Sareef [sic] converts to Islam. Sareef [sic] involved in a series of misdemeanors locally all said to be racially motivated.

• 1980–81: Sareef [sic] age 27 and Vera (Tilea) age 16 marry. The marriage is arranged by Vera’s mother, who is raising 16 children. Sareef [sic] changes Vera’s name to Tilea.

....

• March 20, 1983: Mikal Mahdi born.

....

• 1986: Vera (Tilea) leaves Sareef [sic] and the boys. Sareef [sic] lives in the Burwell home with the boys. Sareef [sic] took [the] boys to Richmond to live but could not keep a job, could not supervise or provide care for the boys. Sareef [sic] moves back to Lawrenceville. Sareef [sic] can not [sic] take care of himself or the boys.

• 1988: Vera (Tilea) is taken to Lawrenceville from Richmond by Sareef [sic] who abuses her. Nathan rescues Vera. Mikal and Saleem witness more abuse and violence.

....

8 This date is obviously incorrect, given that the Time Line lists Shareef as being born in 1954. 22 • October 1991: Saleem sent to Texas to live with aunt. Mikal went to Baltimore to live with Uncle Carson and Aunt Lawanda Green Burwell. Carson described Mikal as very smart but unable to read at age 8.

• August 23, 1992: Mikal involuntarily admission in a psychiatric facility after suicide threat/gesture and Mikal hospitalized Admission DX Axis I, Major Depression with suicidal ideation, adjustment disorder, R/O Adjustment Disorder, Axis II Developmental Reading Disorder, Axis III Hx of right arm and right leg fractures. Saleem comes back from Texas after disrupting his aunt[’s] home.

• October 19, 1992: Mikal Discharged from Walter P. Carter Mental Health. Discharge DX Axis I Major Depression, Single episode. Mikal also becomes more disruptive in his uncle’s home in order to force his return to Lawrenceville to join his father and brother. He has become even more defiant after he learns that his brother has joined his father. The three reunite and live on Burwell property with the boys. This was an isolated place in the country and they often had no food, heat or money.

• December 1997: Mikal sent to reception and diagnostic center— Culpepper in a juvenile facility for two counts of b & e and two counts of grand larceny. Mikal released from facility and Sareef [sic] sent Mikal to Richmond to live with his mother[.]

• December 1997: Mikal committed to juvenile facility

• April 2001: Mikal transferred VA Dept of Corrections

J.A. 6322–23.

D. The Trial Court’s Sentence and Mahdi’s Direct Appeal

After hearing closing arguments and taking a day to deliberate, the trial court

sentenced Mahdi on December 8, 2006. 9 The court began by summarizing the underlying

facts before finding that the State had proven two of the alleged statutory aggravating

9 During the sentencing hearing, the trial court reaffirmed that Mahdi “understood that as a consequence of his guilty plea to murder while in the commission of burglary and grand larceny, that the Court would conduct a separate sentencing proceeding and determine whether he should be sentenced to life imprisonment without the possibility of parole or death.” J.A. 1661. Neither Mahdi nor his trial counsel objected to this statement. 23 factors beyond a reasonable doubt—that Mahdi had killed Captain Myers “while in the

commission of burglary” and “while in the commission of larceny with use of a deadly

weapon,” J.A. 935 (citing

)—meaning Mahdi was eligible for

the death penalty. 10

The trial court then summarized the State’s evidence in aggravation, which it

described as “compelling” and “established by clear and convincing evidence the

defendant’s bad character and propensities.” J.A. 1665, 1668. “These incidents covered a

period of over eight years showing [Mahdi] committing a series of crimes, including

housebreaking, stealing guns, robbing people, selling crack cocaine, vandalism and

malicious wounding.” J.A. 1665–66. And “[d]uring each of these periods of incarceration,

Mr. Mahdi’s behavior was maladaptive, assaultive and demonstrated an utter disrespect for

authority, including threatening the life of a detention officer.” J.A. 1667. Moreover,

“[w]hile in safekeeping in the South Carolina Department of Corrections awaiting this trial,

Mr. Mahdi made numerous threats to kill various department employees.” J.A. 1668.

The trial court then considered and rejected each of Mahdi’s arguments in mitigation

before announcing its decision:

Defense counsel argues that the defendant’s youth should be considered by the Court in determining the appropriate sentence to be imposed.

Mikal Deen Mahdi was 21 years old at the time of the murder of Captain Myers. When last tested at age 14, the defendant’s IQ was 108, slightly above

10 The trial court expressly found the State had not carried its burden of proof on the other statutory aggravating grounds and thus had not proved beyond a reasonable doubt that Mahdi killed Captain Myers “while in the commission of a robbery while armed with a deadly weapon” or “during or because of the performance of [Captain Myers’] official duties” as a law enforcement officer. J.A. 1664–65. 24 average. While this is a young age for such a serious crime, Mikal Deen Mahdi began his criminal career at an early age having entered the Virginia Department of Juvenile Justice at 14. He is experienced in the world of crime. By the time he committed these crimes, Mr. Mahdi was well aware of the severity of his crimes and the possible consequences.

I have considered the defendant’s young age, but I have not afforded it great weight in reaching my decision. There is nothing about Mr. Mahdi’s age or mentality that in any way mitigates, excuses or lessens his culpability and neither should it be given any significant weight in the Court’s ultimate decision as to his sentence.

I have also given consideration to what the defense contends to be the defendant’s turbulent and transient childhood and upbringing. In reviewing the testimony of Marjorie Hammock, the defense’s clinical social worker expert, there’s no reference to physical or sexual abuse suffered by the defendant. In addition, records of the Virginia Department of Juvenile Justice indicates [sic] that the defendant’s father, brother and grandmother continually expressed great care and concern for his well-being.

While Mr. Mahdi’s family life may have been less than ideal, particularly without the presence of a loving and caring mother, I do not believe that his difficult childhood and family life contributed in any significant way to his senseless criminal activities; therefore, while I have considered this . . . nonstatutory mitigating circumstance, I do not believe that it should be given any significant weight in the Court’s ultimate decision as to the sentence to be imposed.

The defense presented testimony from Mr. James Akin, a prison adaptability expert. Mr. Akin, a highly credential[ed] expert, testified concerning Mr. Mahdi’s potential adaptability to prison life.

I have considered and reviewed Mr. Mahdi’s records regarding his prior behavior in various correctional institutions. He has consistently been disruptive and uncooperative and has threatened to kill prison employees. Officers have repeatedly found homemade weapons, ropes and other contraband in the defendant’s cell.

During this trial, the defendant brought a homemade handcuff key into the courthouse with the intent of using it, if possible, to escape, thus, posing a serious threat to courtroom security. The Sheriff of Calhoun County testified that Mr. Mahdi stated to him that he made the key while being housed and monitored at the State’s highest security level facility.

25 While Mr. Akin gave impressive testimony, based on Mr. Mahdi’s behavior in correctional institutions throughout his adolescence and adult years, I do not believe that he is sufficiently adaptable to prison life for this nonmitigating [sic] circumstance to be given any significant weight in the Court’s ultimate decision as to the sentence to be imposed.

The defense further . . . argues as a nonstatutory mitigation circumstance that the Court should consider the defendant’s guilty plea in determining the appropriate sentence to be imposed.

The defendant’s guilty plea occurred during the fourth day of his trial following jury selection, but prior to the jury being sworn. This was one day following his attempted escape through the use of a homemade key. In addition, Mr. Mahdi has failed to demonstrate any remorse for his actions at any point in time known to this Court. Therefore, I conclude that no significant weight should be given to this nonstatutory mitigating circumstance and the Court’s ultimate decision as to the sentence to be imposed.

....

My challenge and my commitment throughout my judicial career has been to temper justice with mercy and to seek to find the humanity in every defendant that I sentence. That sense of humanity seems not to exist in Mikal Deen Mahdi.

....

Today, the defendant also seeks mercy, the same mercy that perhaps Captain James E. Myers sought for an instant before Mikal Deen Mahdi fired nine bullets into Captain Myers’ body from one of Captain Myers’ prized weapons before setting his body on fire with matches and diesel fuel belonging to Captain Myers. In extinguishing the life, hope and dreams of Captain Myers in such a wicked, depraved and consciousless [sic] manner, the defendant Mikal Deen Mahdi, also extinguished any justifiable claim to receive the mercy he seeks from this Court.

J.A. 1669–74.

The trial court sentenced Mahdi to death for Captain Myers’ murder, fifteen years

of incarceration for second-degree burglary, and ten years for grand larceny, to be served

consecutively. Mahdi appealed to the Supreme Court of South Carolina, raising a single

26 issue not relevant here. That court affirmed. Mahdi,

. He did not appeal

to the U.S. Supreme Court.

E. The First State-Court PCR Proceedings

After exhausting his direct appeals, Mahdi filed an initial pro se PCR application in

South Carolina state court. The Supreme Court of South Carolina assigned the case to a

judge (the “PCR court”), who subsequently appointed statutorily qualified counsel (“PCR

counsel”). PCR counsel filed several amended PCR applications, raising the following

relevant IAC claims:

• The “Jury Sentencing Claim”: Trial counsel failed to adequately advise Mahdi of the advantages of jury sentencing, which resulted in him pleading guilty and purporting to waive his right to jury sentencing;

• The “Mitigation Evidence Claim”: Trial counsel failed to adequately investigate, develop, and present mitigation evidence concerning Mahdi’s family, social, institutional, and mental health history; and

• The “Judicial Sentencing Claim”: Trial counsel failed to assert that

11 is unconstitutional because it automatically precludes jury sentencing following a guilty plea in violation of the Sixth, Eighth, and Fourteenth Amendments as addressed in Ring v. Arizona,

(2002). Though PCR counsel acknowledged that South Carolina state courts had rejected this argument, see State v. Downs,

(S.C. 2004), they nevertheless maintained it had not been reviewed by federal courts and that trial counsel were thus ineffective in failing to adequately preserve the record for subsequent litigation.

11 South Carolina Code § 16-3-20(B) provides: 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. 27 The PCR court scheduled an evidentiary hearing during which it “had the opportunity to

view and hear the witnesses who testified in person, and make a credibility assessment with

regard to each witness.” J.A. 7524.

1. Mahdi’s PCR Evidence

PCR counsel’s presentation focused on the Mitigation Evidence claim. Specifically,

they argued that trial counsel “presented . . . short[,] brief[, and] cursory testimony from

Ms. Hammock,” J.A. 2212, which conveyed “the basics of the story . . . with a very broad

brush,” but omitted crucial details. J.A. 2213–14. PCR counsel promised “to show the

humanity” in Mahdi that the trial court could not find. J.A. 2213. In doing so, they called

members of Mahdi’s family, non-family lay witnesses, and mental health experts.

a. Mahdi’s Family Members

Four members of Mahdi’s extended family—one uncle and three aunts—testified

on his behalf. None of his immediate family members—Shareef, Vera, or Saleem—were

present at the evidentiary hearing or submitted affidavits to the PCR court. We first

summarize the testimony from Carson and Lawanda before turning to Mahdi’s maternal

aunts, Rose Gupton (“Rose”) and Sophia Gee (“Sophia”).

i. Carson and Lawanda

Carson began by recounting the role that race played in Mahdi’s paternal family,

the Burwells. He described Shareef’s enrollment in a predominantly White school in

Lawrenceville as “a fairly terrible experience,” which resulted in him becoming angrier, “a

lot more uncontrollable, a lot more despondent,” and hostile towards White people. J.A.

28 2229–30. Carson also remembered his mother, Nancy, as someone obsessed with race who

was constantly trying to “pass[]” as White. 12 J.A. 2232.

According to Carson, Shareef was the only one of his siblings who did not graduate

from high school or attend college. Instead, he enlisted in the U.S. Marines. Carson testified

that “something happened to him [during his service]. He had a discharge and . . . [i]t was

not good. . . . [I]t made him a more radical person, [an] angry person[.]” J.A. 2235.

Turning to Mahdi’s childhood, Carson testified that Vera “wasn’t cruel, but she just

wasn’t doting.” J.A. 2240. In contrast, Shareef was “very affectionate, very concerned,

very much concerned. . . . [H]e was always doting on his sons and always very, very

affectionate with them.” J.A. 2240. “He certainly tried to . . . show favoritism to [Mahdi]

as much as he could[.]” J.A. 2240. However, according to Carson, Shareef was incapable

of adequately raising his children: “He never had a job to speak of—consistently

[un]employed . . . They didn’t consistently go to school and he lived in public housing and

section eight or whatever. No, he couldn’t take care of them.” J.A. 2241. Lawanda agreed,

suggesting that Shareef’s constant moving was due, in part, to his efforts to “stay under the

12 Lawanda described Nancy as someone who “definitely wanted to be more than she thought people thought she was.” J.A. 2449. For instance, [i]f she went to downtown and interacted with white people, they knew she was a light red-headed black woman, but when she left Lawrenceville then it depended upon what people thought. If they didn’t think she was black, she could be white, and if they did, well, she’d be black. J.A. 2450. Lawanda attributed “the family lightness and red hair” to Nancy’s grandfather, who “was the product of a relationship between a slave and an [I]rish woman.” J.A. 2496. The “woman was sent to Boston with child and the father of the child disappeared, was never seen again.” J.A. 2496. 29 radar with the . . . educational system” by not drawing too much attention due to the boys’

mounting absences. J.A. 2464.

After one visit where Carson found Mahdi and his brother skipping school, “playing

out in the yard and being destructive, tearing up toys that were left out,” while Shareef was

“not really noticing what they were doing . . . not saying anything,” J.A. 2243–44, he

decided to take Mahdi to live with him and Lawanda in Baltimore.

Carson described that experience as a very difficult period. At one point, he had to

attend a meeting with Mahdi’s principal because Mahdi made several suicidal statements

such as, “Well, why doesn’t someone just shoot me?” and “If I had a gun I would just shoot

myself.” J.A. 2248. Carson testified that Mahdi made similar statements at home as well.

Despite these threats, Carson concluded Mahdi “didn’t really want to kill himself. . . . He

was just playing games.” J.A. 2265. Lawanda agreed, testifying that Mahdi would often

say, “Just shoot me,” J.A. 2467, but she “never thought that he was serious about it,” J.A.

2468.

To that end, Carson recounted an incident when he came home and found his wife

“giving [Mahdi] a whipping,” which he “monitor[ed] to make sure she didn’t go

overboard.” J.A. 2248. Lawanda testified that she took Mahdi’s belt and spanked him with

it, though her “purpose was not to really hurt him but to let him know that [she] was in

charge.” J.A. 2467. Afterwards, Mahdi “put soot on his face, on parts of his body to make

it look like it was bruised and some ketchup on his face and called 9-1-1 and the police

came to the door.” J.A. 2248. The officers took Mahdi to the hospital, where he told them,

“You need to just give me your gun so I can shoot myself,” and they “took him straight to”

30 the Carter Center. J.A. 2250. “It took [Carson and Lawanda] two months to get him out of

there[.]” J.A. 2250. While Mahdi was committed, Lawanda testified that his doctors told

her that Mahdi was being disruptive, “throwing chairs” and “kicking doors,” and that they

had to put him in isolation. J.A. 2493.

Upon his release, the Carter Center recommended Mahdi receive follow-up care

and counseling. Carson testified that he “sent [Mahdi] to a psychiatrist every Monday” for

“[t]hree or four months.” J.A. 2252. But, according to Lawanda, Mahdi refused to talk

during these sessions.

Carson testified that he did not remember being interviewed by anyone from

Mahdi’s South Carolina defense team but that he “most definitely” would have testified on

Mahdi’s “behalf and [told] the family story.” J.A. 2256. Carson further stated that he would

have asked for mercy because Mahdi “didn’t have a chance in hell” because of “the

parenting he had, the moving around, the mother abandoning him, all kinds of poverty,

hunger at times, clothing—lack of. You name it.” J.A. 2257.

Lawanda remembered speaking with Mahdi’s South Carolina defense team after his

arrest but said she was not asked to testify. At the PCR evidentiary hearing, when asked in

retrospect if she would have been willing to speak on Mahdi’s behalf, she responded that

she was “not sure.” J.A. 2477.

ii. Mahdi’s Maternal Aunts

Rose testified about Mahdi as a child, describing him as “very angry. He was angry.

. . . [He threw] cereal bowls across the kitchen floor. He hit [his mother] a couple of times.”

31 J.A. 2288. Sophia described Vera as “really protective,” even “over-protective,” of Mahdi

and his brother. J.A. 2296–97. “She wouldn’t let them play.” J.A. 2297.

That said, according to Rose and Sophia, the only reason Vera left her sons under

Shareef’s care when she fled the relationship was “[b]ecause he threatened to kill her if she

took them and he meant it, too.” J.A. 2288, 2298. After Vera left, Shareef “wouldn’t let her

see [the boys] or speak to them, but . . . she used to send them toys and clothes.” J.A. 2298.

Sophia testified that Shareef “was abusive; that he used to beat [Vera] and he was

controlling.” J.A. 2298. She recounted a time when Vera came to her house “covered in

bruises from head to toe and she said Shareef beat her up. She was trying to see the children

and he beat her up.” J.A. 2299. Years later, when Mahdi was around sixteen or seventeen,

Sophia tried to reunite him with his mother. She testified that, at the time, neither Mahdi

nor his brother knew she was alive. “[A]t first [the reunion went well] but then after a while

. . . it went bad.” J.A. 2301. Mahdi “slashed her tires” because Vera “wouldn’t let him use

the car.” J.A. 2306–07.

Rose said she did not speak with anyone from Mahdi’s South Carolina defense team

before his trial. Indeed, she claims to have not even been aware that he had been arrested

for capital murder until her sister told her he had already been convicted. In contrast, Sophia

testified that she, along with her sister Corliss spoke with the South Carolina defense team

32 for around an hour. 13 Both Rose and Sophia stated they would have testified on Mahdi’s

behalf during his sentencing hearing had they been asked. 14

b. Non-Family Lay Witnesses

PCR counsel also called several lay witnesses from Mahdi’s childhood. Myra

Harris, Mahdi’s third-grade teacher from Baltimore, testified that he was prone to outbursts

and came to her class with significant gaps in his education. According to Harris,

“sometimes the anger would get to a level where . . . he would have to go into a time out.”

J.A. 2325. Other times he refused to do work. And on one occasion, Mahdi ran “out of the

classroom,” out of the building, “and ha[d] to be retrieved.” J.A. 2326. Nevertheless, his

behavior improved during his time in her class after he and Harris developed a relationship.

Carol Wilson, Mahdi’s fifth-grade teacher from Brunswick County, presented a

similar narrative. She testified that Mahdi was referred to the child study team as a

candidate for special education based on his behavioral deficiencies. Wilson observed that

Mahdi’s marks on the Burks Rating Scale—which tests behavior—demonstrated “very

significant and excessive self-blame, poor impulse control, and excessive resistance. He

ha[d] also exhibited periods of extreme sadness at times.” J.A. 2335. Wilson concluded

Mahdi was “unable to cope with these feelings,” making “him unable to function and

13 Rose testified that she spoke with Sophia and Corliss “every day” and did not believe either was aware of Mahdi’s trial. J.A. 2291. 14 PCR counsel also submitted an affidavit from Mahdi’s paternal aunt, Sandra Wynn Burwell (“Sandra”)—Nathan’s ex-wife—much of which was devoted to the Burwell men’s ineptitude in supporting their families. Sandra also addressed Shareef’s volatile relationship with Vera, including his attempt “to kill [her] with their sons watching.” J.A. 2931. 33 effectively learn in school.” J.A. 2335–36. That said, the child study team, which she

chaired, determined he “had a full scale IQ of 118,” and Wilson considered him “an

intelligent kid.” J.A. 2337.

Wilson’s team later had a meeting to discuss Mahdi’s eligibility for special

education, which Shareef attended. According to Wilson, when the team’s psychologist

presented his findings, Shareef “became very angry . . . and he got up and he cursed us and

he left,” saying “that he didn’t want any white man writing negative reports about his son.”

J.A. 2333. Ultimately, the team determined Mahdi was “eligible for the emotionally

disabled program with recommended assistance in the area of reading.” J.A. 2341. They

also recommended that he receive counseling.

Eventually, Shareef allowed Mahdi to join Wilson’s class, albeit briefly. She

described Mahdi as “depressed and . . . very sad,” but “never disrespectful.” J.A. 2344. But

“it came [to] a point of time that [she] had to sit him next to [her] in order for him to get

his work done.” J.A. 2344. Mahdi liked to draw, but Wilson testified “he would use ink

and draw pictures of people hanging, the nooses and things like that.” J.A. 2345. Mahdi

did not finish the school year due to Shareef’s decision to homeschool the boys. After that,

Wilson said Mahdi “got lost in the cracks.” J.A. 2348. Neither Harris nor Wilson spoke

with Mahdi’s South Carolina defense team, but both stated they would have testified on

his behalf at sentencing. Both teachers conceded that they had no knowledge about Mahdi’s

home life.

George Smith also testified at the PCR hearing. Smith was well-known and

respected in the local Black community for having successfully sued Brunswick County

34 under the Voting Rights Act. According to Smith, Shareef admired him “for taking on these

white people and winning because . . . he didn’t particularly like white people. . . . [H]e

just hated them with a passion.” J.A. 2371–72. Smith recalled an incident when Shareef

jumped into the local White swimming pool and refused to leave. According to Smith,

Shareef “was in the pool swimming around and cursing, using extremely vile language . . .

and hollering as loud as he possibly could as to try to inflame these policemen that were

standing around.” J.A. 2374–75. The police called Smith and asked him to help resolve the

issue. Eventually, Shareef agreed to leave the pool so long as Smith would accompany him

to the jail. Smith testified that when they arrived at the cell, Shareef “just went wild. He

took the furniture and started throwing the chairs against the wall . . . . [I]t was just as

violent as anything [Smith] ha[d] ever seen in [his] life.” J.A. 2377.

Smith also testified about Mahdi’s court hearing following the standoff at his

grandmother’s house. Smith recalled that the judge described Mahdi as a “smart” and

“nice-looking kid” and recognized that “[h]is problem [was] his father.” J.A. 2379. Had

anyone from Mahdi’s South Carolina defense team contacted him, Smith said he would

have testified and “probably would have” asked the trial court to show mercy. J.A. 2378. 15

15 Sharon Pond, a mental health therapist from Lawrenceville also testified on Mahdi’s behalf, though she had never met him before the evidentiary hearing. She testified about Shareef’s treatment for various mental illnesses, but acknowledged that when Shareef was referred to the state hospital after the pool incident, the doctors there did not find any indication of major mental illness. Pond was not contacted by Mahdi’s South Carolina defense team. In addition to the witnesses who testified at the hearing, PCR counsel introduced affidavits from Dora Wynn, Douglas Pond, and Sheriff Woodley. Wynn, Mahdi’s kindergarten teacher and elementary school principal, stated that he “often simply refused (Continued) 35 c. Mental Health Experts

PCR counsel called mental health experts to testify as well, including: Dr. Nicholas

Cooper-Lewter, a licensed social worker; Dr. Craig Haney, a social psychologist; Dr.

DeRosset Myers, Jr., a clinical psychologist; and Dr. Donna Schwartz-Watts, a psychiatrist.

Collectively, they testified about the impact various events in Mahdi’s life had on his

mental health and diagnoses.

Dr. Cooper-Lewter spoke about incidents where Mahdi witnessed Shareef beating

Vera and Nancy, which “sen[t] a very, very unhealthy message about how you solve life’s

problem and how you [relate to] others.” J.A. 2403. To that end, Shareef told Dr. Cooper-

Lewter that he “wanted [Mahdi] to be [his] warrior. [Shareef] said [Mahdi] was fearless.

He would do things that [Shareef] was afraid to do.” J.A. 2429. “They practiced shooting

and using knives and moving about in the countryside as if there was an enemy and how

to do his work, refused to eat, and would just walk away from school.” J.A. 2922. But she “never could figure out why he was so angry” because she “was not aware of other circumstances in his home and life” beyond his mother’s absence. J.A. 2922. Douglas Pond, Lawrenceville’s Mayor and former Chief of Police, relayed the incident when Shareef jumped in the Whites-only pool and refused to leave. Sharon Pond testified that Shareef was involuntarily committed after this incident based on an emergency worker’s conclusion that he suffered from a mental illness and was imminently dangerous to himself or others. Sheriff Woodley recalled an incident when Nancy “showed [him] bruises on her legs and thighs and told [him] that [Shareef] had beaten her with the buckle end of a belt while his sons, Saleem and Mikal, [were] watching.” J.A. 2925. Ultimately, though, she refused to testify or press charges. Sheriff Woodley also recounted an incident when Shareef “kidnaped [sic] and beat[] his wife after she left him,” which the boys witnessed. J.A. 2926. In another incident, Shareef “threw a brick at his sister Kathy through the door of the house” and on another occasion “damaged his sister Loretta’s car and put a cinder block through her car windows.” J.A. 2926. Regarding the standoff, Sheriff Woodley stated that Shareef initiated the disturbance because he “had no respect for authority.” J.A. 2927. 36 you could distract people and to do whatever you feel you need to do to the enemy. They

were being taught that regularly on a daily basis.” J.A. 2429. Dr. Myers testified that he

was “struck by the fact that there seemed to have been a good deal of violence in his family

of origin” as well as “the fact that there seemed to be a lot of psychopathology there.” J.A.

2621–22. Dr. Cooper-Lewter acknowledged, however, that there was no evidence that

Mahdi was physically or sexually abused by his father or any other figure in his life.

Regarding Mahdi’s suicidal ideations as a child, Dr. Cooper-Lewter referred to an

incident where Mahdi “attempt[ed] to kill himself by jumping off of a bridge,” J.A. 2411,

as well as his diagnosis at the Carter Center with major depression recurrent with suicidal

ideation and severe attachment disorder. Nevertheless, Mahdi’s records indicated to Dr.

Cooper-Lewter that he “only want[ed] to hurt [him]self when [he could not] have [his]

way.” J.A. 2528. Dr. Haney agreed that there were clear instances when Mahdi expressed

suicidality for purposes of manipulation.

Further, Dr. Haney testified that Mahdi’s “social history became an institutional

history at age 14,” after which he “was institutionalized for approximately eight and a half

out of every 10 days of his life . . . in juvenile facilities and adult prison facilities.” J.A.

2570. And Mahdi’s records are “replete with . . . impulsive acting out.” J.A. 2574. During

Mahdi’s time in the DJJ, he was diagnosed with conduct disorder, which “means that you

. . . act in ways that are unacceptable, maybe even harmful. In other words, you don’t

behave properly” and typically do not show remorse. J.A. 2435. At one point, the DJJ had

to ban Mahdi from participating in an anger control group, citing an incident where he

became “very upset and continually threatened that if he [did] not get released from DJJ

37 on 9/23/99 he [was] going to fuck people up and go around acting crazy.” J.A. 2523. In a

separate report, Mahdi stated that if he was not released on time, the DJJ would find him

hanging in his cell. They later found him “with a sheet tied around his neck sitting in his

cell and they put him on suicide watch.” J.A. 2524. Mahdi “reported that he did not really

intend to harm himself. He just wanted to go to special housing because he believed he

could receive more recreation time there.” J.A. 2525.

Dr. Cooper-Lewter testified that when Mahdi returned to the DJJ after the standoff,

his personality assessment revealed a “dysphoric emotionally immature adolescent with a

conduct disorder.” J.A. 2501–02. “He operated in a . . . way as if he was emotionally

isolated and mistrustful of the world around him.” J.A. 2504. This culminated in “suicidal

ideation or suicidal threats and gestures,” including an instance when he tried to electrocute

himself in his cell. J.A. 2504. Mahdi also “began to act out in destructive ways.” J.A. 2506.

Soon after he was released from the DJJ, Mahdi went back into custody after his

conviction for stabbing Rivera. Dr. Haney 16 testified that upon entering custody, a VDOC

psychologist diagnosed Mahdi “with intermittent explosive disorder and antisocial

personality disorder.” 17 J.A. 2596. Dr. Myers agreed this was “a justifiable diagnosis at the

16 Significantly, Dr. Haney cabined his assessment of Mahdi to “what [he] believe[d] that institutionalization did to [Mahdi],” not whether “it had anything to do with the commission of these crimes.” J.A. 2604. Dr. Haney knew nothing of the specific facts of Captain Myers’ murder and could not testify as to any connection between Mahdi’s time in jail and his crimes “because [Dr. Haney did not] know the specifics of those events.” J.A. 2605. 17 Antisocial personality disorder is “a pattern of behavior in which a person disregards the rights of other people, feels entitled to have whatever he wants to, [and] is typically associated with criminal behavior but not necessarily.” J.A. 2657. 38 time.” J.A. 2657. Mahdi was sent to Wallens Ridge, an adult super-max facility in Virginia,

which Dr. Cooper-Lewter described as an “environment where racial epithets were spoken

to the correctional officers, where people were tasered. [Mahdi] was. He speaks of at least

14 or 15 times that he was tasered.” J.A. 2510. However, Dr. Cooper-Lewter acknowledged

that Mahdi’s VDOC records did not reflect any such incidents.

Dr. Schwartz-Watts conducted an independent psychological assessment of Mahdi

for purposes of the PCR evidentiary hearing. She diagnosed him with major depression

recurrent with psychotic features and remission, reactive attachment disorder of childhood

inhibited type, anxiety disorder, paranoid personality disorder, and antisocial personality

disorder. She also testified that “he [was] suffering these same diagnoses” when he

committed the underlying offenses, J.A. 2669, though she later conceded that “on that day

he may not have been depressed at all,” J.A. 2694. Dr. Schwartz-Watts further clarified

that Mahdi

did not kill this officer because of PTSD. He did not kill Officer Myers because of his depression. He wasn’t irritable. He was at a point in my opinion [that] it’s a robbery gone bad. He is at a place. He gets surprised and he kills a person. So, [the diagnoses are] present but in terms of like having a statutory mitigator that they diminished his capacity, I don’t see that.

J.A. 2676.

Further, Dr. Schwartz-Watts testified that Mahdi told her “that he was not really

suicidal,” “denie[d] that he’s ever been depressed,” “denied that he asked police to kill

him,” and “repeatedly stated [during his time] in super-max that there is nothing wrong

with him.” J.A. 2691. She also believed Mahdi “is very intelligent . . . above average in

intelligence and very perceptive.” J.A. 2693.

39 2. The State’s PCR Evidence

The State called seven members of Mahdi’s South Carolina defense team: (1)

private investigator James Gordon, Jr.; (2) mitigation investigator Paige Haas; (3)

psychiatrist Dr. Thomas Martin; (4) forensic psychologist Dr. Geoffrey McKee; (5)

attorney Carl B. Grant; (6) lead trial counsel Walters; and (7) second-chair trial counsel

Koger. 18

a. The Mitigation Investigation Team

Gordon and Haas (collectively, the “Mitigation Investigation Team”) testified about

their efforts to compile evidence for the sentencing portion of Mahdi’s trial. Gordon helped

the South Carolina defense team locate members of Mahdi’s family and also participated

in team meetings. The State asked Gordon about a memorandum from one of those

meetings, which included a note from Mahdi’s North Carolina mitigation investigator 19

stating that Carson “classified Mahdi as a demon because of all the . . . trouble that he [got]

into” and “indicate[d] that there was conflict in their home.” J.A. 2706; accord J.A. 6642

(admitted copy of the memorandum, stating “[Mahdi’s] uncle thought he was a demon and

conflicts did occur”). 20

18 The only team members not called were Aiken and Hammock—both of whom testified at the sentencing hearing—as well as Don Grindt, a retired South Carolina Law Enforcement Division agent hired as a crime-scene investigator. 19 Mahdi was indicted for Boggs’ murder and was represented by an independent North Carolina defense team. 20 When asked at the PCR hearing if he called Mahdi a “demon,” Carson claimed he had no memory of doing so but conceded, “Yea, given his behavior I guess I could have said it.” J.A. 2272. 40 Haas had an active role interviewing potential witnesses. 21 She began her work by

meeting with Mahdi, who relayed his background and family history. Haas also submitted

requests to each school Mahdi attended, hospitals (specifically seeking his psychiatric

records), and correction facilities (including DJJ, VDOC, and SCDC). She testified that

she went to the schools that Mahdi had attended and spoke with teachers from

Lawrenceville and Baltimore. Haas said that, though there were “[s]ome nice teachers that

remember[ed] him,” she did not speak with anyone “that spent lots and lots of time with

him while he was there.” J.A. 2787.

As part of her efforts, Haas created a psychiatric chronology for Mahdi. She also

traveled to Lawrenceville, Baltimore, and Philadelphia to meet with Mahdi’s family

members, once by herself and another time with Hammock. During these visits, Haas met

with Nancy, Nathan, Vera, Shareef, and Carson.

Haas believed Nancy “potentially” could have been a good witness, but testified

that Nathan was not “helpful at all.” J.A. 2777. As for Vera, Haas described her difficulty

in establishing a basic rapport with her and her shortcomings as a potential witness:

The first time I was supposed to be able to talk to her and was unable to because she wouldn’t come out of her house. The second time she had agreed to see us but when we got there she said that she was sorry but she had to wash her hair and would not be able to come outside or talk to us—did speak by phone like from the inside of the house to us like on the speaker phone on the cellphone. So we did talk to her by phone outside of her house—you know, her inside of her house and us outside of the house.

J.A. 2768–69.

21 Haas estimated she had served as a mitigation investigator in approximately thirty to forty capital cases. 41 Regarding her conversation with Shareef, Haas said that she did not “know what

kind of witness he would have been,” given that they “spen[t] a lot of time . . . talking a lot

about his . . . personal beliefs.” J.A. 2773. And Haas relayed that when she asked Carson

about the incident that led to Mahdi’s involuntary commitment, he said he “still laughs

about th[at] today because he feels [Mahdi] was just being manipulative and really wasn’t

struggling [with suicidality].” J.A. 2774.

Haas also met with Mahdi’s North Carolina attorney, Mark Rabil, and mitigation

investigator, Janet Holahan. Haas testified that she would have relayed any information

“dealing with [any] of the potential witnesses in the case” that she received from Holahan

to Mahdi’s South Carolina defense team. J.A. 2776.

b. Mahdi’s Mental Health Experts

The State called Dr. Martin and Dr. McKee, Mahdi’s mental health experts hired by

his South Carolina defense team. Both provided a similar account of Mahdi’s reason for

leaving Virginia for North Carolina at the beginning of his crime spree. According to Dr.

Martin, it had “something to do with a murder” and he wanted to “avoid homicide

detectives” in Virginia. J.A. 2714. Mahdi told Dr. Martin “that he had murdered . . . in a

bad drug deal another individual which he thought had not been discovered—at least that

he was perhaps a suspect . . . because he said it was unreported.” J.A. 2715.

Mahdi told Dr. McKee a similar story, stating that he “felt that his life was in danger

. . . because of a rumor that he . . . had killed this other guy’s cousin.” J.A. 2751. Mahdi

also told Dr. McKee

that he and this other person were going to force another person to make meth

42 and . . . that this other person went to rob this person who shot back and . . . that he was just there and not the trigger man, but the man got killed and so apparently there was some sort of homicide that he was at least present for.

J.A. 2751. 22

Turning to their professional assessments, Dr. Martin determined that Mahdi “had

a behavioral problem that led to a lot of failed relationships, interactions that were hostile[,]

aggressive, sometimes quite violent in nature, and that he had some depressive issues that

were . . . subsequently recurrent due to failure to integrate into society.” J.A. 2717. Mahdi

was “a loner” who “was essentially becoming a racist militant in his own way.” J.A. 2717.

“His outlook on life was quite violent. His way of surviving [was] by force. He seemed to

have no difficulty talking about killing people if necessary in order to achieve

independence.” J.A. 2717. Dr. Martin also found Mahdi “didn’t seem to have remorse

about any of the circumstances that were violent in his past.” J.A. 2718. Regarding Mahdi’s

“recurrent suicidal threats,” Dr. Martin found he was “very manipulative,” citing Carson’s

statements that “he [did] this all the time to get his way.” J.A. 2718.

Ultimately, Dr. Martin diagnosed Mahdi with antisocial personality disorder and

determined he did not “appear to be acting under any influence of any depression at the

22 At the PCR hearing, Mahdi’s counsel who represented him before the trial court conveyed a similar version of this story. Grant testified that Mahdi “was running from an incident that occurred [in Virginia] where he was involved in supposedly in somebody being killed or stabbed.” J.A. 2793. Mahdi told Walters that “he was with some other individuals and he wanted to create an artificial drought” by “kill[ing] a number of drug dealers” so that “everyone would have to buy drugs from Mr. Mahdi and his associates.” J.A. 2805. According to Walters, “in the process of creating that artificial drought there was an individual that was killed and as a result of that there was an investigation that was going on and in addition to that there were other skirmishes that were going on.” J.A. 2805. 43 time” of Captain Myers’ murder. J.A. 2719. Mahdi “described very clearly to [Dr. Martin]

what he was feeling and what he was perceiving during this event. There was no talk of

feeling depressed, psychotic.” J.A. 2720. Rather, Mahdi said he “was justified,” stating,

“Great leaders or mass murderers, people only understand force.” J.A. 2723.

Dr. McKee administered various tests, including a personality assessment screener;

the information and orientation questions from the Wechsler Memory Scale, Third Edition;

and “a device for measuring short-term . . . memory.” J.A. 2752. He also diagnosed Mahdi

with antisocial personality disorder. Dr. McKee opined that Mahdi was not suffering from

any other mental illness at the time of Captain Myers’ murder.

Both Dr. Martin and Dr. McKee relayed their findings and told trial counsel they

did not believe their testimony would be helpful for Mahdi’s case.

c. Mahdi’s Counsel

The State also called the attorneys who represented Mahdi before the trial court. 23

Grant testified about assembling Mahdi’s South Carolina defense team, 24 upon which he

greatly relied, “trust[ing] professionals who normally [were] very competent in that

responsibility,” whom he felt obtained “everything that [they] felt [they] needed.” J.A.

2794. In describing a motion for a continuance he filed after visiting Mahdi’s North

Carolina counsel, Grant said that he was “discover[ing] that there was going to be a whole

lot more information [related to Mahdi’s background and family for mitigation purposes]

23 Grant was initially appointed as lead counsel, but later had to withdraw after a motorcycle accident. Walters was first appointed as second-chair and became lead counsel after Grant’s withdrawal. Koger replaced Walters as second-chair. 24 Grant had been involved in one death penalty case prior to representing Mahdi. 44 that [they] would need in order to adequately present Mahdi’s case on the case in South

Carolina.” J.A. 2798. The trial court granted the motion and continued the case from

January 2006 to November of that year.

Grant and Walters further testified about the mental health experts they hired to

evaluate Mahdi. According to Grant, neither Dr. Martin nor Dr. McKee found anything

“that could have been used in the penalty phase.” J.A. 2792. To the contrary, Grant recalled

“the things that were presented by Dr. McKee actually could have been irritating as far as

personality and things that would indicate that maybe we were dealing with . . . somebody

who would [not] be painted in a good light in front of a jury.” J.A. 2792. Walters provided

a similar account, testifying that Dr. Martin and Dr. McKee suggested Mahdi was “fine”

and that there was “no insanity defense here, and there [were] no impairments.” J.A. 2812.

In response, trial counsel took the position that they could not “keep going down this road

and [the doctors could not] write this report.” J.A. 2812.

Walters and Koger also testified about their interviews with potential witnesses from

Mahdi’s family. Ultimately, Walters concluded that Mahdi’s family members “were

unwilling to assist” and “were just simply indifferent about him. They didn’t really care.”

J.A. 2828–30. Specifically, Walters testified:

[Mahdi’s] father refused to participate or his position was sort of standoffish and he didn’t want to be involved.[25] His mother made it clear she wasn’t going to be involved because she was going to wash her hair, and as far as the other sibling [Saleem] he was serving in the military, and as far as the

25 According to Koger, Mahdi told trial counsel he did not want his father to participate, and trial counsel agreed “that any type of testimony from his father would not be advantageous to Mr. Mahdi’s cause.” J.A. 2895–96. 45 close family—the aunts—they made it clear, you know, we’re through with this.

....

They seemed as if it was a self-fulfilling prophecy that something bad was going to happen to him anyway.

....

My people went in. They did the best they could. They’re experts and they are good at what they do. They garnered all of the information they could and they attempted to put forth the best defense for Mr. Mahdi.

....

[W]e wanted an individual that would testify favorably for him and . . . [i]n our search to determine if someone wanted to help Mr. Mahdi, they were standoffish. If you want to find information about someone you start with the family and the family can then relate to you to other people and say maybe these people can assist you. Their position was it started off bad, something bad has happened now, and we knew it was headed this way, and we’re not going to jump in an [sic] save him.

J.A. 2837–39.

Walters recalled Nathan as someone who “didn’t want to be bothered” and “was

proud of the fact that he had identified his nephew for the North Carolina authorities.” J.A.

2814. Koger agreed. When asked if Nathan was cooperative with the mitigation team’s

efforts, Koger responded, “Not at all.” J.A. 2892.

Walters described Nancy as “a very proud woman” who “wanted to brag about the

accomplishments of the family. She did not want to address the issues with regard to her

grandson and how he got there.” J.A. 2815–16. Walters determined “this testimony [would

not have been] helpful” if all she planned to do was “brag about the accomplishments and

46 the educational ability of all of [her] children” other than Shareef. J.A. 2816. Koger

provided a similar account, testifying that although Nancy was cooperative, she was not

helpful:

She was there every day of the trial, and we talked to her every day after the trial. . . . [A]nd we would speak with her . . ., but she consistently wanted to talk about clearing the family name and we’re not these type of people and things of that nature, and really didn’t get the point[.]

J.A. 2893.

Walters testified that he also spoke with Carson and Lawanda by telephone, but

decided not to call Carson as a witness because

he laughed after the issue where Mr. Mahdi said he was going to kill himself and that he had been abused, and . . . had a sadistic sense of humor about each event in this child’s life as if he was malingering, he was a faker. It was sort of twisted.

J.A. 2819, 2820. Further, Lawanda

had to severely beat [Mahdi] over and over again. It moved from being chastising the child and whipping the child to a significant beating every day, and, of course, Carson even in the interviews admitted that sometimes he would not stop his wife from doing so because he wanted the united front.

J.A. 2820. “[T]heir position was[,] We’re glad he’s out of our house. We did the good deed.

No one applauded us for it, and now you want us to get involved in attempting to help him

in a murder case . . . . [H]e is getting his just desserts.” J.A. 2820.

Though trial counsel “wanted someone there that would assist Mr. Mahdi in this

process,” Nancy was the only one who was present for sentencing. J.A. 2821. Again,

though, “[t]he problem with Nancy was [that] she wanted to explain to a Calhoun County

jury all of the accolades of the family and how successful they were.” J.A. 2821. But trial

47 counsel did not “need testimony coming in to save the family name.” J.A. 2821. They

needed “testimony that directly deal[t] with Mikal Mahdi.” J.A. 2821.

Trial counsel decided Hammock was their best option to present Mahdi’s family

history and articulate the issues that occurred in his life, in part, because this would allow

them to limit the amount of negative evidence that would have otherwise come in had they

called any lay witnesses. The “bigger problem,” according to Walters, was the fact that

there was a videotape of Mahdi killing Boggs. 26 J.A. 2826. “So [trial counsel] could [have]

[m]arch[ed] in 100 family members. . . , [but they] knew this was a disk sitting in

everybody’s file that would show an execution-style murder . . . that occurred.” J.A. 2826.

Thus, it was imperative to curb any additional evidence that would have undermined their

mitigation strategy.

Finally, when asked why trial counsel did not challenge the constitutionality of

judicial sentencing under

, Walters responded,

[W]e wanted [the trial court] to sentence him and the reason was sitting judges that have practiced law for an extensive period of time and are also involved in the prosecution and defense of criminal cases they are desensitized and sort of immune when they hear—not to say anything disparaging, but they’ve seen plenty of murder cases over and over and over again as opposed to a lay person that may see this film. If you’ve handled murder case after murder case after murder case, you can focus on the issues. You can take in the significance of the murder itself and the other factors and make a rational decision.

J.A. 2883–84.

26 As noted earlier, the tape was admitted into evidence during the sentencing hearing over Mahdi’s objection. 48 F. The PCR Court’s Ruling and Appeals

After deliberating, the PCR court entered an exhaustive opinion denying each of

Mahdi’s IAC claims. In so doing, it set out the proper standard for reviewing claims under

Strickland and its progeny, and framed its analysis around the Supreme Court’s controlling

precedent. This is the opinion we review here, so a detailed summary of that court’s

findings and conclusions follows.

1. The Jury Sentencing Claim

The PCR court found “no merit” to Mahdi’s Jury Sentencing Claim because he

failed to “specify the jury sentencing advantages to which he allude[d], []or how counsel

inadequately advised him of those advantages.” J.A. 7528. At bottom, Mahdi “did not

testify, and offered no testimony or other evidence at the merits hearing on this issue.” J.A.

7528. Nor did he “question any of his former appointed attorneys” about it. J.A. 7528. As

a result, the PCR court determined Mahdi “failed to meet his burden of proof,” J.A. 7528,

resulting in both his waiver and abandonment of this claim.

Nevertheless, the PCR court concluded in the alternative that the record established

“Mahdi was fully advised of his rights to jury sentencing and the pros and cons of having

a jury conduct his sentencing verses [sic] a judge determining his sentence.” J.A. 7529.

Between representations from trial counsel about how they advised Mahdi on this issue

and statements from the trial court, the PCR court found that “Mahdi clearly understood

his right to have a jury determine his sentence.” J.A. 7529. And Mahdi “offered no

testimony on this issue and offered no evidence that contradicted counsel’s sworn

testimony on this issue” at the PCR evidentiary hearing. J.A. 7530. The PCR court found

49 “counsel’s testimony on this issue to be credible” and “supported and corroborated by

Mahdi’s responses to [the trial court’s] questions during the guilty plea itself.” J.A. 7530.

According to the court, “[t]here [was] no proof that [trial] counsel was deficient in

any manner in this regard.” J.A. 7531. But even if they were, the PCR court held that Mahdi

could not prove prejudice because there was no “reasonable probability he would not have

pled guilty, and would have proceeded to trial with a different outcome,” in light of the

“record, including counsel’s credible testimony, the record of the plea proceeding, and the

evidence that would have been submitted to the chosen jury, including the horrendous facts

of Myers’s murder, the murder of Christopher Boggs in North Carolina, and Mahdi’s

maladaptive prison behavior and atrocious criminal record,” J.A. 7531.

2. The Mitigation Evidence Claim

The PCR court bifurcated its analysis of the Mitigation Evidence Claim into

Strickland’s familiar two-pronged approach. First, it considered whether trial counsel were

deficient in their representation of Mahdi. Though the PCR court found “no merit to these

allegations,” J.A. 7532, it nevertheless proceeded to the second prong of the analysis and

considered whether Mahdi would have been prejudiced had counsel’s performance been

deficient.

a. Deficient Performance Prong

In the Mitigation Evidence Claim, Mahdi asserted trial counsel were deficient by:

(1) failing to call several of Mahdi’s extended family members and community members;

(2) presenting testimony through Hammock as opposed to Dr. Cooper-Lewter; (3) failing

to introduce testimony from an expert like Dr. Haney concerning the effect of Mahdi’s life

50 of incarceration; (4) failing to adequately investigate, develop, and present evidence of

Mahdi’s mental health history; and (5) failing to introduce various records at the sentencing

hearing. The PCR court rejected each of these subclaims on their merits. As discussed

below, Mahdi procedurally defaulted all but one aspect of the first subclaim (non-family

lay witnesses) because he failed to appeal the dismissal of all the remaining subclaims (2

through 5 above) to the Supreme Court of South Carolina. Therefore, we focus our

attention on that portion of the PCR Court’s analysis denying Mahdi’s first subclaim that

trial counsel provided ineffective assistance by failing to call non-family lay witnesses

during his sentencing hearing.

The court concluded that “[t]he record supports counsel in this case conducted a

reasonable and thorough mitigation investigation and presented what mitigation they could

that was favorable to Mahdi at the time of the sentencing proceeding.” J.A. 7556.

According to the PCR court, counsel’s performance could not have been deficient because

“much, if not all, of the evidence Mahdi offered at PCR regarding his family and social

history, whether through family or community witnesses, was cumulative to the evidence

presented in Mahdi’s capital sentencing proceeding” through Hammock’s testimony and

exhibits. J.A. 7560.

In addition, the PCR court cited the “credible evidence at the merits hearing

show[ing] counsel retained a qualified mitigation investigator,” Haas, who “went to the

schools Mahdi attended,” “spoke with teachers” who were familiar with him, and compiled

a summary of his school records, which were introduced at the sentencing hearing. J.A.

7600–01. The PCR court also cited Hammock’s testimony about Mahdi’s difficulties in

51 school, frequent moves, and educational gaps before concluding that trial counsel

“conducted a reasonable investigation of Mahdi’s school history and presented the same”

to the trial court. J.A. 7602.

b. The Prejudice Prong

After reviewing the “overwhelming,” aggravating evidence presented at the guilty

plea and sentencing hearings, “along with all the evidence in mitigation Mahdi alleges

should have been presented”—“along with the aggravating evidence that would have

almost certainly come in on cross-examination, rebuttal, or contained within the evidence

itself, and the mitigation evidence presented at the sentencing hearing before [the trial

court]”—the PCR court found there was “no reasonable probability [the trial court] would

have returned with a different sentence.” J.A. 7627. Thus, even if trial counsel had been

deficient, Mahdi had “failed to prove prejudice.” J.A. 7627.

3. The Judicial Sentencing Claim

Turning to Mahdi’s final IAC claim, the PCR court dismissed any suggestion that

trial counsel were ineffective for failing to assert that

is

unconstitutional. The South Carolina Supreme Court had rejected that exact argument on

several occasions before Mahdi’s sentencing. “Therefore, counsel could not have been

deficient in failing to preserve an issue that has no merit under law.” J.A. 7635.

Moreover, “counsel correctly testified at the PCR hearing” that “Mahdi decided to

plead guilty because [he] believed he had a better chance of receiving a life sentence from

[the trial court] than from the jury he had selected.” J.A. 7636. And the PCR court, having

“had the opportunity to view the witnesses and hear their testimony on this issue,” found

52 “trial counsel’s testimony on these issues to be credible.” J.A. 7636. And “Mahdi offered

no testimony to contradict trial counsel’s testimony on these issues.” J.A. 7636. Thus, the

PCR court determined that “Mahdi wanted to be sentenced by [the trial court], not the jury

he had initially selected and [e]mpaneled.” J.A. 7636. And so, “it would have made no

sense for Mahdi to have objected to the constitutionality of the statute and insist on pleading

guilty and being sentenced by the jury, and counsel was not ineffective in failing to object

to the constitutionality of”

. J.A. 7636

****

Represented by separate appellate counsel, Mahdi appealed only one aspect of the

PCR court’s denial of his Mitigation Evidence Claim:

Was [Mahdi] denied the effective assistance of counsel at his capital sentencing proceeding by trial counsel’s decision to rely entirely on a single expert witness to present mitigating evidence about [Mahdi’s] background instead of calling available lay witnesses who could have provided detailed and specific testimony in mitigation?

J.A. 7721. In his filings with the South Carolina Supreme Court, Mahdi clarified that he

was challenging only the PCR court’s ruling “denying his claim that available non-family

members, i.e., members of the community, including his former teachers, should have been

called as witnesses.” J.A. 7822. He did not challenge the remainder of the PCR court’s

decision, including its rejection of the other subclaims from the Mitigation Evidence Claim.

Both that court and the U.S. Supreme Court denied his appeal.

G. The Second State-Court PCR Proceedings and Appeals

Seven years after filing his first PCR application, Mahdi’s federal habeas counsel

filed a successive one in South Carolina state court. In addition to re-raising the Jury

53 Sentencing, Mitigation Evidence, and Judicial Sentencing Claims from his first PCR

application, Mahdi presented a fourth IAC claim for review:

• The “Guilty Plea” Claim: Trial counsel rendered ineffective assistance because they “advised [Mahdi] that the guilty plea would be considered as mitigation.” J.A. 8181.

The State moved to dismiss. The PCR court granted the motion and entered an order

denying Mahdi’s application because: (1) it was time barred under the one-year South

Carolina statute of limitations for PCR actions,

; (2) it was

improperly successive,

(the Supreme Court of South Carolina

will refuse to consider claims raised in a second appeal that could have been raised at an

earlier time); S.C. App. Ct. R. 203(d)(3), 243 (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); (3) the State was entitled to judgment as a matter of law based on the

pleadings; and (4) the State was entitled to judgment as a matter of law because there was

no genuine issue of material fact. Mahdi appealed to the South Carolina and the U.S.

Supreme Courts. Both denied his petitions.

H. Mahdi’s Emergency Motion in the District Court for Supplemental Expert Funding

After filing a placeholder § 2254 petition, Mahdi’s federal habeas counsel submitted

an ex parte emergency motion in the district court to amend the expert witness budget,

noting that they had “recently discovered evidence related to race-based trauma that

[Mahdi] experienced during his childhood that . . . warrant[ed] presentation” as a claim

under Martinez v. Ryan,

(2012). J.A. 11. Counsel indicated they had contacted

Dr. Hope Hill, a Professor at Howard University, who agreed to develop and present this

54 evidence. The motion asked the district court to authorize $22,500 in fees and $2,500 in

travel expenses for her.

The following day, the magistrate judge entered an ex parte text order directing

counsel to provide the following relevant information:

(1) a brief outline of the “recently discovered evidence” related to race-based trauma that [Mahdi] experienced that provides the basis for an additional expert witness; [and] (2) a brief summary of how this information impacts the claims to be raised by [Mahdi] in the Amended Petition.

J.A. App. F, ECF No. 69.

In response to the first query, Mahdi represented that “[t]rial counsel and PCR

counsel failed to investigate, in detail, [his] genealogy” because, although “counsel very

generally pieced together family biographies, there was no in-depth examination of Mr.

Mahdi’s lineage.” J.A. 29. Federal counsel, however, represented that they had “been able

to explore the history of Mr. Mahdi’s paternal side of the family,” which they discovered

“descends directly from the relationship between a slave-owner and a slave.” 27 J.A. 29–30.

According to Mahdi, “[t]his information is critical, particularly in light of [his] mindset

prior to the crimes at issue in this case.” J.A. 30. And had trial or PCR counsel been aware

of this “slave lineage,” it should have “led to an examination of the intersection of race and

trauma.” J.A. 30.

27 Mahdi particularly faults his PCR counsel, pointing to a note in a report from Dr. Cooper-Lewter that Mahdi was a descendent of a White homeowner’s relationship with the family’s Black gardener. Mahdi submits that, “[a]t a minimum, that should have warranted a closer investigation of [his] lineage, which would have revealed [his] slave lineage and led to an examination of the intersection of race and trauma.” J.A. 30. 55 Mahdi pointed to a letter he wrote to Nancy in 2003 expressing “a deep desire and

yearning to learn about his ancestry, as he believed that helped define who he was as a

person.” 28 J.A. 30–31. This was important, according to federal habeas counsel, because

Mahdi

grew up in a home with conflicting dualities about race: His grandmother constantly emphasized the importance of “fitting in” and “passing as white,” while his father converted to Islam to shed his “slave name” and repeatedly taught [Mahdi] to rebel against “white society” and indoctrinated [him] in anti-white and anti-establishment propaganda.

J.A. 31. Mahdi’s counsel stated that their “aim [was] to continue to explore information

about Mr. Mahdi’s family history and lineage in order to develop new mitigation themes

and evidence that ha[d] not been presented.” J.A. 31.

As for how this information would impact his claims, Mahdi submitted that the new

evidence could show that race and his family history played some part in his development

and subsequent criminal acts. Mahdi’s “prior defense teams—both at trial and PCR—did

not focus or develop any strong evidence or narrative to address the multiple aspects of

trauma that [he] experienced throughout his life.” J.A. 31. “While some evidence was

presented in PCR about generalized stressors that Mr. Mahdi experienced, PCR counsel

completely overlooked the importance that race and Mr. Mahdi’s family history played in

28 The letter stated: I have gotten to a point in my life when I start to wonder who my ancestors are, trace my roots to see where I come from. I really want to know these things . . . Where does the Burwell lineage come from? I want to know these things, it’s sad that I don’t know my ancestry. I should know these things. This is somewhat of an important issue to me. Please tell me. J.A. 31. 56 his development and subsequent criminal acts.” J.A. 31. Dr. Hill, according to counsel,

would be able to examine the “impact of these traumatic events and stress factors on Mr.

Mahdi in the context of his unique ancestry and extrinsic and intrinsic racial identity,” J.A.

31, while also analyzing “the additional impact of the repeated racial ‘microaggressions’

that Mr. Mahdi experienced from his grandmother, father, community, and other family

members,” J.A. 32, and how they emboldened his survivalist mentality.

The district court denied the emergency ex parte motion. Noting that “counsel

want[ed] to present as much beneficial evidence as possible,” the court reiterated its own

duty to determine “what [was] reasonably necessary for adequate representation” to

warrant funding under

(a)(2). J.A. 39. And here, the district court had

already approved “$20,000 in funding for a mitigation investigator (and an additional

$2,000 for the mitigation expert’s travel expenses) and $12,500 for a social historian.” J.A.

40. Mahdi’s federal mitigation investigator, Sam Dworkin, had already “compiled a

detailed family history, tracing Mr. Mahdi’s family back to English settlers who arrived in

Virginia in 1648 and set up large plantations.” J.A. 30.

To that end, the court specifically found Mahdi’s “[c]ounsel ha[d] not set out why

the issue of trial counsel’s alleged ineffectiveness regarding the failure to present

mitigation evidence could not be fully developed through the use of the mitigation

investigator and social historian.” J.A. 40 (citing Wright v. Angelone,

(4th Cir. 1998) (“[A]n expert should be appointed when a substantial question exists over

an issue requiring expert testimony for its resolution and the defendant’s position cannot

be fully developed without professional assistance.”)). “While counsel may find it

57 preferable to present this claim through a psychologist with a specialty in race-based

trauma, the court [found] such an expert unnecessary to fully develop the claim of

ineffective assistance of counsel in regard to mitigation evidence.” J.A. 40.

Mahdi moved to alter or amend, claiming the standard used by the district court was

more demanding than the one announced by the Supreme Court’s intervening decision in

Ayestas v. Davis,

(2018). According to Mahdi, “Ayestas required [the

district court] to [have] provide[d] [him] with necessary resources so he would have [had]

a fair opportunity to show why [it] should [have] excuse[d] the procedural bars” as to his

claim. J.A. 555.

The district court denied the motion and explained that it had “recited the applicable

standard [for funding requests] and focused on whether the requested services were

reasonably necessary to adequately represent Mahdi.” J.A. 911. After summarizing the

Ayestas decision—which was decided a year after Mahdi’s emergency ex parte motion was

denied—the district court rejected Mahdi’s contention that it “ha[d] an obligation to

authorize funding for experts where a mitigation investigator ha[d] identified a need for

expert assistance” as being “directly contradicted by Ayestas’s emphasis on the district

courts’ broad discretion in assessing funding requests.” J.A. 911. “Counsel’s preferences

. . . do not equate to a showing that a reasonable attorney would disregard certain services

as sufficiently important or reasonably necessary.” J.A. 911.

The district court explained that

[a] review of Mahdi’s original funding request suggests that counsels’ mitigation investigator had already gathered all of the pertinent factual information counsel planned to allege [that] trial and PCR counsel should

58 have presented and that counsel had already formed reasoned arguments as to why that information was critical to Mahdi’s mitigation presentation.

J.A. 912. “Those arguments included the impact of Mahdi’s lineage and upbringing on his

own racial identity and how the resulting internal conflict may have affected him.” J.A.

912. “The court could not discern from counsels’ request what additional value a

psychological report on this subject would offer and, thus, could not find the requested

services reasonably necessary.” J.A. 912. Indeed, even in his motion to reconsider, “Mahdi

broadly assert[ed] the necessity of the psychologist’s services . . . but still fail[ed] to

articulate specific reasons why the services were warranted.” J.A. 912. Thus, the court

reaffirmed its decision to deny the motion.

I. Mahdi’s § 2254 Petition for Habeas Corpus

1. Mahdi’s Petition

Mahdi’s § 2254 petition raised the Jury Sentencing, Mitigation Evidence, Judicial

Sentencing, and Guilty Plea Claims. See Mahdi v. Stirling, No. 8:16-3911,

(D.S.C. Sept. 24, 2018). 29 The State moved for summary judgment. Mahdi

attached an affidavit from Dworkin, to his response in opposition. 30 Dworkin suggested

trial and PCR counsel were ineffective for failing to investigate and present certain

evidence in five key areas of Mahdi’s life: (1) his history of race-based trauma; (2) alleged

physical abuse by his father; (3) his father’s mental illness and admissions to instilling

29 Mahdi raised other claims as well, which we do not address here. We limit this summary to only those claims that received a COA. 30 As previously noted, the district court granted Mahdi’s request for $22,000 in expert funding to hire Dworkin to conduct his investigation. 59 violence in his children; (4) his attempts to get his life back on track during the summer of

2004; and (5) Nancy’s letters to North Carolina counsel suggesting South Carolina trial

counsel were not engaging with her.

Regarding race-based trauma, Dworkin stated that federal habeas counsel’s

investigation “uncovered that African American lineage resulting in [Mahdi’s] immediate

family line was the product of slave and slave owner.” J.A. 367. He claimed this lineage

was relevant because “a core component of mitigation” stems from Mahdi’s “significant

race-based trauma, . . . including knowing who [he] is, where he comes from, and how the

experiences of his, and his family’s, past directly form mitigating information.” J.A. 367.

Concerning allegations of Shareef’s physical abuse, Dworkin cited an interview

with Nate Burwell, IV (“Nate”), Nathan’s son and Mahdi’s paternal cousin, who “recall[ed]

[Mahdi] and Saleem being beaten by their father as children, saying that he [Nate] ‘can

hear them screaming still.’” J.A. 371 (alteration in original). He also remembered “Vera

needing to abandon her family to avoid the abuse of Shareef.” J.A. 371.

Turning to Shareef’s mental illness and indoctrination of his sons, Dworkin

represented that he had interviewed Mahdi’s father and discovered information trial and

PCR counsel had failed to uncover. Specifically, Dworkin referred to Shareef’s decision to

change his name and remove Mahdi from formal schooling as “isolating” events. J.A. 369–

70. Shareef also admitted he was “on a more ‘Jihadist tip’ for a while and imparted those

radical lessons to his son,” telling Mahdi “that the American Way and society was ‘built

on killing people and taking shit.’” J.A. 370.

60 Regarding the brief period during the summer of 2004 immediately following

Mahdi’s release from VDOC’s custody, Dworkin posited that he “was engaged in sincere

efforts to re-enter society.” J.A. 372. These included a desire to return to school to complete

his GED as well as applying for food stamps. According to Dworkin, “[t]hese are steps one

does not take if they are truly disengaged from society. . . . These are all solid and concrete

examples of a young man trying to integrate and take his second chance seriously.” J.A.

373.

Finally, Dworkin suggested trial counsel were “disengaged from the Burwell

family, who wanted to be involved.” J.A. 373. In support, Dworkin cited a 2005 letter

Nancy wrote to Mahdi’s North Carolina trial counsel, “relay[ing] that there had been no

communication with South Carolina counsel.” J.A. 374.

2. The District Court Denies Mahdi’s Petition

After reviewing the issues and extensive record (including Dworkin’s affidavit), the

district court entered a thorough opinion granting the State’s motion for summary

judgment. On the Jury Sentencing Claim, the court determined Mahdi’s assertion that his

trial counsel were ineffective for failing to adequately advise him of the advantages of jury

sentencing was directly contradicted by the record. Citing the transcripts from the ex parte

and guilty plea hearings as well as Walters’ testimony from the PCR evidentiary hearing,

the district court found “nothing in this evidence to rebut the presumption that trial counsel

provided effective representation and adequately advised Mahdi so that he could make a

fully-informed decision to plead guilty.” Mahdi,

, at *45.

61 Addressing the Mitigation Evidence Claim, the district court concluded Mahdi

preserved only one aspect of it for review under § 2254(d)—whether “trial counsel were

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

witnesses”—because that was the sole issue he raised on appeal from his first state-court

PCR proceeding. Id. at *15. After providing a detailed summary of the evidence presented

at sentencing, the trial court’s judgment, and the evidence presented at the PCR merits

hearing, the district court determined the PCR court had properly applied Strickland and

its progeny—as well as their South Carolina state law equivalents—in holding that Mahdi

had not shown trial counsel were deficient. Moreover, the district court found “the PCR

court’s determination that the PCR evidence was cumulative [was] not unreasonable.

While the PCR evidence certainly expanded on and added depth to Ms. Hammock’s

testimony and the other evidence offered at sentencing, it would not have significantly

altered the sentencing profile presented to the” trial court. Id. at *30.

The district court determined the remaining aspects of Mahdi’s Mitigation Evidence

Claim were procedurally barred. In considering Mahdi’s arguments to overcome that bar,

the court focused its analysis on his assertion that he had established cause and prejudice

under Martinez. At bottom, Mahdi suggested the district court should excuse his procedural

default because his PCR counsel were ineffective for failing to investigate the five claims

Dworkin identified in his affidavit.

The district court rejected each of Mahdi’s arguments, finding trial and PCR counsel

had conducted an adequate investigation and, even if they hadn’t, that he was nevertheless

not prejudiced by any failure by PCR counsel to present this newly discovered information.

62 Nor did any of these new points fundamentally alter Mahdi’s claims. The district court

reasoned that “the evidence in Mr. Dworkin’s affidavit was included, to various degrees,

in the PCR evidentiary hearing.” Id. at *38. And “even assuming that counsel were

deficient in all the ways Mahdi alleges, after independently reweighing all of the

aggravating and mitigating evidence, . . . absent the alleged errors,” the district court

determined “there is no reasonable probability that [the trial court] would have reached a

different sentencing decision and the court remains confident in this case’s outcome.” Id.

at *40. Mahdi therefore had not carried his burden to excuse his procedural default.

Turning to the Judicial Sentencing Claim, the district court found South Carolina’s

capital sentencing procedures did not violate Mahdi’s constitutional rights. It summarized

that “Ring established that when a defendant exercises his right to a jury trial on a capital

offense, he is entitled to have a jury determine any aggravating factors necessary to impose

a death sentence.” Id. at *41. But it noted that the Supreme Court of South Carolina had

distinguished Ring because it “‘did not involve jury-trial waivers and [thus] is not

implicated when a defendant pleads guilty’ under South Carolina’s death penalty statute.”

Id. at *42 (quoting Downs,

). Thus, it concluded, “trial counsel were not

ineffective for failing to raise a meritless claim.” Id. at *43; see also id. at *43 n.40

(observing that “[i]n the two years prior to Mahdi’s trial, the Supreme Court of South

Carolina decided three cases expressly finding the death penalty statute constitutional and

noting Ring was not implicated when a capital defendant pled guilty”). Moreover, the court

determined that, “[a]long with waiving his right to a jury trial, Mahdi expressly and

63 voluntarily waived his right to jury sentencing,” while also “admit[ing] to the facts of the

crime as stated by the [State].” Id. at *42.

Finally, regarding the Guilty Plea Claim, the district court found “trial counsel

[were] not at fault for Mahdi’s alleged misunderstanding that his guilty plea would

automatically preclude a death sentence.” Id. at *45. It observed that, in fact, the record

suggests Walters “explicitly informed” Mahdi that “pleading guilty did not guarantee a life

sentence.” Id. (emphasis added). Moreover, it concluded trial counsel’s advice was not

incorrect as the trial court expressly incorporated Mahdi’s guilty plea into the penalty phase

and considered it as part of his sentence. And the trial court, “[which] was in a unique

position to assess these factors, did not refuse to consider Mahdi’s guilty plea or penalize

him for the timing” since it occurred one day after he was caught with the handcuff key in

the courtroom. Id. at *46. In the district court’s view, the trial court “properly assessed how

the plea, in context, reflected Mahdi’s character and, in particular, his alleged acceptance

of responsibility. This is exactly the type of individualized consideration required in capital

sentencing.” Id. (citing Lockett v. Ohio,

(1978) (“Given that the

imposition of death by public authority is so profoundly different from all other penalties,

we cannot avoid the conclusion that an individualized decision is essential in capital

cases.”)).

Mahdi filed a timely notice of appeal. This Court has jurisdiction under

and

(c)(1)(A).

64 II.

We granted a COA on five issues: (1) whether the district court abused its discretion

in denying Mahdi’s supplemental expert funding request; (2) the Jury Sentencing Claim;

(3) the Mitigation Evidence Claim; (4) the Judicial Sentencing Claim; and (5) the Guilty

Plea Claim. We first address Mahdi’s funding request before considering his IAC claims.

A. Supplemental Expert Funding Request

Under

, district courts “may authorize” expert funding in capital

cases so long as it is “reasonably necessary for the representation of the [petitioner].”

§ 3599(f); see id. § 3599(a)(2). The Supreme Court has explained that

[p]roper application of the “reasonably necessary” standard . . . requires courts to consider [(1)] the potential merit of the claims that the applicant wants to pursue, [(2)] the likelihood that the services will generate useful and admissible evidence, and [(3)] the prospect that the applicant will be able to clear any procedural hurdles standing in the way.

Ayestas,

. Though it may be error for a district court to refuse funding, it

is only so in “those cases in which funding stands a credible chance of enabling a habeas

petitioner to overcome the obstacle of procedural default.”

(emphasis added). To that

end, the Supreme Court and “Congress ha[ve] made it clear . . . that district courts have

broad discretion” in this assessment.

(emphasis added); see also

(noting that by

using the word “may” in § 3599, Congress “made it perfectly clear that determining

whether funding is ‘reasonably necessary’ is a decision as to which district courts enjoy

broad discretion”). Thus, we will reverse a district court’s denial of a funding request only

if we determine it abused that considerable discretion. This is a heavy burden not easily

carried.

65 Mahdi renews his argument that the district court applied an overly demanding legal

standard in denying his ex parte emergency motion to amend the expert witness budget to

facilitate further investigation into a possible mitigation claim related to race-based trauma.

According to Mahdi, the court improperly relied on our decision in Wright, which he

alleges is “outdated.” Opening Br. 53. Had the district court “applied the correct standard,

as dictated by Ayestas,” Mahdi contends, “it would have necessarily found that a

‘reasonable attorney would regard the services as sufficiently important.’” Opening Br. 54

(quoting Ayestas,

). Indeed, Mahdi suggests “the District court was

required to provide” him with the requested funds “to demonstrate that he could overcome

the procedural default” on his race-based trauma claim. Opening Br. 55 (emphasis added).

We find no merit in Mahdi’s argument. Before turning to its substance, however,

we observe at the outset that the factual premise upon which it rests is contrary to the

record. In his ex parte emergency motion to amend the budget, Mahdi represented that the

only “recently discovered evidence” warranting further review as a potential Martinez

claim was that his father was descended from the union between a slave and his owner.

J.A. 29. The record, however, refutes Mahdi’s claim because it plainly shows that “the

history of Mr. Mahdi’s paternal side of the family,” specifically the fact that he is a direct

descendent “from the relationship between a slave-owner and a slave,” J.A. 29–30, was

expressly presented to the PCR court during the evidentiary hearing, see J.A. 2496

(Lawanda testifying that Nancy’s ancestor “was the product of a relationship between a

slave and an [I]rish woman” and that the “woman was sent to Boston with child and the

father of the child disappeared, [meaning he] was never seen again”); J.A. 2959 (Dr.

66 Cooper-Lewter’s social history of Mahdi’s family stating that Shareef’s “great-

grandmother was a white woman from Broadnax, Virginia” who was “impregnated by the

family’s black gardener who is believed to have been subsequently murdered by her

family”).

The district court could not have abused its discretion by denying a motion for

supplemental funding that, on its face, was premised entirely on “recently discovered

evidence” that was already developed and presented to the PCR court. Thus, Mahdi’s

efforts to expand this previously discovered evidence into a Martinez claim had little

chance of bearing fruit because the PCR court had already heard this same evidence. See

Vandross v. Stirling,

(4th Cir. 2021) (noting that one of the requirements

for invoking Martinez is that “it is likely that no state court will hear the prisoner’s claim”).

The district court was therefore well within its “broad discretion,” Ayestas,

, in concluding the requested funding was not “reasonably necessary,”

(f).

But even looking past this disqualifying defect, as the district court did, and

considering the merits of Mahdi’s argument, we would reach the same conclusion. We note

that the district court did not cite Ayestas or expressly set out that case’s framework in its

initial decision. But it couldn’t have, given that the Supreme Court decided Ayestas one

year after the district court entered its order. Nevertheless, the court did consider the exact

argument Mahdi now presents when it rejected his motion to alter or amend the decision.

In doing so, the district court explained and applied the three-pronged Ayestas standard,

making clear that it had denied the funding request because: (1) “counsels’ mitigation

67 investigator had already gathered all of the pertinent factual information counsel planned

to allege [that] trial and PCR counsel should have presented and that counsel had already

formed reasoned arguments as to why that information was critical to Mahdi’s mitigation

presentation”; and (2) it “could not discern from counsels’ request what additional value a

psychological report on this subject would offer and, thus, could not find the requested

services reasonably necessary.” J.A. 912. In other words, under Ayestas, the district court

determined the services were not “reasonably necessary” because they were cumulative,

unlikely to generate additional useful and admissible evidence, and lacked merit. That

determination was not an abuse of discretion, and it negates Mahdi’s main contention that

the court failed to consider his funding request in light of Ayestas.

Furthermore, as the district court pointed out in its first denial order, at no point in

Mahdi’s emergency motion or at any point thereafter did he identify any themes that he

intended to pursue through this supplemental funding request or make even a minimal

showing that he would be able to overcome the procedural bar to warrant review. Nor did

he forecast what Dr. Hill’s report would contribute beyond the information his previously

approved $34,500 in funding for a mitigation investigator and social historian had already

yielded. 31 See J.A. 40 (“Counsel has not set out why the issue of trial counsel’s alleged

ineffectiveness regarding the failure to present mitigation evidence could not be fully

31 We observe that this appears to be the entirety of what Mahdi asked for in his initial proposed budget. See J.A. 11 (“Petitioner previously submitted a budget in this case, which was approved by the Court.”). Eventually, Mahdi determined he did not need a social historian. As a result, he did not use the $12,500 allocated for that expert. But he never asked that those funds be reallocated to Dr. Hill. Rather, his ex parte motion sought $25,000 in addition to the $34,500 he had already received. 68 developed through the use of the mitigation investigator and social historian. While counsel

may find it preferable to present this claim through a psychologist with a specialty in race-

based trauma, the court finds such an expert unnecessary to fully develop the claim of

ineffective assistance of counsel in regard to mitigation evidence.”). Instead, Mahdi

presented what he incorrectly claimed to be a newly discovered fact—that his father was

descended from the union between a slave and his owner—of which he had no knowledge

at the time he committed his crimes. Mahdi offered no context for how this previously

presented fact could have played a role in Captain Myers’ murder. Nor did he present any

compelling argument in his emergency motion justifying the expenditure of $25,000 to

convert this latent fact into a Martinez claim. What’s more, despite the district court’s

specific ruling in the first denial order, Mahdi wholly failed to address in his motion to alter

or amend why Dr. Hill’s services were warranted. See J.A. 912 (“In the current briefing,

Mahdi broadly asserts the necessity of the psychologist’s services and conclusively alleges

that those services would enable him to establish both prongs of his Martinez claim . . . ,

but [he] still fails to ‘articulat[e] specific reasons why the services [were] warranted.’”

(citing Ayestas,

) (alterations in original)).

The dissent suggests that in reaching this conclusion, we “ignore[] . . . the expertise

that mental health clinicians bring to the table.” Diss. Op. 116. But we cannot ignore what

wasn’t presented to the district court or to this Court. In his response to the district court’s

ex parte text order, Mahdi suggested that Dr. Hill would “be able to examine the impact of

[race and his family history] on Mr. Mahdi in the context of his unique ancestry and

extrinsic and intrinsic racial identity.” J.A. 31. He further suggested that Dr. Hill would

69 “systemically evaluate how Mr. Mahdi’s background, racial identity, and the trauma that

he experienced emboldened his ‘survivalist’ mentality.” J.A. 32. Thus, he concludes, Dr.

Hill would “tie together cogent and powerful mitigation themes that have not yet been

presented in this case.” J.A. 33.

But these vague representations were made in the context of Mahdi’s initial ex parte

motion, which was premised entirely on the “recently discovered evidence” concerning his

slave lineage and Dr. Hill’s ability to help “develop and present” it. J.A. 11. Again, in his

response filing, Mahdi made clear that the “‘recently discovered evidence’ . . . that

provide[d] the basis for an additional expert witness” was his assertion that “[t]rial counsel

and PCR counsel failed to investigate, in detail, [his] genealogy.” J.A. 29 (emphasis added).

At no point, despite multiple opportunities and invitations to do so, did Mahdi offer any

justification for how yet another mental health professional’s assessment of his genealogy

would help him “tie together cogent and powerful mitigation themes” for the court to

understand his ineffective assistance claim beyond those he was already able to present

through Dworkin. J.A. 33. Nor did Mahdi provide even a hint of what those “themes” might

have been or how Dr. Hill’s assessment would assist in developing them. J.A. 33. Unlike

the dissent, we decline to speculate and fill in those gaps for him.

Mahdi has been evaluated by no less than seven mental health experts since his

arrest for Captain Myers’ murder. Dr. Hill would have been at least the eighth. Particularly

relevant here, Mahdi’s own expert witness in the PCR court, Dr. Cooper-Lewter, had

already conducted an extensive evaluation of Mahdi’s race-based trauma and family

history. See, e.g., J.A. 2955 (examining the “Family and Cultural Context” of Mahdi’s

70 upbringing, including Dr. Cooper-Lewter’s belief that they were “fragile people who were

often overwhelmed by their efforts to find acceptance in society, especially in light of racial

and socioeconomic issues”); J.A. 2956 (addressing Shareef’s “passionate[]” and

“religious[]” lectures “about the ‘unfairness’ of white people”); J.A. 2957 (summarizing

Mahdi’s experiences at Wallens Ridge, which he maintains were filled with “racial

epithets” and threats of violence, proving “that everything his father taught him was true”);

J.A. 2958–65 (providing a detailed social history of Mahdi’s family, including the “social

limitations and frustrations of the[] cultural and racial relations growing up in the Jim Crow

South,” his slave lineage, Nancy’s efforts for she and her children to “pass for white,” and

Shareef’s intense racial views and animus towards white people); J.A. 2978–80 (discussing

Shareef’s rantings, home-schooling, and survivalist training to protect his children from

“white folks coming to kill them”). And Mahdi never delineated for the district court what

Dr. Hill’s additional analysis of these topics would “bring to the table,” Diss. Op. 116,

beyond what Dr. Cooper-Lewter’s review had already contributed.

At bottom, Mahdi did not present any meaningful argument beyond his own ipse

dixit representations as to why his supplemental request for funding—that is, beyond what

had already been provided—was “reasonably necessary.” We cannot say that the district

court abused its discretion by denying Mahdi carte blanche to pursue any theory he wished

based on nothing more than his vague request. See Hartsell, 127 F.3d at 349 (“[A]

defendant does not have the right to public funding for all possibly helpful avenues of

investigation or all possibly useful expert services, but only to the level of support required

by the Due Process Clause.”). And Ayestas does not compel a contrary result.

71 The Fifth Circuit reached the same conclusion in Jones v. Davis,

(5th

Cir. 2019). There, the petitioner—raising a similar argument to the one Mahdi presents

here—asserted that the district court improperly denied his request for investigative

funding because it failed to follow the rubric set out in Ayestas (which, like here, post-

dated the district court’s decision).

at 373–74. The court had denied the petitioner’s

request because “he had not shown that he was likely to uncover anything beyond what his

experts had already addressed.”

. The Fifth Circuit affirmed, holding that

“[b]ecause the reasons the district court gave for its ruling remain sound after Ayestas, . . .

remand [was] unnecessary.”

The same is true here.

Moreover, this Court’s decision in Wright—upon which the district court relied in

rejecting Mahdi’s expert funding request—requiring petitioners to present a “substantial

question” over an issue to secure funding,

, is a far cry from the Fifth

Circuit’s practice condemned in Ayestas, which required petitioners to demonstrate a

“substantial need” for funding by essentially “prov[ing] that [they] will be able to win relief

if given the services [they sought],”

(second emphasis added). Indeed,

Wright’s requirement aligns with the second part of the Ayestas rubric—i.e., a petitioner

must establish that the evidence he seeks to develop is useful and admissible. See Wright,

(noting that “a substantial question” must “exist[] over an issue requiring

expert testimony for its resolution and the defendant’s position cannot be fully developed

without professional assistance” in order to justify the expenditure of funds). In other

words, Wright stands for the uncontroversial proposition that in order to justify expert

funding, a petitioner must show that there is an issue warranting expert review. Ayestas did

72 nothing to undermine that requirement. See

(holding that “the

‘reasonably necessary’ test requires an assessment of the likely utility of the services

requested”). And Mahdi did nothing to satisfy it. See

(approving the requirement that

“an applicant must articulate specific reasons why the services are warranted”).

The dissent suggests that the district court erred by “impos[ing] a strict necessity

requirement” mandating that Mahdi prove “it was impossible to develop his claim without

Dr. Hill.” Diss. Op. 111−112. There is no basis in the record for that contention. The district

court simply required Mahdi to specify why this “recently discovered evidence”

concerning his genealogy necessitated the assistance of a psychology expert in addition to

those experts for whom funding had already been allocated. And, after being afforded

multiple opportunities to do so, Mahdi failed to present any explanation as to why Dr. Hill’s

assistance was “reasonably necessary” in light of what he had already received. As a result,

the district court did not abuse its discretion in denying his request.

The dissent appears to take issue with the district court for applying any standard in

reviewing Mahdi’s supplemental funding request as opposed to the limitless one it

proposes. See Diss. Op. 111 n.5 (suggesting § 3599 imposes no specificity requirement and

grants broad access for petitioners to hire experts without offering any suggestion of what

those experts may uncover). To adopt this reading of

as compelling courts

to grant funding requests whenever counsel subjectively deems them necessary would

eviscerate any semblance of their discretionary function. The Supreme Court did not

establish such a broad construction in Ayestas. And we decline to do so here. We therefore

affirm the district court’s denial of Mahdi’s supplemental request for expert funding. 73 B. The IAC Claims

We turn next to the district court’s denial of Mahdi’s IAC claims, which we review

de novo. Grueninger v. Dir., Va. Dep’t of Corr.,

(4th Cir. 2016). We

first set out the standards guiding that review.

1. Standards of Review

a. AEDPA Deference

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), federal

courts may “entertain” an application for a writ of habeas corpus from an inmate in state

custody “in violation of the Constitution or laws or treaties of the United States.”

(a). In doing so, we follow “Congress’ prohibition on disturbing state-court

judgments . . . absent an error that lies beyond any possibility for fairminded

disagreement.” Mays,

. Thus, § 2254 “is not to be used as a second

criminal trial, and federal courts are not to run roughshod over the considered findings and

judgments of the state courts that conducted the original trial and heard the initial appeals.”

Williams v. Taylor,

(2000).

To that end, federal courts cannot grant habeas relief under § 2254 unless the state

PCR court’s decision: (1) “was contrary to” clearly established Supreme Court case law;

(2) “involved an unreasonable application” of the same; or (3) “was based on an

unreasonable determination of the facts in light of the” record before it.

(d)); Harrington v. Richter,

(2011); Vandross,

.

This standard is “intentionally difficult to meet” to safeguard principles of comity, finality,

and federalism. Woods v. Donald,

(2015) (per curiam).

74 A decision is “contrary to” clearly established federal law “if the state court applies

a rule different from the governing law set forth in [the Supreme Court’s] cases, or if it

decides a case differently than [the Supreme Court has] done on a set of materially

indistinguishable facts.” Bell v. Cone,

(2002). Stated differently, the

petitioner must show that the state court’s decision was “diametrically different, opposite

in character or nature, or mutually opposed” to federal law as determined by the Supreme

Court. Vick v. Williams,

(4th Cir. 2000).

For an “application of federal law” to be “unreasonable,” it must be “objectively”

so. Owens v. Stirling,

(4th Cir. 2020). To qualify, the state court must

“correctly identif[y] the governing legal principle from the Supreme Court’s decisions but

unreasonably appl[y] that principle to the facts of the particular case.” Tyler v. Hooks,

(4th Cir. 2019). The state court’s decision must be “so lacking in justification

that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington,

.

Finally, determinations of facts are “unreasonable” when they are “sufficiently

against the weight of the evidence.” Williams v. Stirling,

(4th Cir. 2019)

(quoting Winston v. Kelly,

(4th Cir. 2010)). That said, a “state court’s

factual determinations are presumed correct, and the petitioner must rebut this presumption

by clear and convincing evidence.” Bennett v. Stirling,

(4th Cir. 2016);

accord § 2254(e)(1). “We must be especially deferential to the state PCR court’s findings

on witness credibility, and we will not overturn the court’s credibility judgments unless its

error is stark and clear.” Elmore v. Ozmint,

(4th Cir. 2011). Thus, “[a]

75 state-court factual determination is not unreasonable merely because the federal habeas

court would have reached a different conclusion in the first instance.” Burt v. Titlow,

(2013) (quoting Wood v. Allen,

(2010)).

b. Procedural Hurdles

Before we can consider whether relief is available through one of § 2254’s three

narrow exceptions, however, the petitioner must first demonstrate that he has cleared a

series of procedural hurdles. For example, the petitioner must exhaust his state court

remedies,

(b)(1)(A), by “present[ing] his claim to the state’s highest

court,” Matthews v. Evatt,

(4th Cir. 1997), abrogated on other grounds

by United States v. Barnette,

(4th Cir. 2011), including “both the operative

facts and the controlling legal principles associated with each claim,” Longworth v. Ozmint,

(4th Cir. 2004).

“A distinct but related limit on the scope of federal habeas review is the doctrine of

procedural default”—often referred to as a procedural bar—one example of which occurs

“when a habeas petitioner fails to exhaust available state remedies and the court to which

[he] would be required to present his claims in order to meet the exhaustion requirement

would now find the claims procedurally barred.” Breard v. Pruett,

(4th

Cir. 1998); see also Reed v. Ross,

(1984) (stating that a petitioner’s failure

to abide by a state court’s procedural rules for presenting claims in state court results in a

procedural default of those claims in federal court absent “cause and actual prejudice”). In

addition, procedural default occurs when “a state court clearly and expressly bases its

dismissal of a habeas petitioner’s claim on a state procedural rule, and that procedural rule

76 provides an independent and adequate ground for the dismissal.” Breard,

.

Relevant here, a claim is procedurally barred if the petitioner “fail[s] to raise [it] in his

petition for certiorari to the South Carolina Supreme Court for review of the State PCR

Court’s decision.” Longworth,

.

Petitioners may nevertheless overcome this bar in limited circumstances by

“demonstrat[ing] cause for the default and actual prejudice.” Sigmon v. Stirling,

(4th Cir. 2020) (quoting Coleman v. Thompson,

(1991)). 32 To

establish “cause,” the petitioner must show “‘that some objective factor external to the

defense impeded counsel’s efforts’ to raise the claim in state court at the appropriate time,”

Breard,

(quoting Murray v. Carrier,

(1986)), or that

“the factual or legal basis for the claim was not reasonably available . . . at the time of the

state proceeding,” Roach v. Angelone,

(4th Cir. 1999). “An attorney

error does not qualify as ‘cause’ . . . unless [it] amounted to constitutionally ineffective

assistance of counsel.” Davila v. Davis,

(2017). Generally,

“[b]ecause a prisoner does not have a constitutional right to counsel in state postconviction

proceedings, ineffective assistance in those proceedings does not qualify.”

A narrow exception exists under the Supreme Court’s decision in Martinez “when

(1) the state PCR court is the first occasion for raising the claim,” which is the case in South

32 Petitioners may also overcome the procedural bar if they can establish that a “fundamental miscarriage of justice would result from” the federal court’s failure to consider their claim. Farabee v. Clarke,

(4th Cir. 2020). To do so, the petitioners must demonstrate they are actually innocent, which requires “factual innocence, not mere legal insufficiency.” Bousley v. United States,

(1998). Mahdi makes no such argument here. 77 Carolina; “(2) the petitioner’s counsel provided ineffective assistance in the PCR court”;

and “(3) it is likely that no state court will hear the prisoner’s claim.” Vandross,

. Thus, a petitioner

satisfies Martinez by showing, first, that initial postconviction counsel performed deficiently, under the first prong of Strickland, by failing to exhaust the underlying ineffective-assistance-of-trial-counsel claim, but not that said counsel’s deficient performance was prejudicial, under the second prong of Strickland; and second, that the underlying claim is substantial, or has some merit, with respect to both prongs of Strickland.

Owens, 967 F.3d at 423. To be clear, the Supreme Court created this narrow exception to

be applicable only to allegations of IAC by PCR counsel. It does not apply to claims of

IAC by PCR appellate counsel. See Johnson v. Warden of Broad River Corr. Inst., No. 12-

7270,

, at *1 (4th Cir. 2013) (unpublished) (per curiam) (“Accordingly,

because Johnson alleges only ineffective assistance of appellate postconviction counsel,

his allegations do not constitute cause for his failure to exhaust under the limited exception

in Martinez.”).

c. IAC

To establish IAC, a petitioner must prove: (1) his counsel was deficient in his

representation; and (2) he was prejudiced as a result. Strickland, 466 U.S at 687. For the

first prong, the petitioner must show that “counsel’s representation fell below an objective

standard of reasonableness.”

. Stated differently, “[t]he challenger’s burden is to

show that counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Harrington,

. To

satisfy the second prong, a petitioner must show that “there is a reasonable probability that,

78 but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland,

. In the context of a guilty plea, the petitioner has to

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

have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,

(1985).

We are ever mindful that “[j]udicial scrutiny of counsel’s performance must be

highly deferential,” and “court[s] must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” Strickland,

. And when we apply Strickland and § 2254’s highly deferential standards “in tandem,

[our] review is doubly so.” Harrington,

.

As the Supreme Court directs, we only discern “whether the state court’s application

of the Strickland standard was unreasonable. This is different from asking whether defense

counsel’s performance fell below Strickland’s standard.”

. The critical question

thus is not whether we or the district court can see a “substantial . . . likelihood of a different

result” had counsel taken a different approach. Cullen,

. Rather, “[a]ll that

matter[s] [is] whether the [South Carolina] court, notwithstanding its substantial ‘latitude

to reasonably determine that a defendant has not [shown prejudice],’ still managed to

blunder so badly that every fairminded jurist would disagree.” Mays,

(final alteration in original) (quoting Knowles v. Mirzayance,

(2009)).

That is a very high bar.

****

Having set out the relevant standards of review, we now turn to Mahdi’s claims.

79 2. The Jury Sentencing Claim

In Mahdi’s first IAC claim, he contends the PCR court erred in finding trial counsel

were not ineffective for purportedly failing to explain the general proposition that “jury

sentencing may actually result in a life sentence, while on the same facts and arguments

judge sentencing may result in a death sentence.” Opening Br. 76. He maintains the district

court’s conclusion that this claim was “directly contradicted by the record” improperly

interpreted the facts in a “light most favorable to” the State rather than to him as the non-

moving party. See

According to Mahdi, “[a] description of ‘pluses and minuses’ does

not show that [he] was made aware by his trial counsel that [the trial court’s] sentencing

could,” in theory, “be more likely to result in a death sentence than a jury’s sentencing.”

Opening Br. 77. Nor, Mahdi alleges, does the fact that he understood “how a jury . . .

sentencing would proceed” necessarily show that he knew how a judge sentencing would

proceed. J.A. 537. 33 We find Mahdi’s argument without merit. 34

33 Mahdi also challenges the district court’s rejection of his argument that trial counsel were ineffective because “they had not obtained a guarantee that the judge would not impose a death sentence” before advising him to plead guilty. Reply Br. 15–16; Mahdi,

, at *45. Because Mahdi raised this argument for the first time in his reply brief, it is waived, and we do not consider it. Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc.,

, 602 n.13 (4th Cir. 2013). 34 The district court reached the merits of the Jury Sentencing Claim without addressing whether it was procedurally barred. See Mahdi,

, at *44 n.42. As previously noted, Mahdi did not appeal the PCR court’s rejection of this claim in his first PCR proceeding. And the Supreme Court of South Carolina rejected the Jury Sentencing Claim on procedural grounds during the second proceeding. As such, the claim is procedurally barred. See Longworth,

. However, because the Parties did not brief this issue and the procedural bar is not jurisdictional, see

(b)(2); Lambrix v. Singletary,

(1997), we too will sidestep that analysis for this claim and address the district court’s judgment on the merits. 80 As a threshold matter, neither the Parties nor the district court address the PCR

court’s factual finding that Mahdi waived and abandoned the Jury Sentencing Claim by

failing to “specify the jury sentencing advantages to which he allude[d],” “testify,” “offer[]

. . . testimony or other evidence,” or “question any of his former appointed attorneys on

this issue” at the PCR evidentiary hearing. J.A. 7528. And Mahdi has pointed to no record

evidence or presented any colorable argument in his briefs before this Court suggesting

this aspect of the PCR court’s decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law” or “based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.”

(d); see also Grayson O Co. v. Agadir Int’l LLC,

(4th Cir. 2017)

(“A party waives an argument by failing to present it in its opening brief or by failing to

develop its argument—even if its brief takes a passing shot at the issue.” (cleaned up)).

Moreover, Mahdi has failed to submit any evidence—“clear and convincing,” Bennett,

, or otherwise—to overcome the presumption that the PCR court’s factual

determination regarding his waiver is correct. Thus, we affirm the district court’s denial of

Mahdi’s Jury Sentencing Claim on this independent ground. See Scott v. United States,

(4th Cir. 2003) (reiterating that the Court is “entitled to affirm on any ground

appearing in the record”).

Even if we were to reach the merits of Mahdi’s argument, we find no flaw in the

district court’s conclusion that the record establishes he was fully advised of his rights to a

jury trial and sentencing, as well as the possibility that a jury could sentence him to life.

Specifically, before pleading guilty, trial counsel “discussed with [Mahdi the] options that

81 [were] available with regards to this case” and observed that he was “aware of the fact that

there are two phases to a trial, the guilt phase and also the sentencing phase.” J.A. 1178.

Trial counsel told Mahdi “that there [were] no guarantees with regards to either process”

and that “there [were] certain pluses and minuses with [a] jury.” J.A. 1179. Trial counsel

further

explained to [Mahdi] his constitutional rights, including the right to have a jury trial and the rights to have the jury determine whether his sentence would be life without the possibility of parole, if he were to be found guilty during the guilt phase of the trial, or the jury could return a verdict for death.

J.A. 1193.

Before accepting Mahdi’s plea, the trial court emphasized that “in order for a jury

to find [him] guilty, all 12 jurors must unanimously agree” and “in order for a jury to

recommend a death sentence, . . . all 12 jurors must agree to recommend the death

sentence.” J.A. 1197. The trial court also explained that “sentencing is conducted by the

Judge in any capital case where a defendant pleads guilty.” J.A. 1184. Mahdi indicated that

he understood he had “the constitutional right to have the jury decide [his] guilt or

innocence and, also . . . the constitutional right to have the jury determine [his] sentence.”

J.A. 1197. And he testified that trial counsel had “made [him] fully aware of” “the

constitutional safeguards that [he had] and the essential protections inherent in a jury trial.”

J.A. 1200. To that end, Dr. Cross confirmed Mahdi’s understanding of both judicial and

jury sentencing, as well as “the possible consequences for each,” before he pleaded guilty.

J.A. 1189.

On this record, there is simply no basis to conclude trial counsel’s performance was

82 deficient in this regard. And there is even less ground for finding the PCR court’s

determination was “so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement,”

Harrington,

, or “sufficiently against the weight of the evidence,” Williams,

. Accordingly, we cannot say that the PCR court’s rejection of Mahdi’s

Jury Sentencing Claim was unreasonable.

And even if trial counsel were somehow deficient in this regard, the PCR court’s

determination that Mahdi could not demonstrate prejudice was reasonable. As the PCR

Court observed, there is nothing in the record to suggest that Mahdi “would not have

pleaded guilty and would have insisted on going to trial.” Hill,

. To the

contrary, trial counsel made clear during the PCR hearing that the defense “wanted [the

trial court] to sentence” Mahdi because “sitting judges that have practiced law for an

extensive period of time and are also involved in the prosecution and defense of criminal

cases . . . are desensitized,” having “seen plenty of murder cases over and over and over

again as opposed to a lay person.” J.A. 2883–84. And the PCR court found trial counsel’s

“testimony on this issue to be credible.” J.A. 7530. Mahdi has presented no argument

suggesting this determination amounted to an error that is both “stark and clear.” Elmore,

. As such, we must be “especially deferential” to it.

What’s more, trial counsel’s testimony regarding Mahdi’s desire to proceed before

the judge for sentencing is especially convincing given the facts of this case. The

aggravating evidence was simply overwhelming. First, there were the grisly details about

the events leading up to Captain Myers’ murder, including the surveillance video capturing

83 Mahdi’s execution-style murder of Boggs 35 and Pitts’ testimony recounting the violent

carjacking. Trial counsel also had to consider the horrid facts surrounding Captain Myers’

murder itself, including Officer Curtis’ description of the scene, Ross’ summary of her

autopsy report and the state of Captain Myers’ body, as well as the numerous friends and

family members’ testimony about the impact Captain Myers’ murder had on their lives.

Further, trial counsel knew they had to contend with the events surrounding Mahdi’s arrest,

especially Sergeant Frost’s testimony recalling Mahdi’s statement that the only reason he

did not fire the assault rifle was because the gun’s “selector was stuck on a three shot and

[he did not] think [he] could have . . . shot [Sergeant Frost], the other cop, and . . . that

fucking dog.” J.A. 1243.

Trial counsel were also faced with overwhelmingly negative evidence concerning

Mahdi’s atrocious criminal record and maladaptive behavior while in custody. This

included Mahdi’s repeated statements showing his utter disregard for human life. See, e.g.,

J.A. 1280 (telling officers after the standoff that he was “going to kill a cop before [he]

die[s]”); J.A. 1310 (apprising officers after fighting them that “he should have killed” his

mother); J.A. 1363 (informing his neighbor that he “was going to knock [someone] off”);

J.A. 1465 (stating that he would kill an SCDC officer “the next chance he [got]”); J.A.

1482, 1497 (threatening to murder Officer Driggers); J.A. 1978 (threatening to “become

35 The district court granted Mahdi’s motion in limine to exclude the video of Boggs’ murder from being shown to the jury during trial. Nevertheless, the trial court allowed the tape to be admitted into evidence over Mahdi’s objection during sentencing. There is no reason to believe—and Mahdi has presented none—that the trial court would have refused to admit the tape had the sentencing been conducted by a jury. 84 homicidal” while in DJJ custody). This evidence also included other violent conduct,

including his participation in the standoff with his father, fighting with police officers,

stabbing Rivera, and repeated disciplinary infractions while in custody. Finally, there was

significant evidence concerning his efforts to escape from law enforcement and

confinement, including his comments to Coulson, testimony from SCDC Officers Prioleau

and Lane, as well as the fact that he had been caught smuggling a homemade handcuff key

into the courthouse during the opening days of trial.

At bottom, the aggravating evidence overwhelmingly supports the PCR court’s

conclusion there was no “reasonable probability he would not have pled guilty, and would

have proceeded to trial,” in light of the “record, including counsel’s credible testimony, the

record of the plea proceeding, and the evidence that would have been submitted to the

chosen jury.” J.A. 7531. Thus, we conclude the PCR court’s application of Strickland was

reasonable, see Harrington,

, and the district court properly denied Mahdi’s

§ 2254 petition on this ground.

3. The Mitigation Evidence Claim

Mahdi argues the district court erred in denying relief on his Mitigation Evidence

Claim for two reasons. First, he alleges the court “improperly concluded that [he]

procedurally defaulted on all but one of his mitigation [sub]claims”—that trial counsel

were deficient for failing to call non-family lay witnesses to testify on his behalf. Opening

Br. 56. Second, Mahdi maintains the court erred in finding the PCR court’s rejection of his

non-procedurally barred subclaim concerning non-family lay witnesses was an objectively

reasonable application of Strickland. We address each argument in turn.

85 a. Procedurally Barred Claims

Mahdi submits he can overcome the procedural bar on his defaulted subclaims by

demonstrating PCR counsel’s alleged failure to uncover evidence obtained by federal

habeas counsel. Though he raised six theories to overcome this hurdle before the district

court, he only presses two here: (1) that he can establish cause and prejudice under

Martinez; and (2) that the newly discovered evidence set out in Dworkin’s affidavit

fundamentally alters his Mitigation Evidence Claim. 36 Neither argument holds water.

i. Martinez Cause and Prejudice

Mahdi asserts that federal habeas counsel’s investigation revealed substantial

mitigation information that bolstered both his Mitigation Evidence Claim and rebutted the

State’s evidence in aggravation. Specifically, he argues that had PCR counsel presented

the five areas of newly discovered evidence set out in Dworkin’s affidavit, “there is at least

a reasonable probability that the outcome of the PCR proceeding would have been

different.” Opening Br. 58.

The State responds that Mahdi cannot rely on Martinez to excuse the procedural

default because the narrow exception that decision created applies only to allegations of

IAC by PCR counsel, not PCR appellate counsel. In Martinez, the Supreme Court

specifically limited its narrow application to first-level collateral review actions, reiterating

36 Though Mahdi sets out the other four theories in a footnote in his opening brief, see Opening Br. 57 n.14, we conclude he has waived any challenges to the district court’s rejection of them. See Wahi v. Charleston Area Med. Ctr., Inc.,

(4th Cir. 2009) (holding that an issue raised in a footnote and addressed with only a single declarative sentence asserting error is waived); see also Foster v. Univ. of Md.-E. Shore,

, 250 n.8 (4th Cir. 2015) (same for footnotes with argument). 86 that the new exception “does not concern attorney errors in other kinds of proceedings,

including appeals from initial-review collateral proceedings.”

. Thus, the

State maintains, the fact that Mahdi has discovered additional background evidence during

the federal habeas proceedings has no bearing on the analysis for whether his procedurally

barred subclaims are defaulted.

The State has the better argument. As discussed, Mahdi did not appeal the PCR

court’s rejection of any aspect of the Mitigation Evidence Claim in the first proceeding

apart from the denial of his subclaim that trial counsel were ineffective for failing to call

non-family members as witnesses. And when Mahdi tried to bring up the remaining facets

of the Mitigation Evidence Claim during the second state-court PCR proceeding, the

Supreme Court of South Carolina rejected all of them on procedural grounds. Therefore,

the subclaims are procedurally barred. See Longworth,

.

The burden now falls on Mahdi to “demonstrate cause for the default and actual

prejudice.” Sigmon,

(quoting Coleman,

). He fails at the

first step. There is no dispute that the “cause” for Mahdi’s procedurally defaulted subclaims

was PCR appellate counsel’s failure to appeal their denial to the Supreme Court of South

Carolina. But “ineffective assistance of appellate postconviction counsel . . . do[es] not

constitute cause for his failure to exhaust under the limited exception in Martinez.”

Johnson,

, at *1. Therefore, we affirm the district court’s determination

87 that Mahdi cannot overcome the procedural bar through Martinez for his defaulted

subclaims. 37

ii. Fundamentally Altered Claims

In another attempt to resurrect his procedurally defaulted subclaims, Mahdi

contends Dworkin’s newly discovered evidence “fundamentally altered” his Mitigation

Evidence Claim because PCR counsel “offered no evidence to support claims of race-based

trauma or the extent of Shareef’s abuse.” Opening Br. 60. Mahdi maintains “the new

evidence places [his claim] in a significantly different and stronger posture than it was

before the state courts,” thereby excusing the default. Reply Br. 9.

The State responds that Mahdi did present the substance of his claim to the state

courts, pointing to the principle that “the presentation of additional facts does not mean

that the claim was not fairly presented.” Br. 36 (quoting Moore v. Stirling,

(4th Cir. 2020)). From this, it concludes “Mahdi’s claim is decidedly one of

background information,” Id. at 37, that may have “strengthened [his] claim that trial

counsel should have done more” but does not “fundamentally alter” it, id. (quoting Moore,

).

We agree with the State. New evidence in a federal habeas matter fundamentally

alters a claim in the limited situation where the petitioner did not offer any evidence to the

state courts supporting the existence of a material fact. See Winston v. Kelly,

,

37 To the extent Mahdi is trying to raise the issues presented in Dworkin’s affidavit as separate Martinez claims—and not as a means to overcome the otherwise procedurally defaulted subclaims raised in his first PCR petition—we affirm the district court’s rejection of them for the reasons stated in its opinion. See Mahdi,

, at *34–38. 88 550 (4th Cir. 2010) (“Suppose, for example, that a petitioner on federal habeas introduces

new evidence to establish the existence of fact X, a fact required to prove his claim. The

claim will inevitably be stronger, regardless of the evidence the petitioner presented to the

state courts. However, if the petitioner presented no evidence to the state courts to establish

the existence of fact X, the claim will be fundamentally altered by the new evidence

presented to the district court.”). “This standard is not satisfied with new bits of evidence

but requires critical evidence that makes his claim both stronger and significantly

different.” Moore,

n.8.

At most, Dworkin’s newly discovered evidence consists of additional information

relating to Mahdi’s troubled history and his grandmother’s interactions with trial counsel.

And, as the State rightly observes, Mahdi presented voluminous evidence at both

sentencing and during his first state-court PCR proceeding regarding his background and

trial counsel’s mitigation efforts. Though this newly discovered evidence “has perhaps

strengthened [Mahdi’s] claim, . . . it has not ‘fundamentally altered’ it.” Gray v. Zook,

(4th Cir. 2015). “The heart of the claim remains the same: his trial attorneys

should have done more to show how [Mahdi’s troubled childhood] lessened his

culpability.” Id.; see Moore,

(“When new evidence only elaborates on the

evidence presented in state court, the claim is not fundamentally altered into a new, and

unexhausted, claim.”). As such, the district court was correct in rejecting Mahdi’s efforts

to overcome the procedural bar through this avenue as well.

The dissent disagrees, indicating instead that it would vacate the district court’s

grant of summary judgment on both subclaims and remand for further proceedings. As for

89 Mahdi’s race-based-trauma subclaim, the dissent posits that “[h]ad the district court

applied the correct legal standard” to Mahdi’s supplemental funding request, Diss. Op. 120,

it would have “granted funding to retain Dr. Hill,”

which, in turn, would have

supplemented Dworkin’s affidavit and, when taken together, would have presented “a

compelling argument that his race-based trauma subclaim was ‘new,’ and that Martinez

excused the procedural default,”

As previously noted, the dissent is simply incorrect at

the first step of its speculative journey. We do agree, however, that “[w]e don’t know what

we don’t know,” Diss. Op. 121, and thus decline to conjecture about what could have been

presented, if anything, had Mahdi answered the district court’s repeated inquiries.

Turning to the abuse subclaim, the dissent relies entirely on Nate’s allegedly

“substantial insight into the family dynamics,” 38 as contained in a single sentence in

Dworkin’s ten-page affidavit. J.A. 371; see also Diss. Op. 122. Specifically, the dissent

focuses on Nate’s claim that he can “recall[] [Mahdi] and Saleem being beaten by their

father as children, saying that he [Nate] ‘can hear them screaming still.’” J.A. 371

(alteration in original). That is the sole reference in the approximately 8,800-page record

suggesting that Shareef physically abused Mahdi. In toto. Full stop. The dissent concedes

as much. Diss. Op. 123 (“In fact, all evidence was to the contrary [i.e. that Shareef had not

abused Mahdi].” (emphasis added)). And despite the fact that Nate provided no details as

to the time period, frequency, or severity of the alleged abuse, the dissent nevertheless

38 The record provides no context for this assertion. There is no way of knowing what relationship, if any, Mahdi had with his cousin Nate. At most, we know Nate’s father, Nathan, had been unhelpful during the initial mitigation investigation and was proud of having identified Mahdi for the authorities. 90 characterizes the alleged abuse as “severe,” Diss. Op. 123, and “extreme,” id. at 123, 130

n.14, while also referring to it as “profound and chronic trauma,” id. at 130 n.14. This

portrayal has no basis in the record.

Even accepting Nate’s statement, we could just as easily speculate that Nate was

referring to a single incident when Shareef spanked Mahdi and his brother. That statement

would have as much support in the record as the dissent’s characterizations. Nothing in the

record gives any context to Nate’s isolated claim. We simply do not see how Nate’s vague,

unsupported, and unqualified allegation places Mahdi’s “case in a significantly different

and stronger evidentiary posture than it was when the state courts considered it.” Wise v.

Warden, Md. Penitentiary,

(4th Cir. 1988).

Nor do we “view[] the strength of childhood-abuse evidence as mitigating evidence

much differently than the Supreme Court, the South Carolina trial court, the State’s trial

counsel, and the State’s PCR counsel, among others—[the dissent] included.” Diss. Op.

124 (footnotes omitted). The fact of this case is that there is no evidence of childhood abuse

for us to give credence to. We will not diminish the strength of factually supported claims

of childhood abuse by sensationalizing the unsupported allegation here, which is contrary

to a massive record disproving any such speculation.

To that end, we also will not fault trial or PCR counsel for failing to elicit this claim.

The record does not support the dissent’s suggestion that Trial Counsel undertook little or

no effort “to find favorable mitigation evidence once they grew frustrated with those who

knew Mahdi best.” Diss. Op. 129. Nor is there any record support for the dissent’s assertion

that “trial counsel decided that Mahdi had not been abused as a child because both the

91 abuser and the abused denied it.” Diss. Op. 128. 39 In actuality, to the extent trial counsel

reached the conclusion that Shareef had not abused Mahdi, they did so after multiple

interviews of family members, teachers, community members, and the review of reams of

Mahdi’s medical, school, and court records. None of these raised even a scintilla of

physical abuse, much less that Nate was a witness to anything. And Dr. Cooper-Lewter,

one of Mahdi’s expert witnesses during the PCR hearing, reached the same answer after

conducting an extensive investigation. See J.A. 2953–54 (detailing each of the records he

reviewed and the family members and teachers he interviewed); J.A. 2541–42 (testifying

that there was “no evidence in this case” of “physical violence from his father”).

b. Non-Family Lay Witnesses

Turning to the only non-procedurally barred subclaim, Mahdi maintains that trial

counsel’s performance was deficient because, “[e]ven though [his] family, friends and

community members were available, trial counsel did not present a single witness who

personally knew [him] or who could properly bring to light the trauma [he] endured

throughout his childhood.” Opening Br. 62. And though Mahdi acknowledges that

39 In any event, we must consider PCR counsel’s actions in light of the fact that Mahdi never provided any information suggesting Shareef physically abused him. See Strickland,

(“Counsel’s actions are usually based, quite properly, . . . on information supplied by the defendant . . . . And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.”); DeCastro v. Branker,

(4th Cir. 2011) (“[T]he state court did not act unreasonably in refusing Petitioner’s attempt ot upend his conviction and sentence based on the information that he failed to timely provide to counsel.”). 92 Hammock’s testimony presented some of the troubled details of his life, he asserts “it was

woefully deficient.” Opening Br. 62–63.

The State suggests Mahdi’s argument “cannot be squared with the record.” Resp.

Br. 33. Reiterating the PCR court’s determination “that trial counsel made reasonable

investigation into Mahdi’s background,” Resp. Br. 29, the State emphasizes Hammock’s

credentials and testimony related to the effect Mahdi’s “educational, parental, and role

model issues, and other recognized risk factors . . . had on his development.” Resp. Br. 33–

34. Moreover, the State argues, the district court correctly found the PCR court’s decision

that the evidence presented by non-family lay witnesses during the PCR evidentiary

hearing was cumulative of that presented during the sentencing hearing was reasonable.

We agree that trial counsel’s performance was not deficient. As a threshold matter,

Mahdi has presented no grounds to conclude that the PCR court’s determination that trial

counsel “conducted a reasonable and thorough mitigation investigation and presented what

mitigation they could that was favorable to Mahdi at the time of the sentencing

proceeding,” J.A. 7556, was “sufficiently against the weight of the evidence,” Williams,

.

As Mahdi’s South Carolina defense team’s testimony—which the PCR court found

to be credible, see Elmore,

(reiterating that a state PCR court’s findings on

witness credibility” will not be overturned unless its error is “stark and clear”)—made

clear, the mitigation investigation was far from inadequate. To begin, trial counsel hired

Haas, a highly credentialled mitigation investigator, who testified that she met with Mahdi

and obtained records from each school Mahdi attended, hospitals (specifically seeking his

93 psychiatric records), and correction facilities (including DJJ, VDOC, and SCDC). She also

visited his schools and spoke with several teachers who knew and remembered Mahdi but

had not spent significant amounts of time with him. Haas also met with Mahdi’s North

Carolina mitigation investigator, and relayed information “dealing with [any] of the

potential witnesses in the case” to the South Carolina defense team. J.A. 2776. In addition,

trial counsel hired Hammock, a highly qualified social worker with an extensive

background in death-penalty litigation. Along with speaking to various members of

Mahdi’s family, Hammock testified that she met with a member of the community who

“didn’t know much about him” as part of her efforts to “tak[e] information from anyone

who would give information about [Mahdi], his life and his development.” J.A. 1595.

However, as the record makes clear, Haas’ and Hammock’s work bore little fruit in terms

of soliciting non-family lay witnesses to testify on Mahdi’s behalf. Indeed, according to

trial counsel, they “relied on [Mahdi’s] family to identify other potential witnesses,” but

they were “not helpful.” Mahdi,

, at *32.

Not only were Mahdi’s family members unhelpful in this regard, the PCR court also

made a credibility determination that they too were unwilling to serve as witnesses or assist

trial counsel. See J.A. 7556 (“This Court finds the testimony of counsel and their defense

team on [the Mitigation Evidence Claim] to be credible and the present testimony of

Mahdi’s witnesses regarding their previous willingness to testify to be not credible.”);

Elmore,

(reiterating that state PCR court’s credibility findings are not

overturned absent a “stark and clear” error in judgment). Mahdi has not challenged that

assessment.

94 But even if Mahdi’s family members had testified during sentencing, the evidence

adduced during the PCR merits hearing makes clear that they would have undermined his

key mitigation arguments. For example, Carson and Lawanda testified about Mahdi’s

manipulative behavior, including his frequent malingering about suicide and the incident

when he made a false claim of abuse in an effort to retaliate against them. Indeed, Carson

told Haas that he “still laughs about this today because he feels [Mahdi] was just being

manipulative and really wasn’t struggling [with suicide].” J.A. 2774. He also referred to

Mahdi as a “demon” based on his behavior. J.A. 2706. Rose described Mahdi’s anger and

violent conduct as a child, including “hit[ting his mother] a couple of times.” J.A. 2288.

Sophia testified about an incident where Mahdi slashed his mother’s tires because she

would not let him use her car.

During the PCR hearing, Haas and trial counsel also testified about their interactions

with other members of Mahdi’s family. Shareef spent most of his time during his meeting

with Haas “talking a lot about his . . . personal beliefs,” J.A. 2773, and otherwise “refused

to participate,” J.A. 2837. Vera refused to meet with anyone from the South Carolina

defense team. Saleem would not speak with them. Nathan was not “helpful at all,” J.A.

2777, and indeed “was proud of the fact that he had identified his nephew for the North

Carolina authorities,” J.A. 2814. And Nancy “wanted to brag about the accomplishments

of the family. She did not want to address the issues with regard to her grandson and how

he got there.” J.A. 2816. In short, Mahdi’s family put up road block after road block in

preventing trial counsel’s efforts to gather potential witnesses—family or otherwise—to

testify on Mahdi’s behalf.

95 To that end, trial counsel did all that could be expected of them given what they had

and undoubtedly conducted a constitutionally sufficient investigation. See Byram v.

Ozmint,

(4th Cir. 2003) (“[C]ounsel is only required to make a

reasonable”—not exhaustive—“investigation for possible mitigating evidence.”

(emphasis added)); McWee v. Weldon,

(4th Cir. 2002) (“[T]he

reasonableness of an investigation, or a decision by counsel that forecloses the need for an

investigation, must be considered in light of the scarcity of counsel’s time and resources in

preparing for a sentencing hearing and the reality that counsel must concentrate his efforts

on the strongest arguments in favor of mitigation.”). To be sure, one could always say that

defense counsel could have done more through the lens of hindsight. And that PCR counsel

were able to locate non-family lay witnesses willing to testify years later does not mean,

ipso facto, that trial counsel’s investigation was deficient. “[T]here comes a point at which

evidence . . . can reasonably be expected to be only cumulative, and the search for it

distractive from more important duties.” Bobby v. Van Hook,

(2009) (per

curiam); Wilson v. Greene,

(4th Cir. 1998) (holding that counsel’s

performance is not deficient in declining “to spend valuable time pursuing what appeared

to be an unfruitful line of investigation” (quoting Bunch v. Thompson,

(4th Cir. 1991))). That trial counsel made that determination when they did in light of their

fruitless mitigation investigation efforts does not render their performance deficient. “This

is not a case in which the defendant’s attorneys failed to act while potentially powerful

mitigating evidence stared them in the face or would have been apparent from documents

any reasonable attorney would have obtained.” Bobby,

. To the contrary,

96 every avenue trial counsel explored was met with resistance and dead ends. And it was not

unreasonable or against prevailing professional norms for counsel to rely on their qualified

mitigation team to uncover any and all possible avenues for beneficial evidence, which

they did. See Rompilla v. Beard,

(2005) (“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.”); Sigmon, 956

F.3d at 200–01 (holding that trial counsel’s investigation was reasonable when they used a

mitigation expert and team); Rhode v. Hall,

(11th Cir. 2009) (per

curiam) (holding it is not unreasonable for counsel to rely on a qualified mitigation

investigator or other experts).

We also agree with the district court that the PCR court’s determination that “much,

if not all, of the evidence Mahdi offered at PCR regarding his family and social history”

through non-family lay witnesses “was cumulative to the evidence presented in Mahdi’s

capital sentencing proceeding” through Hammock’s testimony and exhibits, J.A. 7560, was

not “sufficiently against the weight of the evidence,” Williams,

. During the

PCR evidentiary hearing, Mahdi’s teachers testified or submitted affidavits about the

significant gaps in his education, his behavioral outbursts, and Shareef’s failures as a father,

though they all acknowledged they knew nothing about Mahdi’s home life. What’s more,

they also presented negative testimony that hurt Mahdi’s mitigation efforts. Specifically,

they testified about Mahdi’s anger and behavioral issues, including the fact that he used to

“draw pictures of people hanging, the nooses and things like that.” J.A. 2345.

97 Smith and Douglas Pond provided testimony concerning Shareef’s troubled

behavior in the community, specifically recounting the incident at the local Whites-only

pool. Sheriff Woodley, who testified and was cross-examined by trial counsel during the

sentencing hearing, submitted an affidavit about Shareef’s violent behavior towards his

mother and Vera as well as his lack of respect for authority. And Sharon Pond testified

about Shareef’s mental health issues, though she conceded she had never met Mahdi before

and that medical professionals ultimately did not find any health or major mental illness in

Shareef.

Trial counsel recognized the importance of Mahdi’s family history and background,

which explains why Hammock alluded to all of it in her testimony during the sentencing

hearing. Specifically, she testified about Mahdi’s “rather chaotic” childhood, J.A. 1597,

including the extensive gaps in his education. She also testified at length concerning

Shareef’s violent and outlandish behavior towards Nancy and Vera; his reputation for being

“at odds with people in the community, with his own family and with law enforcement,”

J.A. 1610; and his “inability . . . to parent appropriately and correctly,” J.A. 1597. Trial

counsel could hardly be said to have performed deficiently by presenting evidence that

“would have added nothing of value,” Bobby,

, and was cumulative of what

had already been submitted to the trial court. See Morva v. Zook,

(4th

Cir. 2016) (“That the mitigating evidence [the petitioner] insists should have been

presented at trial is merely cumulative to the evidence actually heard . . . further undercuts

[his] claim for deficient performance.”). And the PCR court’s determination to that effect

was certainly not “an error that lies beyond any possibility for fairminded disagreement.”

98 Mays,

. Therefore, we affirm the district court’s holding that the PCR

court reasonably applied the first prong of the Strickland analysis to the Mitigation

Evidence Claim.

But even if we were to reach the prejudice prong of the Strickland analysis, we

would reach the same conclusion as the district court. Mahdi claims that “[w]ithout the

mitigating evidence [presented during the PCR evidentiary hearing], the [trial court] had

no context to understand [his] criminal history, presented by the State as aggravation, as a

product of his long-term abuse and suffering.” Opening Br. 64. Thus, in his view, the trial

court “heard almost nothing that would humanize [Mahdi]” during the sentencing phase.

at 64 (quoting Porter v. McCollum,

(per curiam) (2009)). Had it

possessed the “full picture of Mahdi’s life,” Opening Br. 64, he argues, “there is a

reasonable probability that [the judge] would have struck a different balance” and

sentenced him to life without parole

(quoting, Wiggins v. Smith,

(2003)). The State counters that Mahdi cannot show prejudice because the evidence

adduced during the PCR evidentiary hearing would not have outweighed the overwhelming

aggravating evidence before the trial court during sentencing.

We agree with the State. The PCR court’s determination that Mahdi suffered no

prejudice because the additional testimony would have added nothing of value was not so

fundamentally flawed as to warrant habeas relief. “The question of whether counsel’s

deficiency prejudiced the defense centers on whether there is a reasonable probability that,

absent counsel’s errors, the sentencer would have concluded that the balance of aggravating

and mitigating circumstances did not warrant death.” Sigmon,

(cleaned

99 up). And here, “when considered against the sheer magnitude of the aggravating evidence

against” Mahdi, as discussed at length earlier, “it is difficult to see the allegedly

unreasonable omission of this mitigation evidence [from the non-family lay witnesses] as

prejudicial.” Plath v. Moore,

(4th Cir. 1997). “[I]n weighing the omitted

evidence against that actually used to convict and sentence [Mahdi], the mitigating

evidence seems insufficient to shift the balance in [his] favor.” Id.; accord Wong v.

Belmontes, 558 US. 15, 20 (2009) (per curiam) (observing that to establish prejudice, the

petitioner must show “a reasonable probability” that had counsel presented the evidence

the court “would have returned with a different sentence”.

It is also worth noting that each witness who testified during the PCR hearing would

have likely introduced evidence that would have undermined Mahdi’s mitigation strategy

at sentencing. This is exemplified by the testimony from Mahdi’s mental health experts,

who opined that he malingered, expressed suicidality for purposes of manipulation, and

had antisocial personality disorder. See Satcher v. Pruett,

(4th Cir. 1997)

(finding counsel were not ineffective for declining to put on “potentially damaging

psychiatric evidence” that the defendant had antisocial personality disorder).

Unsurprisingly, this testimony was also consistent with the opinions from Dr. Martin and

Dr. McKee, who reached the same conclusion.

Therefore, even if we were to reach this second prong of the Strickland analysis, we

would still affirm the district court’s holding.

4. The Judicial Sentencing Claim

Mahdi’s third IAC claim contends the district court erred in rejecting his argument

100 that trial counsel were ineffective for failing to object to the trial court’s sentencing in light

of the Supreme Court’s decisions in Apprendi, 40 Ring, and Blakely. 41 In response, the State

argues that Mahdi has procedurally defaulted the Judicial Sentencing Claim. See Resp. Br.

45–46 & n.21–22 (raising the procedural bar argument and maintaining that it “did not

abandon the procedural bar below and do[es] not do so here”). Mahdi suggests that if this

Court determines the Judicial Sentencing Claim to be procedurally barred, we should

remand for the district court to conduct an evidentiary hearing to determine whether he can

clear the necessary hurdles to merit review. However, he cites no controlling precedent to

support this approach. And he failed to provide any argument in his reply brief addressing

the State’s invocation of the procedural bar. 42 See Alvarez v. Lynch,

(4th

Cir. 2016) (“[A]n outright failure to join in the adversarial process would ordinarily result

in waiver.”); Bonte v. U.S. Bank, N.A.,

(7th Cir. 2010) (“Failure to

respond to an argument results in waiver.”).

As previously noted, Mahdi did not appeal the PCR court’s rejection of this claim

in his first state PCR proceeding. And the Supreme Court of South Carolina dismissed the

Judicial Sentencing Claim on procedural grounds during the second proceeding. See S.C.

40 Apprendi v. New Jersey,

(2000). 41 Blakely v. Washington,

(2004). 42 The district court reached the merits of this claim without addressing whether it was procedurally barred. See Mahdi,

, at *43 n.39. Because we are “entitled to affirm on any ground appearing in the record, including theories not relied upon or rejected by the district court,” Scott,

, and Mahdi offered no response to this argument in his reply brief, see Alvarez, 828 F.3d at 295 (reiterating that failure to engage in the adversarial process by responding to an argument ordinarily results in waiver), we will reach this issue here. 101 Code Ann. §§ 17-27-45, -90; S.C. App. Ct. R. 203(d)(3), 243. As such, the claim is

procedurally barred. See Longworth, 377 F.3d at 447. And because Mahdi failed to provide

any argument in his reply brief “demonstrat[ing] cause for the default and actual

prejudice,” Sigmon, 956 F.3d at 198 (quoting Coleman, 501 U.S. at 750), we affirm the

district court’s denial of Mahdi’s Judicial Sentencing Claim.

But even if we were to reach the merits of Mahdi’s argument, we discern no error

in the district court’s rejection of it. At bottom, Mahdi maintains that the trial court erred

in following the mandates of South Carolina Code § 16-3-20 rather than expressly

determining whether he knowingly and voluntarily waived his Apprendi rights as set out

in Ring and Blakely. Mahdi suggests the trial court improperly “imposed a sentence greater

than the maximum [it] could have imposed under state law,” Opening Br. 73 (quoting

Blakely, 542 U.S. at 303), 43 based on its consideration of “additional” evidence and facts

in aggravation, J.A. 1661, beyond those contained in Mahdi’s admission during his guilty

plea. We disagree.

As for his claim under Ring, we find no error in the PCR court’s conclusion that, at

the time of Mahdi’s sentencing, the Supreme Court of South Carolina had already decided

three cases expressly finding the death penalty statute constitutional because Ring is not

implicated when a capital defendant pleads guilty. See State v. Crisp,

, 432–

33 (S.C. 2005); State v. Wood,

(S.C. 2004) Downs, 604 S.E.2d at 380.

Indeed, we reached the same conclusion years after Mahdi’s conviction. See Lewis v.

43 The death penalty is never required under South Carolina law, even with a finding of an aggravating circumstance.

(B), (C). 102 Wheeler,

(4th Cir. 2010) (“[N]either Apprendi nor Ring holds 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.”). Thus, the PCR court’s determination that trial counsel could not

have been deficient for failing to raise a meritless claim was not “so lacking in justification

that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

Similarly, there is no reason to conclude that Blakely would somehow render

Mahdi’s sentence unconstitutional. 44 In that decision, the Supreme Court stated that, under

Apprendi, a judge may impose any sentence authorized “on the basis of the facts . . .

admitted by the defendant.” Blakely, 542 U.S. at 303. And pursuant to

(B), the death penalty may only be imposed upon a murder conviction when an

aggravating circumstance is found. Here, Mahdi admitted to the two charged aggravating

circumstances in his guilty plea: killing Captain Myers while in the commission of

burglary and while in the commission of larceny with use of a deadly weapon. J.A. 1217;

(C)(a)(1)(d), (f). So no Blakely violation occurred in sentencing

Mahdi to death.

And while the trial court did not need Mahdi’s consent to judicial factfinding to

44 Mahdi did not directly present this issue in the state courts. Rather, he consistently framed the Judicial Sentencing Claim as being unconstitutional solely under Ring. Thus, the PCR court did not consider the arguments under Blakely he now raises in his § 2254 petition. Nevertheless, because any claim under Blakely would fail on the merits, we will not address whether this additional aspect of the Judicial Sentencing Claim is independently procedurally barred. 103 sentence him to death, Mahdi nevertheless gave it. Blakely made clear that “[w]hen a

defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as

the defendant . . . consents to judicial factfinding.” 542 U.S. at 310. As the record makes

abundantly clear, Mahdi did just that.

Before pleading guilty, trial counsel informed Mahdi that during sentencing “the

State [would] have to put up [its] case and information and, of course, he[] [would] be

allowed to put up information. The question [was] whether he [would] do that in front of a

jury or whether he [would] do that in front of a judge.” J.A. 1179. In response, the trial

court made clear that if Mahdi “plead[ed] guilty, the sentencing proceeding [would] be

conducted before the judge.” J.A. 1183.

During the plea hearing, the trial court went to great lengths to ensure Mahdi

understood that if it were to accept his guilty plea, “the jury [would] have no role in [his]

sentencing and the decision as to what sentence [he would] receive [would] be left solely

up to [the trial court].” J.A. 1198. Acknowledging that he understood all of this

information, Mahdi affirmatively gave up his right to a jury trial, see J.A. 1198 (“I’ve given

up all of my rights to a 12 party jury.” (emphasis added)), and agreed to judicial sentencing.

Mahdi’s consent to judicial factfinding during the plea hearing is also consistent

with his trial attorneys’ testimony during the PCR hearing. As the PCR court observed,

trial counsel testified that “Mahdi decided to plead guilty because [he] believed he had a

better chance of receiving a life sentence from [the trial court] than from the jury he had

selected.” J.A. 7636. The PCR court found this testimony credible, and Mahdi has

presented no evidence suggesting this determination constitutes error, much less one that

104 is “stark and clear.” Elmore, 661 F.3d at 849. What’s more, “Mahdi offered no testimony

to contradict trial counsel’s testimony on these issues.” J.A. 7636. Thus, the PCR court

reasonably determined that “Mahdi wanted to be sentenced by [the trial court], not the jury

he had initially selected and [e]mpaneled.” J.A. 7636. And Mahdi has failed to present

“clear and convincing evidence,” Bennett, 842 F.3d at 322, that this determination was

“sufficiently against the weight of the evidence,” Williams, 914 F.3d at 312.

In short, the record leaves no doubt that Mahdi admitted to two aggravating

circumstances in his guilty plea and knowingly and voluntarily waived any challenge to

judicial factfinding by the trial court and that challenge would have been futile. Thus, the

PCR court’s determination was neither “diametrically different, opposite in character or

nature, or mutually opposed” to Ring or to Blakely, Vick, 233 F.3d at 216, nor “so lacking

in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement,” Harrington, 562 U.S. at 103. For

these reasons, we affirm the district court’s denial of the Judicial Sentencing Claim.

5. The Guilty Plea Claim

Turning to Mahdi’s final IAC claim, he maintains that trial counsel were ineffective

by “actively advising [him] that his guilty plea would be considered [a] mitigating [factor]

at his judge sentencing.” Opening Br. 78. In response, the State asserts that Mahdi

procedurally defaulted this claim. 45 We agree with the State.

45 As with the Jury Sentencing Claim, the district court expressly declined to address whether the Guilty Plea Claim was procedurally defaulted. See Mahdi,

, at *44 n.42. Like the Judicial Sentencing Claim, however, the State raised the procedural (Continued) 105 Mahdi did not raise the Guilty Plea Claim during his first state PCR proceeding.

And the South Carolina Supreme Court rejected his efforts to do so during the second state-

court PCR proceeding on procedural grounds. Thus, Mahdi has procedurally defaulted this

claim. See Breard, 134 F.3d at 619 (reiterating these grounds constitute a procedural bar).

And because he made no effort to “demonstrate cause for the default and actual prejudice,”

Sigmon, 956 F.3d at 198 (quoting Coleman, 501 U.S. at 750), in his reply brief, we affirm

the district court’s denial of Mahdi’s Guilty Plea Claim. 46 See Alvarez, 828 F.3d at 295

(recognizing that failure to respond to an argument in briefing ordinarily results in waiver).

III.

For the foregoing reasons, we affirm the district court’s judgment in its entirety.

AFFIRMED

bar in its brief before this Court and Mahdi offered no response to this argument in his reply brief. As we are entitled to do, Scott, 328 F.3d at 137, we elect to reach this issue here. 46 Even if we were to reach the merits, we would still affirm for the reasons stated by the district court. See Mahdi,

, at *45–47. To that end, we emphasize that, contrary to Mahdi’s efforts to contort the record, the trial court expressly considered his guilty plea as a “nonstatutory mitigating circumstance.” J.A. 1670. It merely gave the argument no “significant weight.” J.A. 1670; see also Lockett, 438 U.S. at 605 (1978) (noting the importance of “an individualized decision” in capital cases). And, of course, there is a clear distinction between “no significant weight” and “no weight.” Thus, trial counsel’s advice was correct, meaning their performance was not deficient. 106 GREGORY, Chief Judge, dissenting:

Mikal Mahdi does not claim that he is innocent. Rather, Mahdi asserts his humanity: his

capacity for redemption. This appeal then raises questions, not of Mahdi’s guilt, but of whether

it is too late to remedy trial counsel’s failure to show the many ways in which Mahdi was a

product of a traumatic and tragic upbringing.

In some ways, it is. Here, as in countless other cases, AEDPA’s often-unforgiving

exhaustion requirement,

(b)(1), works with its merits review,

(d), to pose an insurmountable barrier for most of Mahdi’s claims. In my view, much

like the majority’s, the district court did not err in granting summary judgment on Mahdi’s claims

that his trial counsel were ineffective for (1) failing to challenge the constitutionality of

; (2) failing to advise Mahdi of the advantages of jury sentencing; or (3)

incorrectly advising Mahdi that the district court considered his guilty plea as mitigation.1 Nor

1 Although I agree with these conclusions, I do not join in all of the majority’s rationale. For example, I disagree with the majority’s suggestion that an attorney is necessarily effective when she declines to raise a federal constitutional claim that is thought meritless by a state supreme court. See Maj. Op. at 52. The United States Supreme Court enjoys the final say when it comes to interpreting the United States Constitution. See Arkansas v. Sullivan,

(2001) (holding that a state supreme court may not interpret the United States Constitution to provide different protection than the Supreme Court’s federal constitutional precedents provide). I am not at all convinced that an attorney’s failure to preserve an issue that, while foreclosed by a state court, remains an open question of federal constitutional law will in all cases reflect a reasoned, strategic decision. But the focus of this opinion is highlighting how the district court erred in denying Mahdi a full opportunity to seek federal habeas relief. 107 did the district court err in holding that Mahdi procedurally defaulted many of his failure-to-

investigate “subclaims.”2

But, unlike the majority, I believe the district court unquestionably applied the

wrong legal standard to Mahdi’s request for additional funding to hire an expert in race-

based trauma. Without a valid ruling on Mahdi’s request for supplemental funding, it is

premature to determine whether Dr. Hill’s testimony would allow Mahdi to present a

“fundamentally altered” ineffective assistance of counsel claim based on trial counsel’s

failure to present evidence of Mahdi’s race-based trauma. I would therefore vacate the

district court’s grant of summary judgment on this subclaim. Finally, I would vacate the

district court’s grant of summary judgment on Mahdi’s abuse subclaim and remand for an

evidentiary hearing. New evidence of the physical abuse Mahdi suffered as a child

fundamentally alters his failure-to-investigate claim, and genuine disputes of material fact

preclude summary judgment on whether Martinez excuses the procedural default that

resulted from Mahdi’s failure to raise this subclaim earlier.

Because I differ from the majority in these respects, I respectfully dissent.

I.

The district court first erred when it denied Mahdi additional funding based on the

wrong legal standard. The CJA creates various entitlements for capital defendants who are

financially unable to mount their own defense.

(a)(1). Relevant here,

2 Mahdi raises four theories of ineffective assistance of counsel. He then divides one of those theories, trial counsel’s failure to investigate and present mitigating evidence, into sub-categories, labeling each a “subclaim.” 108 district courts may authorize defense counsel to obtain “investigative, expert, or other

services [that] are reasonably necessary for the representation of the defendant.”

(f). In my view, the district court understood “reasonably necessary” to require

more than precedent allows. See Ayestas v. Davis,

, 1092–94 (2018).

We typically defer to district courts’ funding decisions, only finding error when

faced with an abuse of discretion.

. But when a court applies the wrong legal

standard, we’re called to withhold that deference, Koon v. United States,

(1996)—a call that only rings clearer when the error impedes a defendant’s ability to

challenge the most permanent sentence a state may impose. Heeding that charge, I would

vacate the district court’s denial of Mahdi’s funding request and remand for the district

court to apply the correct legal standard.

A.

Shortly after Mahdi petitioned the district court for federal habeas relief, the court

appointed counsel and granted him $34,500 to retain a mitigation investigator and a social

historian. 3 Mahdi filed an ex parte motion for additional funding to present “recently

3 Mahdi later realized he did not require the assistance of a social historian; he did not use any portion of the $12,500 allocated for that expert. There’s no question that imposing the death penalty with any measure of due process carries a high price tag. Federal courts must award capital defendants funding for all reasonably necessary services covered by

(a)(2). As the Supreme Court has admonished death is different. See Furman v. Georgia,

(1972) (Stewart, J., concurring) (“[t]he penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice.”); see also Gregg v. Georgia,

(1976) (recognizing that “there is no question that death as a punishment is unique in its severity and irrevocability.”).

109 discovered” evidence that would explain the severe impact of his past race-based trauma.

J.A. 886; J.A. 29–33 (describing the recently discovered evidence that Dr. Hill would

examine in-depth, distinguishing the recently discovered evidence from existing evidence,

and explaining its impact on “address[ing] the multiple aspects of trauma that Mr. Mahdi

experienced throughout his life.”); see J.A. 31 (“Dr. Hill will be able to examine the impact

of these traumatic events and stress factors on Mr. Mahdi in the context of his unique

ancestry and extrinsic and intrinsic racial identity.”). He argued that an expert’s assessment

of his unique and severe race-based trauma would produce new evidence that was

“compelling and warrant[ed] presentation as a Martinez claim.” J.A. 11. He then requested

$25,000 to retain Dr. Hope Hill, 4 a professor and clinical psychologist, to develop and

present this recently discovered evidence.

At the court’s request, Mahdi then provided (1) a brief outline of the “recently

discovered evidence” related to Mahdi’s race-based trauma; (2) a brief summary of how

this information impacted the claims Mahdi sought to raise in the Amended Petition; and

(3) a detailed description of the work to be performed by Dr. Hill to substantiate the

estimated 90 hours of requested funding. J.A. 29–36. Mahdi argued that “the impact of

the extrinsic trauma that [he had] experienced throughout his childhood [could] only be

understood by looking at the intrinsic trauma that [he] suffered in relation to his racial

4 Dr. Hill specializes in child development and social policy. J.A. 13. She has conducted extensive research on the development of at-risk youth and the effects of childhood exposure to violence, with a particular focus on Black youth. J.A. 21–24. Based on this expertise, Dr. Hill has qualified as an expert witness in courts across New York, Washington, D.C., Maryland, Pennsylvania, and North Carolina. J.A. 14–16.

110 identity.” J.A. 32. Dr. Hill could clinically detail the effects of that trauma, “systemically

evaluat[ing] how Mr. Mahdi’s background, racial identity, and the trauma that he

experienced emboldened his ‘survivalist’ mentality.” 5

The district court nonetheless denied Mahdi’s request. At the time, the court was

bound by our decision in Wright v. Angelone,

(4th Cir. 1998). In Wright,

we held that § 3599(f)’s “reasonably necessary” standard only allowed courts to provide

funds for “investigative, expert, or other services” when “a substantial question exists over

an issue requiring expert testimony for its resolution and the defendant’s position cannot

be fully developed without professional assistance.”

(quoting Williams v.

Martin,

(4th Cir. 1980)) (emphasis added). Understanding Wright—

and, by extension, § 3599(f)—to impose a strict necessity requirement, the district court

held that Mahdi failed to demonstrate that his Martinez claim “could not be fully

developed” through the mitigation investigator and the social historian for which he’d

5 It is not clear what the majority means when it maintains that Mahdi failed to either “identify any themes that he intended to pursue through this supplemental funding request” or “forecast what Dr. Hill’s psychological report would contribute beyond the information his previously approved $34,500 in funding for a mitigation investigator and social historian had already yielded.” Maj. Op. 67, 66–68. Assuming, as I must, that these statements take on something other than their literal meaning, I read the majority as requiring greater specificity than what Mahdi’s supplemental funding request provided. But the problems with imposing such a demanding specificity requirement seem clear. First, the requirement finds no footing in the text of § 3599. Second, it runs counter to § 3599’s objectives. Section 3599 provides funding for services that are reasonably needed, but not yet available, to a petitioner. If Mahdi had access to the full scope of Dr. Hill’s clinical findings and assessments, he would not need additional funding to secure her expertise. 111 already secured funding. J.A. 40. In other words, the district court denied Mahdi’s request

because he had not shown it was impossible to develop his claim without Dr. Hill.

Eight months later, the Supreme Court unanimously rejected a similarly narrow

construction of “reasonably necessary.” Ayestas, 138 S. Ct. at 1093–95.

B.

Ayestas involved a challenge to the Fifth Circuit’s two-step approach to evaluating

federal habeas petitioners’ funding requests. In the Fifth Circuit’s view, an applicant for

§ 3599(f) funding could not show that investigative services were “reasonably necessary”

unless the applicant could (1) show that he had a “substantial need” for the services; and

(2) supplement his funding request with a “viable constitutional claim that [was] not

procedurally barred.” 6 Ayestas,

(citing Ayestas v. Stephens,

, 895–96 (2016)). But § 3599(f), the Court held, does not impose these burdens.

Ayestas’s analysis begins and ends with the text of the statute: specifically, the

phrase “reasonably necessary.” “Necessary,” Ayestas acknowledges, has two possible

meanings: one strict and one ordinary. Id. at 1093. “In the strictest sense of the term,

something is ‘necessary,’ only if it is ‘essential.’” Id. (citing Webster’s Third New Int’l

Dictionary 1510 (1993) (something is necessary if it “must be by reason of the nature of

things,” if it “cannot be otherwise by reason of inherent qualities”); 10 Oxford English

6 The majority makes much of the fact that the standard once used by the Fifth Circuit differs from the one that Wright imposed. See Maj. Op. 69–70. The question of course is not whether Wright’s standard is identical to the one Ayestas, 138 S. Ct. at 1093– 95 rejected, but whether it is consistent with the standard Ayestas, 138 S. Ct. at 1093–94 set forth. In my view, it is not. 112 Dictionary 275–276 (2d ed. 1989) (OED) (defining the adjective “necessary” to mean

“essential”). The strict understanding of “necessary” fared poorly in the context of

§ 3599(f). Id. As Ayestas explains, it makes “little sense to refer to something as

reasonably essential.” Id.

Instead, Ayestas defines “necessary” in its ordinary sense—a term “used more

loosely to refer to something that is merely important or strongly desired.” Id. Understood

this way, § 3599(f) does not require a petitioner to “prove that he will be able to win relief

if given the services he seeks.” Id. at 1094. Rather, the “statutory phrase calls for . . . a

determination by the district court in the exercise of its discretion, as to whether a

reasonable attorney would regard the [requested] services as sufficiently important.” Id. at

1093 (emphasis added). The Fifth Circuit erred by requiring more. And because the

district court understood Wright to impose a similar burden, it did too.

By its own explanation, the district court denied Mr. Mahdi’s funding request

because he failed to prove that he could not develop his Martinez/Trevino claim without

the assistance of Dr. Hill. J.A. 40. Requiring that Mahdi prove that it was impossible to

develop his claim without expert assistance was tantamount to imposing an absolute need

requirement—a burden akin to, if not greater than, the “substantial need” requirement that

Ayestas rejected. 138 S. Ct. at 1093–94.

The State contends that the fatal flaw in the Fifth Circuit’s two-part test was not the

“substantial need” requirement, but the requirement that a petitioner present a viable

constitutional claim that was not procedurally barred. Response Br. at 26. This argument

doesn’t even appear to find favor with the majority. See Maj. Op. at 64–70. To be sure,

113 Ayestas rejected the Fifth Circuit’s “viable constitutional claim” requirement. Ayestas, 138

S. Ct. at 1093–94. This requirement permitted district courts to deny a petitioner’s request

for funding if her underlying claim was procedurally defaulted. But, as Ayestas explains,

the rule did not account for Martinez v. Ryan,

(2012) or Trevino v. Thaler,

, 416–17 (2013)—decisions that permit some federal habeas petitioners to

present a substantial but procedurally defaulted ineffective-assistance-of-counsel claim by

showing that state postconviction counsel was ineffective for failing to raise it. Sometimes,

funding may be reasonably necessary to overcome that default. Ayestas,

,

1093–94. In those cases, where “funding stands a credible chance” of allowing petitioners

to make that showing, “it may be error for a district court to refuse [it].”

.

But the egregiousness of the error at step two does not erase the error at step one.

Ayestas explains in no uncertain terms that the difference between “reasonably necessary”

and “substantial need” is a “problem”—a problem that was exacerbated by the “viable

constitutional claim” requirement, but a problem no less.

. Nothing in

Ayestas suggests that a “substantial need” requirement, standing alone, is consistent with

§ 3599(f). Even the Fifth Circuit understands Ayestas to prohibit both parts of its former

two-part test. See, e.g., Nelson v. Davis,

, 666 (5th Cir. 2020) (“In Ayestas,

the Supreme Court determined that this circuit’s requirement that petitioners demonstrate

a ‘substantial need’ . . . was impermissibly more demanding than the ‘reasonably

necessary’ standard established in [§ 3599(f)].”); Crutsinger v. Davis,

(5th Cir. 2019) (“[Ayestas] held that the Fifth Circuit’s requirement that a movant show a

‘substantial need’ to demonstrate that funds were ‘reasonably necessary’ was not supported

114 by the text of § 3599”); Jones v. Davis,

(5th Cir. 2019) (“[Ayestas] held

that the ‘substantial need’ requirement was more demanding than [§ 3599’s] requirement

that the services sought be ‘reasonably necessary’ to a defendant’s post-conviction

challenge.”). I, too, take Ayestas to mean what it says.

C.

The district court did not cure its pre-Ayestas error when resolving Mahdi’s post-

Ayestas Rule 59 motion. Properly applied, § 3599(f) tasked the court with asking “whether

a reasonable attorney would regard the [requested] services as sufficiently important.”

Ayestas,

. Three principal considerations drive this inquiry: (1) “the

potential merit of the claims that the applicant wants to pursue”; (2) “the likelihood that

the services will generate useful and admissible evidence,” and (3) “the prospect that the

applicant will be able to clear any procedural hurdles along the way.”

.

The district court’s Rule 59 order acknowledges Ayestas in form only, reciting the

relevant standard but not applying it. See J.A. 909–11. The order lays bare the district

court’s belief that Ayestas merely echoed the standard set forth in the district court’s

original order:

In denying Mahdi’s request, the court recited the applicable standard under § 3599 and focused on whether the requested services were reasonably necessary to adequately represent Mahdi and develop his anticipated ineffective assistance of counsel claim.[] Ultimately, the court found that counsel had not shown that the requested psychologist’s services were reasonably necessary in addition to the services of the mitigation investigator and social historian the court had already funded.

J.A. 911 (internal citations omitted).

115 But, as discussed, it did not. The district court’s original order denying funding

overstated § 3599’s “reasonably necessary” requirement and failed to discuss the three

considerations that, as Ayestas explains, drive the § 3599 analysis. The Rule 59 order is

similarly silent on how the Ayestas factors apply to Mahdi’s request. See J.A. 909–12.

At most, the district court’s Rule 59 order impliedly considered the likelihood that

the services Mahdi requested would generate useful and admissible evidence. See J.A.

912. But even here, the analysis fell short because it misunderstood the services Mahdi

sought. Noting that Mahdi’s mitigation investigator “had already gathered all of the

pertinent factual information” and that Mahdi’s counsel “had already formed reasoned

arguments as to why that information was critical to Mahdi’s mitigation presentation,” the

district court found itself unable to see what “additional value” Dr. Hill could provide. J.A.

912. The majority shares this view, insisting that the evidence that Dr. Hill would have

provided was “already developed and presented to the PCR court.” Maj. Op. at 65–66.

This reasoning either ignores or misapprehends the expertise that mental health clinicians

bring to the table. They do not, like mitigation investigators, detail the facts of a person’s

life in a historic sense. Compare J.A. 32 (explaining that Dr. Hill could discuss how the

impact of Mahdi’s traumatic childhood was exacerbated by his complex racial identity and

his father’s militant racial extremism), with J.A. 377 (detailing Dworkin’s skills and

responsibilities as a mitigation investigator). And their opinions are far from the common-

sense intuitions that may guide an attorney’s arguments absent a mental health expert’s

guidance. See J.A. 13–21 (detailing Dr. Hill’s clinical training and experience); see also

ABA Guidelines for the Appointment and Performance of Defense Counsel in Death

116 Penalty Cases 4.1, Commentary (rev. ed. 2003) (“ABA Guidelines”), reprinted in

, 956–57 (2003) (“Counsel’s own observations of the client’s mental

status, while necessary,[] can hardly be expected to be sufficient to detect the array of

conditions [parenthetical omitted] that could be of critical importance.”).

For the sake of illustration, consider the relationship of a physician to a claim that

someone’s physical injury entitles her to economic damages. Lay fact witnesses can detail

physical symptoms, describe limitations, and set forth relevant timelines. Attorneys can

then take that information and argue that it warrants relief for their client. And still, many

factfinders would find the presentation lacking, left only to wonder whether a medical

doctor would agree with the attorney’s view of the injuries; whether there was a

physiological explanation for the claimant’s symptoms; whether the pain she described

aligned with a physician’s understanding of the disability. No one questions the need for

medical experts when assessing the scope of physical injuries. That we find mental health

experts unnecessary when defining the impact of past trauma says little about the need for

that expertise, and much about us.

* * *

The standard that the district court applied—both in its original denial of

supplemental funding and its Rule 59 order—is outdated and asks too much of petitioners

seeking funds under § 3599(f). I would vacate the district court’s denial of Mahdi’s

funding request and remand for the district court to correctly apply Ayestas.

117 II.

I would also vacate the district court’s grant of summary judgment on two of

Mahdi’s failure-to-investigate subclaims: (1) that trial counsel were ineffective for failing

to investigate and present mitigating evidence of Mahdi’s race-based trauma, and (2) that

trial counsel were ineffective for failing to investigate and present evidence of the

childhood abuse he suffered at the hands of his father. The district court’s error in

adjudicating Mahdi’s funding request precludes full review of his race-based trauma

subclaim. Moreover, the district court erred in holding that Mahdi’s childhood-abuse

subclaim did not present a “substantial” claim of attorney ineffectiveness.

A.

Because the district court applied the wrong legal standard to Mahdi’s request for

funding, it is premature to review his race-based-trauma subclaim. The very reason Mahdi

requested additional funding was to “develop and effectively present” the arguments for

this subclaim. Opening Br. at 50. Mahdi explained that “[c]ounsel [] recently discovered

evidence related to race-based trauma that [Mahdi] experienced during his childhood,” J.A.

11, and that “Dr. Hill [would] be able to examine the impact of these traumatic events and

stress factors on Mr. Mahdi in the context of his unique ancestry and extrinsic and intrinsic

racial identity,” J.A. 31. Mahdi argued that Dr. Hill’s “in-depth examination of [his]

lineage” would stand in stark contrast to the “very generally pieced together family

biographies” that PCR counsel presented in the initial postconviction proceeding. J.A. 29.

Stated differently, Dr. Hill’s testimony might have fundamentally altered Mahdi’s failure-

to-investigate claim.

118 The majority maintains that Dr. Hill’s investigation, as proposed by Mahdi’s “vague

representations”, see Maj. Op. at 70, would add nothing new that the other seven mental

health experts had already evaluated. Specifically, the majority argues that Dr. Cooper-

Lewter “had already conducted an extensive evaluation of Mahdi’s race-based trauma and

family history.” Maj. Op. at 70 (referencing J.A. 2955–65). While it is true that Dr.

Cooper-Lewter examined some of Mahdi’s family socio-history, Dr. Cooper-Lewter did

not conduct an in-depth examination of Madhi’s family lineage of the kind proposed by

Dr. Hill to understand how Mahdi’s inter-generational family trauma impacted him and his

crimes. Compare J.A. 2955–64 (discussing Madhi’s grandparents and parents’ history)

with J.A. 31–33 (proposing that Dr. Hill will investigate Mahdi’s “unique ancestry and

extrinsic and intrinsic racial identity” and how these experiences “emboldened his

‘survivalist mentality.’”). Further, while I agree with the majority that Dr. Cooper-Lewter

examined some of Mahdi’s race-based trauma history, Mahdi identified some key gaps in

Dr. Cooper-Lewter’s investigation that are reasonably necessary to painting a complete

picture of his psychological well-being leading up to this crime. For example, while Dr.

Cooper-Lewter noted that Mahdi’s father was “anti-government,” constantly “raved about

the ‘New World Order’ and ‘white folks coming to kill them[,]’ [and . . .] taught [Mahdi

and his brother] how to shoot guns, fight with knives, and how to fist-fight and box.” J.A.

2978. Mahdi noted Dr. Hill would fill in a gap of detailing how “he struggled with the

inherent contradiction of his father’s black separatist beliefs and his father’s complete and

119 utter inability to provide for Mr. Mahdi’s most basic needs.” J.A. 32. 7 Dr. Hill’s recently

discovered evidence is reasonably necessary in this case because it would have explained

the impact of his race-based trauma and lineage on Mahdi’s psychological well-being, in

context of his traumatic upbringing with his father, who indoctrinated Mahdi to have

separatist, anti-government, and antagonistic views against whites. This is the evidence

that jurors should have been appraised of to get a holistic view of all the stressors that

Mahdi had leading up to his crimes. I disagree that “Mahdi did not present any meaningful

argument . . .” and I disagree with the district court’s incorrect application of the legal

standard. Maj. Op. at 71 (emphasis added).

Had the district court applied the correct legal standard—with the correct

understanding of the requested services—and granted funding to retain Dr. Hill, Mahdi’s

claim would stand on much different footing. Without Dr. Hill’s testimony, Mahdi’s only

additional evidence of race-based trauma is Dworkin’s affidavit. To be sure, this affidavit

details some of the facts underlying Mahdi’s race-based trauma in a way that PCR counsel

7 Dr. Cooper-Lewter’s general descriptions of Mahdi’s family history are distinct from Dr. Hill’s. At best, Dr. Cooper-Lewter stated that: “Shareef would constantly tell Mikal what he did wrong, but would provide him with no solutions. While he lectured on work ethic, he had no job and made no attempt to work. The family lived on public assistance, what his grandmother provided, and ultimately what Mikal could steal. While Shareef would spend hours lecturing Mikal about stealing being wrong, he would then “thank him” and keep the stolen property or funds.” J.A. 2980. Dr. Cooper-Lewter also described Mahdi’s upbringing before committing his first offense, at age 14, as “Mikal described it though, he was basically on his own, stealing to survive and continuing to get the preaching/lectures from Shareef, followed by Shareef keeping the property and thanking him.” J.A. 2981. Thus, while Dr. Cooper-Lewter provided a descriptive history, Dr. Hill, according to Mahdi, would connect his family’s intergenerational history of race- based trauma to his criminal history. 120 did not. See J.A. 367–69, 517 (“While PCR counsel may not have traced Mahdi’s lineage

all the way back to 1648, as Mr. Dworkin did, they did present evidence regarding Mahdi’s

family’s history, racial views, and significant experiences with racism, and the very

segregated nature of their environment.”). But at its core, Dworkin’s affidavit, like the

PCR testimony, reflects only the existence of segregation, racial animus, and self-loathing

in Mahdi’s lineage—not their effects. J.A. 367–69. It strengthens but does not change

“[t]he heart of the claim.” Gray v. Zook,

(4th Cir. 2015); see also

Vandross v. Stirling,

(4th Cir. 2021) (explaining that to assert a new

claim, a petitioner must do more than “merely strengthen[] the evidence presented in the

state PCR hearing”).

In my view, Dr. Hill’s testimony was likely to do what Dworkin’s affidavit cannot.

We don’t know what we don’t know. But Dworkin’s affidavit gives me good reason to

believe that, aided by Dr. Hill’s expertise, Mahdi would have had a compelling argument

that his race-based trauma subclaim was “new,” Wise v. Warden,

(4th

Cir. 1988), and that Martinez excused the procedural default that resulted from Mahdi’s

failure to timely exhaust this claim, see Maj. Op. at 66 (citing Vandross,

(4th Cir. 2021) (noting that one of the requirements for invoking Martinez is that “it is

likely that no state court will hear the prisoner’s claim”)). Because the district court’s

Ayestas error precludes meaningful review, I would vacate the district court’s grant of

summary judgment on the race-based-trauma subclaim and remand for further

proceedings.

121 B.

The district court also erred in holding that Mahdi could not overcome the procedural

default on his subclaim that trial counsel were ineffective for failing to uncover and present

evidence of his childhood abuse. This subclaim is new and presents a substantial claim of

ineffective assistance. The only remaining issue is whether PCR counsel performed

deficiently by failing to raise this claim in the state postconviction proceedings—an issue

that, on this record, should not have been resolved with summary judgment.

1.

To begin, this subclaim is a new one. A federal habeas petitioner presents a new and

unexhausted claim when he submits evidence which (1) “was not presented to the state

court,” and (2) “places his case ‘in a significantly different and stronger evidentiary posture

than it was when the state courts considered it.’” Wise,

. New evidence,

even when favorable, will not always change a claim at its core. Gray,

. But

when a federal habeas petitioner “presented no evidence to the state courts to establish the

existence of fact X, the claim will be fundamentally altered by the new evidence presented

to the district court.” Winston v. Kelly,

(4th Cir. 2010).

The question of whether Mahdi has presented a new claim “is necessarily case and fact

specific.”

at 549 (quoting Morris v. Dretke,

(5th Cir. 2005)). Here,

Mahdi’s first cousin, Nate Burwell, IV, recently revealed “substantial insights into the family

dynamics,” recalling “Mikal and [his brother] being beaten by their father as children.” J.A. 317.

Years later, Nate can “hear them screaming still.”

122 PCR counsel did not interview Nate or present any evidence that Mahdi suffered

severe physical abuse as a child at the hands of his father, Shareef. In fact, all evidence was

to the contrary. See, e.g., J.A. 2240 (“[Shareef] was always doting on his sons and always

very, very affectionate with them.”), 2243 (“[Shareef] couldn’t institute discipline. There

was no discipline and he was real soft with his discipline . . . he was not heavy-handed at

all.”), 2541–42 (Q: Isn’t it true that there was no evidence in this case that Mr. Mahdi was

physically abused by his father? A: . . . In the medical reports there was [an] incident where

he fell off his bike and hurt his leg and another time his arm, but as far as physical violence

from his father, no.”). The only evidence of Shareef’s physical abusiveness related to Vera

and Nancy. J.A. 2285–86 (“[Vera] told me Shareef raped her on her wedding night.”), 2298

(“[Vera] was covered in bruises from head to toe and she said Shareef beat her up. She was

trying to see the children and he beat her up.”), 2403 (“[Mahdi] then saw his father kidnap

and beat his mother and he saw his father also beat his own mother.”).

Trial counsel also failed to interview Nate or present any evidence of the extreme

physical abuse Mahdi suffered as a child. Looking only to the picture of Shareef that trial

counsel painted, a factfinder would believe that Shareef was specifically not physically

abusive toward his children. Given that Mahdi “presented no evidence” on this issue in both

the PCR and trial courts, I see no way to view this subclaim as anything but new. See

Winston,

.

The majority does not dispute that defense counsel, at both the trial and PCR stage,

painted Shareef as a loving and doting father—affectionate—who particularly favored

Mahdi. Maj. Op. at 29. Rather, it simply considers allegations of severe childhood abuse to

123 be “new bits of evidence” rather than “critical evidence that makes [Mahdi’s] claim both

stronger and significantly different.” Maj. Op. at 89 (quoting Moore v. Stirling,

(4th Cir. 2020)). By doing so, it views the strength of childhood-abuse evidence as

mitigating evidence much differently than the Supreme Court, 8 the South Carolina trial

court, 9 the State’s trial counsel, 10 and the State’s PCR counsel, 11 among others—myself

included.

2.

Notably, a new claim often poses as much of an obstacle for petitioners as it does an

opportunity. In failing to raise and exhaust his abuse-based theory of ineffectiveness, Mahdi

procedurally defaulted it, saddling himself with the task of identifying a basis to excuse that

default. Owens v. Stirling,

, 421–22 (4th Cir. 2020). As onerous as that

burden may be, Martinez v. Ryan paved a way for him to carry it.

(2012).

8 See, e.g., Williams v. Taylor,

(2000) (indicating that the “graphic description” of a “childhood[] filled with abuse and privation . . . . might well [] influence[ a] jury’s appraisal of [a defendant’s] moral culpability”); Penry v. Johnson,

, 796– 803 (2001) (rejecting jury instructions because they failed to provide an adequate vehicle for jurors to consider childhood abuse as mitigation evidence); Eddings v. Oklahoma,

, 114–16 (1982) (noting that the “beatings by a harsh father” were “particularly relevant” as mitigating evidence for young defendants). 9 J.A. 1669–70 (“In reviewing the testimony of Marjorie Hammock, the defense’s clinical social worker expert, there’s no reference to physical or sexual abuse suffered by the defendant.”), 1684 (same). 10 J.A. 1283–84 (emphasizing that Mahdi did not suffer physical abuse), 1631 (“There’s never any evidence of . . . physical abuse”), 1632 (“And, again, what’s not in here? He was never physically abused”), 1695–96 (“In reviewing Ms. Hambrick’s [sic] testimony, what is absent is any reference to physical abuse”), 1696 (“There is absolutely no evidence of [] abuse”). 11 J.A. 2491 (emphasizing that Mahdi did not suffer physical abuse); 2541–42 (same). 124 As the majority notes, Martinez requires petitioners to show that: (1) their underlying

ineffective-assistance-of-trial-counsel claim is “substantial”—that is, it must have “some

merit” under the governing ineffective-assistance-of-counsel standards; (2) they were not

represented or had ineffective counsel during the state PCR proceeding; (3) the state PCR

proceeding was the initial review proceeding; and (4) state law required the prisoner to bring

the claim in the initial-review collateral proceeding. Trevino,

; see also Maj.

Op. at 74. It’s undisputed that Mahdi’s claim satisfies Martinez’s third and fourth elements.

To satisfy the first two elements, Mahdi need only show that there was “some merit” to his

claim that he was prejudiced by constitutionally deficient trial counsel, and that PCR counsel

“performed deficiently, under the first prong of Strickland, by failing to exhaust the

underlying ineffective-assistance-of-trial-counsel claim.” Owens,

.

Our assessment of counsel’s performance under Strickland is “highly deferential.”

. But that deference is not without limits. Stokes v. Stirling,

(4th

Cir. 2021); Williams v. Stirling,

, 313–16 (4th Cir. 2012). The American Bar

Association Guidelines for the Appointment and Performance of Defense Counsel in Death

Penalty Cases indicate “[a] ‘well-defined norm’ . . . ‘that investigations into mitigating

evidence should comprise efforts to discover all reasonably available mitigating evidence.’”

United States v. Runyon,

, 731 (4th Cir. 2020) (quoting Williams,

).

Capital defense counsel are therefore deficient when they “fail[] to investigate and to

present substantial mitigating evidence to the sentencing jury.” Williams,

(2000). To be sure, “strategic choices made after thorough investigation of law and facts

125 relevant to plausible options are virtually unchallengeable.” Wiggins v. Smith,

(2003) (quoting Strickland, 466 U.S. at 690–91). “[A]nd strategic choices made after

less than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.”

But a cursory

investigation does not “automatically justif[y] a tactical decision with respect to sentencing

strategy.”

. Courts must look further, “consider[ing] not only the quantum of

evidence already known to counsel, but also whether the known evidence would lead a

reasonable attorney to investigate further.” Id.; see also

(counsel performed

deficiently by abandoning investigation after discovering that the defendant had alcoholic

parent, spent childhood in foster care, lacked consistent schooling, and suffered from child

hunger); Williams,

(counsel performed deficiently by failing to uncover and

present mitigating evidence at sentencing) (citing 1 ABA Standards for Criminal Justice -

4-4.1, Commentary, pp.4–55 (2d ed. 1980)).

a.

The district court appears to have rejected Mahdi’s Martinez claim based on its

conclusion that the underlying IAC claim did not have even some merit. See J.A. 518. The

district court recognized the significance of childhood abuse as mitigation evidence,

(citing Porter v. McCollum,

(2009)), but nonetheless felt that it could not

fault trial counsel’s failure to uncover it. J.A. 518. Why? Because the “two people who

would have known about the abuse—Shareef and Mahdi—[failed to] disclose[] this

information.”

126 I cannot join in reasoning that requires so little of capital defense counsel. Common

sense should have led trial counsel to suspect that Mahdi and Shareef might deny or

understate past abuse. “One of the things that we know is that abused children–even abused

adults–tend to cling to their abuser.” J.A. 2424; see also ABA Guidelines 10.7, Commentary

(“Obtaining [sensitive] information typically requires overcoming considerable barriers such

as shame, denial, and repression, as well as other mental emotional impairments from which

the client may suffer.”). And those who have perpetrated abuse are likely to deny it for

different, but equally obvious, reasons. Let us not forget that someone once accused Shareef

of physical abuse—he then tied her to a tree and whipped her legs with the buckle end of a

belt. J.A. 2925.

Even if common sense didn’t lead trial counsel to uncover Mahdi’s abuse, the

evidence should have. Williams, 914 F.3d at 314–16. Trial counsel knew that Shareef was

incredibly violent to vulnerable people in his life. At the sentencing phase, they elicited

testimony from Hammock that Shareef had abused his wife so severely that she left her two

children to escape it. J.A. 1600. Hammock also testified that Shareef had “issues that

prohibited him from being a good father.” J.A. 1608. She explained that Shareef was

“extremely troubled,” J.A. 1598, prone to “outburst,” J.A. 1610, and “not really able to

function well,” J.A. 1600. The postconviction proceedings reveal that trial counsel also

knew that violent outbursts were a hallmark of Shareef’s parenting. J.A. 2819, 2823, 2898.

In contrast, there is no evidence that trial counsels’ decision not to investigate or present

mitigating evidence of childhood abuse was a strategic one. Nor is there any evidence that

127 they believed evidence of childhood abuse would in some way harm Mahdi’s defense or

undermine their theory of the case.

Trial counsel ignored both common sense and unrefuted evidence of Shareef’s

impulsiveness, violence, irrationality, and poor parenting. They ignored the signs that some

of the other adults in Mahdi’s life likely towed the line between discipline and uncontrolled

physical force. See J.A. 2774, 2811. And they ignored the very likely possibility that the

violence Mahdi exhibited as a child reflected the violence he saw and experienced firsthand.

Instead of following these “red flags” to their logical conclusion, Williams,

,

trial counsel decided that Mahdi had not been abused as a child because both the abuser and

the abused denied it. Surely, we do not set the bar so low. See Porter,

(citing

Rompilla v. Beard,

, 381–82 (2005)). A defendant’s “fatalistic or

uncooperative” behavior “does not obviate the need for defense counsel to conduct some sort

of mitigation investigation.” 12

(citing Rompilla, 545 U.S. at 381–82); see also J.A. 2424.

12 The district court cited our decision in DeCastro v. Branker,

(4th Cir. 2011) in support of its contrary view. Mahdi v. Stirling, No. 8:16-3911-TMC,

, at *36 (D.S.C. Sept. 24, 2018). In DeCastro, we reviewed a state PCR court’s decision that trial counsel were not ineffective for failing to investigate and present mitigating evidence that the defendant had withheld pre-trial but disclosed following sentencing.

. Because this claim was “adjudicated on the merits,” we reviewed the state court’s decision through

(d)(1)’s rigorous standard and concluded that it was not unreasonable.

. Even setting aside the factual differences between these two cases, the differing legal standards precludes DeCastro from being a helpful analog. I cannot overstate the difference between our review of an ineffective assistance of counsel claim through the lens of § 2254(d)(1) and our review of the ineffectiveness that undergirds a Martinez claim. When petitioners invoke Martinez to excuse a procedural default, they necessarily present claims of ineffectiveness that have not been presented to state courts nor adjudicated on the merits. Martinez,

. District courts evaluate those claims de novo, unconstrained by § 2254(d)(1). Gray, 806 (Continued) 128 Nor does the peculiar demeanor of a defendant’s family members free capital counsel

from uncovering all reasonably available mitigation evidence. And yet, the record does not

reveal what, if any, efforts trial counsel undertook to find favorable mitigation evidence once

they grew frustrated with those who knew Mahdi best. Indeed, it is difficult to imagine

counsel showing more disrespect for a former client’s family (and most likely source of

mitigation evidence) than trial counsel demonstrated at Mahdi’s state postconviction

hearing. 13 At one point, lead trial counsel testified:

So, we had grandmother who wanted to save the family name. We had [an uncle] who is the dean of men frying fish and he just didn’t care. He was proud of the fact he identified [Mahdi to the police]. We had [an aunt] who still harbored resentment about the fact that [Mahdi’s brother] attempted to burn down her house and you had [another uncle] who thought it was funny that [Mahdi] was threatening to kill himself.

J.A. 2820–21. Later, upon labeling Mahdi’s family “dysfunctional,” lead trial counsel

lamented, “There are many [B]lack families like that.” J.A. 2829.

F.3d at 789. Thus, a holding that a state court did not act unreasonably in rejecting a petitioner’s ineffective-assistance-of-counsel claim should not be understood to mean that counsel was not, in fact, ineffective. 13 See, e.g., J.A. 2814 (“When we arrived in the yard [Nathan] drove up. He was slightly overweight and he was inside a Mazda Miata two-seater . . . . So he drove up in this Miata and he was slightly overweight. He walked in the house and we introduced ourselves to him, but he had an attitude . . . . He is in this car that’s too small. He is the Dean of Men. He walks inside of the house. He has an attitude toward us. This is a guy who’s probably in his late to early 50’s and he’s living with his mama . . . .”), J.A. 2819 (“[Shareef] is preaching black power every day, empowerment of the black man, but he can’t hold a job. He can’t pay his bill.”), J.A. 2822 (“[Nancy] was older and she was confused . . . . Each time you talked to her she would sit down [with] . . . some little pamphlets and booklets about different people in the family and what they had accomplished. It was almost as if she wanted to be absolved of all responsibility and she wanted the world to know that [they were] still good people.”). 129 Counsels’ belief that the adults in Mahdi’s life were “dysfunctional” should have

caused them to seek information from another generation of family members—Mahdi’s

cousins—not to abandon his search altogether. See ABA Guidelines 10.7, Commentary

(“Barring exceptional circumstances, counsel should seek out and interview potential

witnesses, including, but not limited to . . . . members of the client’s immediate and extended

family.”); id. (detailing the importance of “[a] multi-generational investigation” that

“extend[s] as far as possible both vertically and horizontally”). Had they done so, trial

counsel would have easily uncovered the same key witness federal habeas counsel found:

Nathan’s son, Nate Burwell, IV.

Instead of investigating further, trial counsel tapped a social worker and prison

adaptability expert as Mahdi’s only mitigation witnesses. Counsel gave Hammock sole

responsibility for conveying the trauma of Mahdi’s childhood experience—she presented a

sanitized version of Mahdi’s life, concluding that Mahdi had “a rather chaotic and different

kind of childhood.” 14 J.A. 1597. But, as this Court has recently explained, the need to

14 A rather chaotic and different kind of childhood. To be clear: Mahdi was raised by a single parent after his mother—upon suffering severe and sustained physical and sexual abuse—left. Vera left without her two young boys because Shareef threatened to kill them if she tried to take them. As Mahdi was growing up, Shareef withheld access to formal schooling. In the summer after Mahdi’s second-grade year, Shareef used him as bait to see Vera. When Vera arrived, Shareef abused her, threatened to kill her in front of Mahdi, then took her to the woods to assault her. When Shareef’s mother learned of this and confronted him, he bound her to a tree and whipped her legs with a belt. Eventually, Shareef took Mahdi out of public school to “homeschool” him. Shareef’s curriculum involved teaching Mahdi how to shoot guns so that he would be ready when the “white folks” came to get them; teaching Mahdi how to stab people; and indoctrinating Mahdi with an ideology of racial and religious supremacy. This is not a “rather chaotic and different kind of childhood,” see J.A. 1597; it is “profound and chronic trauma that [is] (Continued) 130 present the “profound and chronic trauma” of someone’s childhood is at its highest when the

alternative is to put forth “almost no mitigation presentation at all.” Stokes,

(4th Cir. 2021). In my view, there is at least some merit to Mahdi’s claim that trial

counsel were deficient for cutting their investigation short.

Moreover, this deficiency was likely prejudicial. Trial counsel did not present any

lay witnesses during the sentencing phase of Mahdi’s capital proceedings. And Hammock’s

brief rendition of Mahdi’s family history did very little to humanize him when considered

alongside his serious crimes. See J.A. 1597–1612. As the majority’s thorough recitation of

the facts illustrate, Hammock’s testimony was vague, only hinting at the chaos and transience

of Mahdi’s living circumstances; Shareef’s “inability . . . to parent appropriately and

correctly,” J.A. 1597; and the “confrontational” relationship between Shareef and other

members of the family that led to Mahdi’s isolation and radicalization, J.A. 1601. These

abstractions did very little to deepen the trial court’s understanding of “the individual behind

the aggravating evidence.” Stokes,

(4th Cir. 2021) (citing Allen v. Woodford,

(9th Cir. 2005)).

As much is reflected in the trial court’s sentencing decision. The court’s

consideration of Mahdi’s “turbulent and transient childhood and upbringing” as a mitigating

circumstance spans four sentences. J.A. 1669. It first notes that there was “no reference to

physical . . . abuse suffered by the defendant” and that “defendant’s father . . . continually

about as extreme as any child can experience.” Stokes,

(holding that capital counsel performed deficiently when they conveyed profound and chronic trauma as merely a “difficult upbringing” and “struggles growing up”). 131 expressed great care and concern for [Mahdi’s well-being].” J.A. 1669–70. Then, viewing

Hammock’s testimony as a whole, the court concludes that Mahdi’s upbringing was simply

“less than ideal” but bore no relation to his criminal conduct. J.A. 1670. In the end, the trial

court gave Mahdi’s upbringing “no weight” as a mitigating circumstance.

Evidence of childhood abuse is always “especially mitigating, and its omission is thus

particularly prejudicial.” Andrews v. Davis,

(9th Cir. 2019). Against

this backdrop—where trial counsel’s mitigation presentation had no bearing on the

factfinder—evidence of childhood abuse would have been particularly powerful. In my view

there is at least some merit to Mahdi’s argument that he was prejudiced by trial counsel’s

deficient mitigation presentation.

b.

For many of the same reasons, there is a good reason to believe that PCR counsel’s

failure to investigate Mahdi’s childhood abuse and challenge trial counsels’ effectiveness

was deficient. That said, I would not reach that question because genuine issues of material

fact preclude judgment on the issue.

As discussed above, the question of whether an attorney’s performance was deficient

turns in large part on whether their decisions were strategic. Wiggins,

(quoting Strickland, 466 U.S. at 690–91). Even though the district court proceeding was

parties’ first opportunity to create a record for why PCR counsel made the decisions it did,

the district court denied Mahdi’s request for an evidentiary hearing. J.A. 529–30. A perhaps

unintended result of this is that the State did not produce evidence or argue that PCR

counsel’s failure to investigate and present evidence of Mahdi’s childhood abuse was a

132 strategic choice. Instead, it sought judgment on this claim on other grounds—namely, that

the abuse subclaim was not new and that, even if it were, trial counsel were not ineffective

for failing to raise it. See J.A. 117–18. But, as discussed above, both of these premises are

incorrect.

In contrast, Mahdi presented evidence that state counsel’s failure to uncover Mahdi’s

childhood abuse was not at all strategic. In his opposition brief, Mahdi argued that “PCR

counsel . . . . had no strategic reason . . . for failing to interview witnesses uncovered by

Federal habeas counsel who witnesse[d] abuse at the hand of Mr. Mahdi’s father.” J.A. 339–

40 (citing Dworkin Aff., Ex. 1). Dworkin’s affidavit then gave substance to this argument,

identifying the witness that PCR counsel overlooked and previewing the relevant testimony.

J.A. 370–71. Viewed against Stirling’s silence on the issue, this evidence—while limited—

should have been fatal to Stirling’s motion. See Fed. R. Civ. Proc. 56(a), (c)(1)(A).

I would vacate the district court’s judgment on this subclaim and remand for the

district court to hold the evidentiary hearing that Mahdi requested.

III.

The district court’s standard for denying Mahdi’s funding request was inconsistent

with the directives set forth in

. And its grant of summary judgment

unduly discounted the gravity of Mahdi’s abuse subclaim. Because the majority overlooks

these errors for the sake of finality, I respectfully dissent.

133