PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-7276

LYNEL WITHERSPOON,

Petitioner - Appellant,

v.

DONNIE STONEBREAKER, Warden of Evans Correctional Institution,

Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:19-cv-00336-HMH)

Argued: September 24, 2021 Decided: April 8, 2022

Before KING and RUSHING, Circuit Judges, and John A. GIBNEY, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge King wrote the majority opinion, in which Senior Judge Gibney joined. Judge Rushing wrote a dissenting opinion.

ARGUED: Emily Washburn, Rohun Shah, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Tommy Evans, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. ON BRIEF: John J. Korzen, Director, Rachel A. Klink, Third-Year Law Student, Alexandria K. Montgomery, Third-Year Law Student, Appellate Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Alan Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney General, Melody J. Brown, Senior Assistant Deputy Attorney General, Caroline Scrantom, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee.

2 KING, Circuit Judge:

This appeal arises from Lynel Witherspoon’s nearly decade-long pursuit of relief

from his 2013 conviction of a single count of cocaine distribution. Witherspoon was tried

for that offense in the Court of General Sessions for Horry County, South Carolina (the

“trial court”). The prosecution’s evidence at trial was short of overwhelming, consisting

principally of the testimony of an informant and a surveillance video she recorded during

a controlled drug buy in a vehicle. The jury was initially unable to arrive at a verdict, and

the trial court therefore ordered further deliberations. Shortly thereafter, the jury requested

to view an enlarged, still frame from the informant’s video, appearing to show the seller’s

face reflected in the vehicle’s side-view mirror. Witherspoon’s trial counsel did not object

to that request, and the court granted it. The jury then requested that Witherspoon stand

beside the enlarged image. The court inquired if Witherspoon’s counsel had any objection,

to which counsel replied, “I would, Your Honor, but . . . .” See J.A. 246. 1 The court

interjected and directed Witherspoon to stand as the jury wished. The jury then resumed

deliberations and, 10 minutes later, returned with a guilty verdict. Witherspoon was

sentenced to 17 years of imprisonment.

Witherspoon subsequently pursued an unsuccessful direct appeal and, in 2014, filed

an application for postconviction relief in the Court of Common Pleas for Horry County

(the “PCR court”). In that proceeding, Witherspoon alleged that his trial counsel had

1 Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal.

3 rendered ineffective assistance by failing to raise significant objections at trial, including

an objection to the stand-up order. The PCR court denied relief in an abbreviated ruling,

determining that, under Strickland v. Washington,

(1984), Witherspoon’s

counsel “attempted to object at all appropriate times” and consequently was not “deficient

in any way.” See Witherspoon v. State, No. 2014-CP-26-8292, at 5 (S.C. Ct. Com. Pl. Mar.

7, 2016) (the “PCR Opinion”). The PCR court further ruled that, because there was no

evidence that counsel’s representation “was anything but professional and beneficial,”

there was no showing of prejudice.

Witherspoon sought appellate review, once more

without success.

In 2019, Witherspoon brought these federal habeas corpus proceedings in the

District of South Carolina pursuant to

, but the district court denied relief,

concluding that the PCR court had not unreasonably applied the standards set forth in

Strickland. Witherspoon timely noted an appeal to this Court, and we granted a certificate

of appealability relative to his claim that his trial counsel was ineffective for failing to

object to the stand-up order.

As explained herein, we conclude that Witherspoon’s trial counsel’s failure to object

to the stand-up order constituted objectively deficient performance, that her performance

prejudiced Witherspoon’s defense, and that she thereby rendered constitutionally

ineffective assistance. We also resolve that, in ruling to the contrary, the PCR court

unreasonably applied the standards of Strickland to the facts of this case. Accordingly, we

reverse the district court’s judgment denying § 2254 relief and remand for the court to

4 award Witherspoon a writ of habeas corpus unless the State of South Carolina endeavors

to prosecute him in a new trial within a reasonable time.

I.

A.

In August 2011, a South Carolina narcotics task force orchestrated a controlled drug

buy in Horry County with a confidential informant, Jessica Stone. Stone represented that

she was familiar with a drug dealer of interest to the task force, known to her as “Spoon.”

At the task force’s direction, Stone arranged to purchase a quantity of crack cocaine from

“Spoon” outside a Myrtle Beach apartment building. Investigators equipped a button in

Stone’s shirt with a small, forward-facing “button cam,” searched her for drugs, and gave

her $40 in marked bills to exchange for the cocaine. Stone’s boyfriend then drove her to

the site of the deal, followed closely behind by task force investigators.

Once in front of the apartment building, Stone made a phone call to “Spoon” from

her vehicle’s passenger seat. The investigators, positioned about 100 yards away, then

witnessed a “Black male” approach Stone’s vehicle. See J.A. 128. The man entered the

vehicle’s back seat on the right side, sitting directly behind Stone. Because of his

positioning, the man’s face was never directly recorded by Stone’s “button cam.” The man

remained in the vehicle for several minutes, completed the transaction, and then left the

area. Stone and her boyfriend drove to a prearranged meeting place, where Stone turned

over to the investigators a bag of crack cocaine and her surveillance camera.

5 Evidently, the task force suspected Witherspoon of being the seller at the time of

the controlled buy. 2 He was not arrested for his alleged involvement in the transaction,

however, until September 2012, some thirteen months later. Following his arrest,

Witherspoon was indicted by a Horry County grand jury with a single count of distribution

of cocaine, in contravention of

(b)(1). In July 2013,

Witherspoon pleaded not guilty and proceeded to trial.

B.

Witherspoon’s jury trial was conducted in the state trial court (the Court of General

Sessions for Horry County) on July 24 and 25, 2013. He was represented during that trial

by a lawyer from the county public defender’s office. The prosecution’s witnesses

consisted largely of the involved narcotics investigators, alongside the confidential

informant, Jessica Stone. The task force’s lead investigator testified that it was one of his

colleagues who witnessed the crack cocaine seller enter Stone’s vehicle, acknowledging

that the observation was made from some distance. Other investigators testified as to their

interactions with Stone, as well as the sampling and chain of custody of the purchased

cocaine. Each member of the task force conceded that they were unable to witness the

drug buy firsthand, and none were able to identify Witherspoon in the courtroom. The

prosecution did not elicit any testimony as to why no arrest was made at the scene of the

crime, nor why Witherspoon was not apprehended until more than a year after the fact.

2 At the beginning of the video recorded by Stone’s “button cam,” an agent states to the camera, “We’re here. This is a control buy for crack cocaine from — with a confidential informant with the suspect being Lynel Witherspoon.” See J.A. 279.

6 For her part, Stone identified Witherspoon as the person she knew as “Spoon” and

as the man she purchased the crack cocaine from during the 2011 controlled buy. During

Stone’s testimony, the prosecution played the video captured during the transaction by the

“button cam.” Stone acknowledged on cross-examination, however, that because of the

camera’s forward-facing orientation, it failed to capture the seller’s face or any material

parts of the drug handoff. She further explained that no investigators were present during

the transaction or at the time she spoke with the seller over the phone. When confronted

by Witherspoon’s trial counsel, Stone admitted to having three prior felony convictions for

forgery. Witherspoon’s counsel ultimately inquired of Stone, “So, again, there is nothing

else here to confirm the identity of anybody other than your say-so, you calling out a name;

isn’t that right?” See J.A. 196. Stone agreed: “Seems that way.”

The prosecution

rested following Stone’s testimony. Witherspoon subsequently moved for a directed

verdict, which motion the trial court denied. Witherspoon opted not to testify in his own

defense.

The case was submitted to the jury at 3:53 p.m., and the jury returned with a series

of questions during the afternoon. In response to queries as to why the seller was not

arrested at the scene and why Witherspoon was not arrested until more than a year later,

the trial court admonished the jury that “it would be highly improper to supplement the

testimony during your deliberations. So I can only tell you that you must decide this case

based on the evidence that has been given and the testimony that has been presented during

the trial of the case, all right.” See J.A. 229. As relevant to this appeal, the court’s

instruction was generally consistent with South Carolina precedent recognizing that

7 submitting evidence not admitted during trial to a jury during its deliberations unfairly

prejudices the defendant, oftentimes entitling him to a new trial. See, e.g., State v. Hill,

(S.C. Ct. App. 2011). Ultimately, at 6:50 p.m. that evening, the

jury indicated that it was unable to arrive at a unanimous decision. The court dismissed

the jury for the day and resolved to issue an Allen charge in the morning. 3

At 10:06 a.m. the following day, shortly after the trial court had given its Allen

charge, the jury requested to again view the surveillance video recorded during the drug

buy. More specifically, the jury asked to see a particular freeze-frame from that video,

wherein the seller’s face appeared to be reflected in the side-view mirror of Stone’s vehicle.

That freeze-frame had not been displayed, in and of itself, to the jury during trial — there,

the “button cam” video was played without pause or alteration. At the court’s direction,

the prosecution presented the video on a projector screen, identified the desired frame, and,

as Witherspoon’s trial counsel later described, “manipulat[ed] it to try to blow it up,”

resulting in a “pix[e]lated” magnification. See J.A. 289-90. Once the image in question

was presented, the jury asked if it could be “brightened any,” and the court had the

courtroom lights lowered. Id. at 245. Witherspoon’s counsel did not lodge any objection

during that process.

3 An Allen or “dynamite” charge is an instruction given by a trial court urging, inter alia, reconsideration of the jury’s position “when [the] jury has reached an impasse in its deliberations and is unable to reach a consensus.” See United States v. Cropp,

(4th Cir. 1997) (citing Allen v. United States,

(1896)).

8 The jury next indicated that it “would like the defendant to stand up and face us.”

See J.A. 245. At that point, the following exchange occurred between the court and

Witherspoon’s trial counsel:

THE COURT: Any objection?

WITHERSPOON’S COUNSEL: I would, Your Honor, but . . .

THE COURT: I think that is appropriate. Please stand. Please stand.

Id. at 246.

Witherspoon then looked to his lawyer for instructions. In subsequent testimony,

Witherspoon’s trial counsel recounted that she was “thinking an explicative” at the time

and that she “[could not] believe that the judge [was] making my client stand up next to a

video, you know, next to a blow-up picture from a side-view mirror picture from the video.”

See J.A. 292. Nonetheless, counsel told Witherspoon that he had to stand as directed — as

she later stated, “he stands up, and that is that.” Id. After observing Witherspoon next to

the freeze-frame, the jury resumed deliberations at 10:24 a.m. Ten minutes later, at 10:34

a.m., the jury returned with a unanimous verdict, finding Witherspoon guilty of the cocaine

distribution charge. Witherspoon declined to address the court, and the court promptly

sentenced him to 17 years of imprisonment.

C.

1.

Following his conviction, Witherspoon initiated what would become a protracted

endeavor to obtain relief, to be overseen by an extensive cast of lawyers. First,

9 Witherspoon turned to the South Carolina Court of Appeals, where he was again

represented by a lawyer with the public defender’s office. Witherspoon’s appellate lawyer,

however, filed an Anders brief, and did not raise any challenge to the trial court’s stand-up

order but asserted only that the court erred by failing to enter a directed verdict. 4 In accord

with Anders, Witherspoon’s appellate lawyer moved to be relieved as counsel, citing a lack

of meritorious issues to be raised on direct appeal. Witherspoon then filed a pro se brief

further contesting the trial court’s jury instructions and Allen charge. In October 2014, the

state court of appeals dismissed the matter after conducting an Anders review and granted

appellate counsel’s motion to be relieved. Witherspoon petitioned the Supreme Court of

South Carolina for a writ of certiorari, but that court too turned him away, explaining that

it denies certiorari as a matter of course when the state court of appeals dismisses an appeal

upon an Anders review. At that stage, Witherspoon had exhausted his options for a direct

appeal in the South Carolina courts.

4 An Anders brief takes its name from the Supreme Court’s decision in Anders v. California,

(1967). Pursuant thereto, a lawyer who concludes that an appeal on behalf of his criminal defendant client would be “wholly frivolous” should advise the appellate court as such and file a request to withdraw from representation, along with “a brief referring to anything in the record that might arguably support the appeal.”

. The defendant may then file a pro se brief, and the court must conduct its own “full examination of all the proceedings” to determine whether the appeal is indeed “wholly frivolous.”

10 2.

a.

Initially proceeding pro se, Witherspoon next filed his application for

postconviction relief in the state PCR court (the Court of Common Pleas for Horry County).

In that proceeding, which is at the root of this appeal, Witherspoon attacked his conviction

on grounds including ineffective assistance of his trial counsel. Witherspoon was again

appointed representation for the PCR court hearing of February 9, 2016. There, the

appointed lawyer developed Witherspoon’s ineffective assistance claim into four discrete

claims. He maintained that trial counsel violated her Sixth Amendment duty by failing to

(1) move to suppress the “button cam” surveillance video; (2) move to suppress or object

to the lead narcotics investigator’s purported hearsay testimony; (3) object to the trial

court’s Allen charge; and (4) object to either the display of the video freeze-frame or the

court’s subsequent stand-up order.

Witherspoon’s trial counsel testified at the PCR court hearing, which focused solely

on the ineffective assistance allegations against her. Trial counsel explained, in pertinent

part, that although she was “appalled” by the prosecutor’s display and “blowing up” of the

surveillance video freeze-frame, she elected not to object to that demonstration itself

because the video was already in evidence. See J.A. 289-90. With respect to the court’s

order for Witherspoon to stand next to the display, counsel testified that she “was trying to

object or some version of that, but I don’t think I objected strenuous enough or clear

enough, because I was very unhappy with the judge making my guy stand up beside the

video.” Id. at 290.

11 When questioned on direct examination, Witherspoon’s trial counsel agreed that the

prosecution’s display of the freeze-frame presented the jury with “a different depiction of

the evidence,” even prior to Witherspoon’s being made to stand next to the image. See

J.A. 291. In response to an inquiry as to whether she had in fact objected to the court’s

stand-up order, trial counsel stated, “Apparently my statement was cut off” and “apparently

I didn’t get much out.” Id. at 291-92. She elaborated that “I think that the decision was

made when the jury requested it, but I did attempt to object.” Id. at 292.

On cross-examination, Witherspoon’s trial counsel suggested that she actually

succeeded in objecting to the stand-up order, saying that she “[a]pparently” did object. See

J.A. 299. She also referred to that moment in the trial, however, as “my major regret here.”

Id. Addressing her silence upon the trial court’s directive for Witherspoon to stand, trial

counsel agreed with her cross-examiner that “once a judge makes up his mind, you have to

roll with it.” Id. But she then acknowledged her duty “to defend my client and his rights”

and the possibility that she thus should have lodged “a more insistent objection.” Id. As

trial counsel put it, “I think that maybe I should have just taken the hit and . . . put it all out

there . . . because ultimately that is my job.” Id.

b.

By its PCR Opinion of March 7, 2016, the PCR court denied Witherspoon’s

application for relief. In so doing, the court set forth the standards governing ineffective

assistance claims under Strickland v. Washington,

(1984). Specifically, the

court explained that Strickland’s “two-pronged test” required Witherspoon to show, first,

that “trial counsel’s performance was deficient” and, second, that “counsel’s deficient

12 performance . . . prejudiced [Witherspoon] such that ‘there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.’” See PCR Opinion 4-5 (quoting Strickland,

).

The PCR court then disposed of Witherspoon’s four claims of ineffective assistance

of trial counsel in a catch-all determination. In analyzing Strickland’s performance prong,

the court generally found that Witherspoon’s trial counsel “had a valid and clearly

articulable trial strategy that was in line with the prevailing norms of professional conduct.”

See PCR Opinion 5. The court premised that finding on trial counsel’s “very credible . . .

testimony regarding her trial strategy and how she was prepared to handle different

elements of the evidence and witnesses at trial.”

As pertinent to this appeal, the court

further credited counsel’s “persuasive and credible . . . testimony that she attempted to

object at all appropriate times.”

That is, the court found — consistent with counsel’s

testimony on direct examination — that counsel merely “attempted to object” to the stand-

up order. Nevertheless, the court concluded that Witherspoon failed “to demonstrate trial

counsel was ineffective in any manner” or “deficient in any way.”

In assessing Strickland’s prejudice prong, the PCR court simply related that,

“assuming arguendo that deficiency had been proven, [Witherspoon] failed to prove that

he was in any way prejudiced by trial counsel’s representation.” See PCR Opinion 5. That

was because Witherspoon “presented no evidence of trial counsel representing him in a

manner that was anything but professional and beneficial.”

Despite having recited the

Strickland standard for measuring prejudice — whether “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

13 different,” see Strickland,

— the court did not undertake any analysis of

the likelihood of a different trial result if Witherspoon’s counsel had objected to the stand-

up order.

c.

Witherspoon again sought review by the Supreme Court of South Carolina, at which

time yet another lawyer was appointed to handle his appeal. Witherspoon’s new appellate

attorney argued that the PCR court had erred in its Strickland analysis by failing to find

trial counsel ineffective for not objecting to the freeze-frame display or the stand-up order.

Like his counsel on direct appeal, however, Witherspoon’s new appellate lawyer ultimately

petitioned to be relieved from her role — she filed with the state supreme court a Johnson

brief, a South Carolina analogue to an Anders brief. 5

Witherspoon then filed a handwritten pro se brief in the Supreme Court of South

Carolina on November 16, 2016, raising numerous contentions of error by both the trial

and PCR courts. With respect to his claim that the PCR court erred in not finding his trial

counsel ineffective for her handling of the stand-up procedure, Witherspoon averred that

“[a]n objection is said to be a formal statement opposing something that has occurred.”

See J.A. 404. For that proposition, Witherspoon relied on State v. Byers,

(S.C. 2011), which held that for an in-court objection to be preserved for appellate

review, it must be made “with sufficient specificity to inform the circuit court judge of the

5 In a Johnson brief, appellate counsel proclaims there are no meritorious issues that can be raised in a South Carolina postconviction relief appeal. See Johnson v. State,

(S.C. 1988).

14 point being urged by the objector.” Witherspoon maintained that his trial counsel’s

statement of “I would, Your Honor, but . . .” could not be read to “sufficiently specify

anything,” considering that “the word ‘but,’ means, ‘on the contrary’ or shows contrast or

[is] used to negate which means, to make ineffective.” See J.A. 404. The state supreme

court then transferred Witherspoon’s case to the South Carolina Court of Appeals pursuant

to a local procedural rule. In April 2018, after reviewing the record and considering the

appellate lawyer’s Johnson brief, that court denied certiorari.

3.

In February 2019, faced with no further options in the South Carolina state courts,

Witherspoon filed in the District of South Carolina the

petition for habeas

corpus relief at issue in this appeal. 6 Section 2254 generally requires that, for a district

court to grant a writ of habeas corpus, the court must determine that the state court

adjudication of the applicant’s claim resulted in a decision “contrary to” or “involv[ing] an

unreasonable application of” clearly established federal law, or a decision “based on an

unreasonable determination of the facts.” See

(d)(1)-(2).

Witherspoon’s § 2254 petition was prepared and briefed by his fifth lawyer. That

petition presented the federal district court with fundamentally the same four claims of

6 By virtue of having pursued all options for relief available to him in the South Carolina courts, both on direct appeal and in seeking postconviction relief, Witherspoon satisfied § 2254’s procedural exhaustion conditions. Those conditions require an applicant to have “exhausted the remedies available in the courts of the State,” which will not be the case unless and until “he has [no] right under the law of the State to raise, by any available procedure, the question presented.” See

(b)(1)(A), (c).

15 ineffective assistance of trial counsel that had been argued in the state PCR court, alleging

ineffective assistance of Witherspoon’s trial counsel for failure to move to suppress or

object to (1) the “button cam” video; (2) the investigator’s testimony; (3) the trial court’s

Allen charge; and (4) the stand-up order. 7 As part of those claims, the petition advanced

new contentions that trial counsel rendered ineffective assistance by failing to move for a

mistrial after the trial court gave the jury the Allen charge and issued the stand-up order.

Witherspoon’s habeas corpus proceedings were initiated against respondent Donnie

Stonebreaker, warden of the Evans Correctional Institution in South Carolina, where

Witherspoon was and remains in confinement. We refer herein to the respondent as the

“State.”

The State answered Witherspoon’s § 2254 petition and moved for summary

judgment. In support of its motion, the State first asserted that the PCR court had not

specifically ruled on each of Witherspoon’s claims for relief, rendering them procedurally

defaulted. On the merits, the State maintained that the PCR court’s application of

Strickland to the facts of Witherspoon’s claims passed muster under the standards of

§ 2254(d), such that no relief was warranted.

In July 2019, the magistrate judge issued a report and recommendation, advising the

district court to deny Witherspoon’s § 2254 petition and to grant the State’s motion for

summary judgment. See Witherspoon v. Stonebreaker, No. 8:19-cv-00336 (D.S.C. July

7 Witherspoon did not contend in his § 2254 petition that his trial counsel was ineffective by reason of failing to object to the video freeze-frame display.

16 11, 2019), ECF No. 14 (the “Report and Recommendation”). Because the PCR court had

not ruled on Witherspoon’s claims concerning his trial counsel’s failure to move for a

mistrial, the Report and Recommendation found those contentions to be procedurally

defaulted. It went on to determine that although the remaining four claims were not so

defaulted, those claims failed on the merits because Witherspoon could not demonstrate

that the PCR court’s decision was contrary to or involved an unreasonable application of

Strickland, or that the decision was based on an unreasonable determination of the facts.

Relative to Witherspoon’s claim pertaining to his trial counsel’s failure to object to

the stand-up order, the magistrate judge acknowledged the PCR court’s finding that trial

counsel had “attempted to object.” See Report and Recommendation 32. Thereafter,

however, the Report and Recommendation treated counsel’s mere attempt to object as a

successful objection. According to the Report and Recommendation, counsel “objected to

having [Witherspoon] stand next to the image on the screen, and [Witherspoon] has failed

to direct this Court to any legal authority to support his argument that trial counsel should

have handled the objection differently.” Id. at 35. Relying on the premise that

Witherspoon’s trial counsel had successfully objected to the stand-up order, the Report and

Recommendation then advocated granting the State’s summary judgment motion on the

pertinent ineffective assistance claim.

Witherspoon filed objections to the Report and Recommendation, highlighting that

the PCR court had found that his trial counsel only attempted to object to the stand-up

order. See Witherspoon v. Stonebreaker, No. 8:19-cv-00336 (D.S.C. July 25, 2019), ECF

No. 15. In Witherspoon’s words, the PCR court acted unreasonably in that it “completely

17 disregarded [a] fundamental principle of constitutionally effective representation” in

concluding “that counsel’s ‘attempt[s] to object at all appropriate times’ were sufficient

for the purposes of Strickland.” Id. at 8. Witherspoon protested that “[i]f a PCR court is

willing to excuse counsel’s failure to raise issues at trial, the proceeding ceases to have any

value for the applicant.” Id.

By its opinion and order of August 12, 2019, the district court adopted the Report

and Recommendation over Witherspoon’s objections. See Witherspoon v. Stonebreaker,

No. 8:19-cv-00336 (D.S.C. Aug. 12, 2019), ECF No. 17 (the “Habeas Opinion”).

Consistent with the Report and Recommendation — and contrary to the PCR Opinion —

the Habeas Opinion accepted that Witherspoon’s trial counsel had successfully objected to

the stand-up order. After characterizing trial counsel’s PCR testimony as indicating “that

she objected to . . . the in-court stand up procedure,” id. at 8-9, the Habeas Opinion

pronounced, “[b]ased on the record,” that counsel “objected to the issues identified in

[Witherspoon’s ineffective assistance claims],” id. at 10. From there, the district court

concluded that “the PCR court did not unreasonably analyze the facts regarding

Witherspoon’s claims.” Id. Accordingly, the district court denied Witherspoon’s § 2254

habeas corpus petition, granted summary judgment to the State, and denied a certificate of

appealability.

On September 6, 2019, Witherspoon timely filed a pro se notice of appeal of the

district court’s judgment in the § 2254 proceedings. We granted a certificate of

appealability in August 2020 solely as to Witherspoon’s fourth claim for habeas corpus

relief, on the question of whether the PCR court unreasonably applied Strickland in

18 concluding that Witherspoon’s trial counsel did not render ineffective assistance by failing

to object to the stand-up order. Witherspoon was then appointed counsel for this appeal,

and we possess jurisdiction pursuant to

and 2253. 8

II.

Under

, a state prisoner may petition a federal court for a writ of

habeas corpus, provided the petitioner contends that he is in custody in violation of the

Constitution, laws, or treaties of the United States. See

(a). Following

the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

however, a federal court may not grant § 2254 relief with respect to any claim adjudicated

on the merits in state court unless the underlying state adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

See

(d). Significantly, AEDPA further directs that state court factual

determinations are presumed to be correct and that the presumption of correctness is

rebuttable only by clear and convincing evidence.

§ 2254(e)(1).

8 Contemporaneous with our order of August 7, 2020, granting a certificate of appealability in this matter, we appointed Professor John Korzen and third-year law students of the Wake Forest University School of Law Appellate Advocacy Clinic to represent Witherspoon. Witherspoon’s counsel have performed admirably in these proceedings, and we appreciate their fine service.

19 Our review of a district court’s denial of a state prisoner’s § 2254 petition is de novo,

conducted on the basis of the state court record. See Tucker v. Ozmint,

(4th Cir. 2003). AEDPA places a heavy burden on § 2254 habeas corpus petitioners and

provides for a “highly deferential standard for evaluating state-court rulings, . . .

demand[ing] that state-court decisions be given the benefit of the doubt.” See Tyler v.

Hooks,

(4th Cir. 2019) (quoting Woodford v. Visciotti,

(2002) (per curiam)). Under § 2254(d)(1), a state court’s decision will involve an

“unreasonable application” of federal law only where the court “identified the correct

governing legal principles . . . but unreasonably applied those principles to the facts of [the

prisoner’s] case.” See Elmore v. Ozmint,

(4th Cir. 2011) (citing Williams

v. Taylor,

(2000)). Habeas corpus relief is not to be granted simply

because the reviewing federal court “concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law erroneously or

incorrectly. Rather, that application must also be unreasonable.” See Williams,

. The “reasonableness” inquiry turns on whether “fairminded jurists could disagree”

that the state court decision was correctly rendered. See Harrington v. Richter,

(2011) (quoting Yarborough v. Alvarado,

(2004)). An award of

relief is appropriate only in instances where the state court decision “was so lacking in

justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Id. at 103.

In the context of § 2254(d)(1), “clearly established Federal law” refers to governing

legal principles set forth by the Supreme Court at the time the state court rendered its

20 decision. See Elmore,

. In these proceedings, such principles are drawn

from the Supreme Court’s decision in Strickland v. Washington,

(1984).

There, the Court elaborated on its longstanding recognition that the Sixth Amendment right

to counsel “is the right to the effective assistance of counsel.”

at 686 (quoting McMann

v. Richardson,

, 771 & n.14 (1970)). Strickland set forth a two-prong standard

that must be satisfied for a convicted defendant to prevail on an ineffective assistance of

counsel claim: the defendant must demonstrate that (1) his counsel’s performance was

deficient and (2) such deficient performance prejudiced his defense. Id. at 687. A

sufficient showing on both points evinces “a breakdown in the adversary process that

renders the result unreliable.” Id.

Strickland’s first prong — deficient performance — demands a showing that

“counsel’s representation fell below an objective standard of reasonableness,” taking into

account “prevailing professional norms” and whether “the challenged action might be

considered sound trial strategy.” See Strickland,

-89 (quoting Michel v.

Louisiana,

(1955)). Scrutiny of counsel’s performance is to be highly

deferential, so as to afford counsel latitude in making strategic decisions, though “not every

purported ‘strategic reason’ will do.” See United States v. Allmendinger,

(4th Cir. 2018). As to the second prong — prejudice — the defendant is required to

demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” See Strickland,

. Such

a “reasonable probability” of a change in result is one that is “sufficient to undermine

21 confidence in the outcome.” See Tice v. Johnson,

(4th Cir. 2011)

(quoting Strickland,

).

Where, as here, a § 2254 petition alleges ineffective assistance of counsel as a basis

for relief, the reviewing federal court must assess the claim “through the dual lens of the

AEDPA standard and the standard set forth by . . . Strickland.” See Valentino v. Clarke,

(4th Cir. 2020). That is, our review in such a case is best characterized

as “doubly” deferential, requiring us to consider “whether there is any reasonable argument

that counsel satisfied Strickland’s deferential standard.” See Harrington,

;

see also Moore v. Hardee,

(4th Cir. 2013).

III.

Despite the markedly deferential standard of review compelled by AEDPA, we must

conclude that Witherspoon is entitled to habeas corpus relief under

on

the Sixth Amendment ineffective assistance of counsel claim now before us — the claim

that his trial counsel was ineffective in failing to object to the trial court’s stand-up order.

Our consideration of the factual backdrop presented to the state PCR court leads us to the

inescapable conclusion that the court unreasonably applied the governing legal standards

from Strickland v. Washington,

(1984), in ruling that Witherspoon’s

counsel’s handling of the stand-up issue was not ineffective. We accordingly resolve that

the district court erred in its approval of the PCR court’s disposition of that claim.

22 A.

As explained above, in analyzing Strickland’s performance prong, the PCR court

credited Witherspoon’s trial counsel’s testimony that she merely “attempted to object” to

the stand-up order and at all other appropriate times. See PCR Opinion 5. Although the

district court proceeded on the premise that trial counsel successfully objected to the stand-

up order, the PCR court found to the contrary and nonetheless ruled that counsel was not

“ineffective in any manner” or “deficient in any way.” See

We conclude that the PCR

court unreasonably applied Strickland to the facts of Witherspoon’s case in deciding that

trial counsel’s performance was not deficient. Simply put, trial counsel cannot be found to

have operated within the admittedly broad scope of Strickland’s measure of competence

when she only attempted — and thereby failed — to object to the stand-up order.

1.

In our review of the PCR court’s ruling, we abide by the court’s finding that

Witherspoon’s trial counsel merely “attempted to object” to the stand-up order. And we

do so in rejection of the State’s efforts to have us accept, as the district court did, that

counsel actually objected successfully. As we must under AEDPA, we presume the PCR

court’s factual determination to be correct in the absence of clear and convincing evidence

to rebut that presumption. See

(e)(1). We also observe that, in concluding

that trial counsel did in fact object, the district court disregarded AEDPA’s deferential

standard.

First of all, the PCR court’s finding that Witherspoon’s trial counsel “attempted to

object” cannot be interpreted as a finding that she actually objected. An attempted

23 objection is not the same as the real thing — just as, for instance, an attempt to swim the

width of a river is not the same as reaching the opposite bank. Furthermore, the PCR

court’s determination that trial counsel made only an attempted objection, and thus failed

to make an actual one, is supported by the record. Counsel’s response to the trial court’s

inquiry as to whether she objected to the jury’s request to have Witherspoon stand — “I

would, Your Honor, but . . .” — turned on the conditional term “but,” suggesting that

counsel “would” have objected but for some unspoken matter that informed her decision

not to challenge the jury’s request. As Witherspoon himself aptly stated in his pro se appeal

from the PCR Opinion, “the word ‘but,’ means, ‘on the contrary’ or shows contrast or [is]

used to negate which means, to make ineffective.” See J.A. 404. The plain meaning of

counsel’s response to the trial court’s inquiry, then, confirms that her statement was far

afield from an outright objection.

The proposition that Witherspoon’s trial counsel failed to object to the stand-up

order also finds support in South Carolina law. The South Carolina Rules of Evidence

provide that preserving an issue for appeal requires the lawyer to timely object, state her

“specific ground of objection,” and obtain a ruling on that objection. See S.C. R. Evid.

103(a)(1). The decisions of the Supreme Court of South Carolina are to the same effect.

See, e.g., State v. Byers,

(S.C. 2011) (“For an objection to be preserved

for appellate review, [it] must be made . . . with sufficient specificity to inform the circuit

court judge of the point being urged by the objector.” (citations omitted)); State v. Prioleau,

(S.C. 2001) (“[A]n objection should be sufficiently specific to bring

into focus the precise nature of the alleged error so it can be reasonably understood by the

24 trial judge.”); Wilder Corp. v. Wilke,

(S.C. 1998) (“It is axiomatic that

an issue cannot be raised for the first time on appeal, but must have been raised to and ruled

upon by the trial judge . . . .”). Here, trial counsel’s response to the stand-up order cannot

be interpreted as having set forth a “specific ground of objection” or having “br[ought] into

focus the precise nature of the alleged error,” and the record does not suggest that any

objection was actually raised and ruled upon by the trial court. In these circumstances, the

state PCR court’s determination that trial counsel attempted, but failed, to object to the

stand-up order is unassailable.

2.

There also can be no dispute that any reasonable lawyer would have objected to the

trial court’s order for Witherspoon to stand next to the video freeze-frame, a procedure that

presented the jury with new, material evidence following the close of the trial evidence.

South Carolina law makes clear that evidence submitted to a jury during its deliberations

— and not introduced at trial — is unfairly prejudicial to the defendant, and absent a

curative instruction, granting the defendant a new trial is the appropriate remedy for such

error. See State v. Hill,

(S.C. Ct. App. 2011) (citing State v.

Rogers,

(S.C. 1914)); accord United States v. Lentz,

(4th Cir. 2004) (“If prejudicial evidence that was not introduced at trial comes before the

jury, the defendant is entitled to a new trial.” (quoting United States v. Barnes,

(4th Cir. 1984))). By the same token, any evidentiary presentation that is made

during jury deliberations must “mirror[] the way in which the evidence was presented at

trial.” See State v. Winkler,

(S.C. 2010).

25 Plainly, Witherspoon’s trial counsel possessed a well-founded basis for objecting to

the stand-up order. Trial counsel conceded in her PCR testimony that the video freeze-

frame alone was “a different depiction of the evidence,” see J.A. 291, and with

Witherspoon beside the freeze-frame, the stand-up display certainly did not “mirror” the

display of the surveillance video during trial. Yet not only did counsel fail to lodge an

objection when asked by the trial court if she objected to the jury’s stand-up request, she

actually sat silent when the trial court thereafter directed her client to “[p]lease stand.” Id.

at 246. Counsel did not request to approach the bench, nor did she seek to discuss the

stand-up issue with the court outside of the jury’s presence. Instead, she simply demurred

and opted to “roll with it.” Id. at 299.

It is notable that, even if Witherspoon’s trial counsel was not previously aware of

the relevant principles of South Carolina law, she was put on notice of them when the trial

court responded to the jury’s initial requests for additional information. In a firm rebuke

explaining that consideration of supplementary evidence during deliberations would be

inappropriate, the trial court advised the jury that

it would be highly improper to supplement the testimony during your deliberations. So I can only tell you that you must decide this case based on the evidence that has been given and the testimony that has been presented during the trial of the case, all right.

See J.A. 229. Following that admonishment, it was surely apparent that the jury was not

to be presented with “supplemental” information amid its deliberations.

Moreover, the gravity of the stand-up order presented Witherspoon’s trial counsel

with every reason to make a swift and unequivocal objection. In brief, the prosecution’s

26 case against Witherspoon was relatively thin at the close of the evidence. At that stage,

Witherspoon’s counsel had successfully impeached the credibility of the prosecution’s

informant by way of her admission to her prior felony convictions for forgery.

Witherspoon’s counsel had also established that the informant’s “button cam” video failed

to capture any part of the crack cocaine transaction or a direct view of the seller’s face.

The prosecution, then, was hard pressed to meet its burden of proving Witherspoon’s guilt.

And indeed, the trial court had been compelled to give an Allen charge because the jury

had found itself deadlocked.

It is accordingly evident that lodging a proper objection to the trial court’s stand-up

order — in an effort to shield Witherspoon from new and potentially incriminatory

evidence, to protect his interests, and to preserve a compelling issue for appeal that would

likely entitle him to a new trial if the objection were overruled — was necessary to afford

proficient, effective assistance. Cf. Haskins v. Fairfield Elec. Coop.,

, 191

(S.C. Ct. App. 1984) (“Where a ruling on an objection is not made by the trial judge and

counsel does not pursue a ruling, there is no decision by the trial judge for this court to

review.”), overruled on other grounds by O’Neal v. Bowles,

(S.C. 1993).

Conversely, Witherspoon’s trial counsel’s failure to so object was out of line with the

performance of the capable criminal defense lawyer contemplated by Strickland.

Importantly, trial counsel’s failure to object to the stand-up order cannot, under

Strickland, be defended as adequate performance rooted in some “sound trial strategy”

consistent with “prevailing professional norms.” See Strickland,

(quoting

Michel v. Louisiana,

(1955)). Although the PCR court found that

27 Witherspoon’s counsel “had a valid and clearly articulable trial strategy that was in line

with the prevailing norms of professional conduct,” the court made no effort to explain

how trial counsel’s handling of the stand-up order was in furtherance of a sensible strategy

and in line with what a reasonable professional would do under the circumstances. See

PCR Opinion 5. To be sure, we are obliged to presume that counsel’s conduct was within

the “wide range” of what can constitute reasonably competent assistance. See Strickland,

. That presumption, however, cannot stand in these circumstances. If

there is some “sound trial strategy” in yielding to the presentation of new evidence during

jury deliberations that is patently injurious to one’s own client, or some “prevailing

professional norm” counseling as much, it has not been brought to our attention.

It may be argued that in refraining from making further efforts to prohibit the stand-

up procedure, Witherspoon’s trial counsel sought to avoid a sparring match with the judge

or retaliation for questioning the court’s orders. An attorney’s obligations are owed chiefly

to her client, however, and there is no reasonable argument to be made that by remaining

silent, trial counsel served Witherspoon’s interests more so than she would have by

objecting to the stand-up order. As counsel later acknowledged, “I have to defend my

client and his rights, and I think that maybe I should have just taken the hit.” See J.A. 299.

Prevailing professional norms call for zealous representation of the client at all stages of a

criminal trial, for keeping incriminating evidence from the jury’s eye to the best of

counsel’s ability, and for ensuring that meritorious issues are preserved for appellate

review. Counsel’s failure to object to the stand-up order did not comport with those norms.

28 3.

Of course, our task in this appeal is not simply to weigh the merits of Witherspoon’s

claim of ineffective assistance, but to scrutinize the PCR court’s application of Strickland

in rejecting that claim. Here, we are compelled to conclude that the PCR court’s

determination that Witherspoon’s trial counsel’s performance was not “deficient in any

way,” see PCR Opinion 5, as though there were no real question on the matter, amounts to

a patently unreasonable application of Strickland that is well within the ambit of

§ 2254(d)(1). We are unable to discern how the court concluded, on the one hand, that trial

counsel did not object to the stand-up order and that, at the same time, she rendered

performance satisfying Strickland’s standard. Indeed, neither the PCR court in its opinion

nor the State in its arguments before this Court have been able to explain how trial counsel’s

response to the stand-up issue might be accredited to a sound trial strategy or defended on

grounds of a norm routinely kept in the legal profession. For that reason, we conclude that

the PCR court’s analysis of Strickland’s performance prong lacked reason and reflects error

“beyond any possibility for fairminded disagreement.” See Harrington v. Richter,

(2011). 9

9 We observe that, if Witherspoon’s trial counsel’s statement to the trial court could be construed as a bona fide objection, our conclusion that her response to the stand-up order was constitutionally deficient under Strickland would not change. Such is the case because Witherspoon’s counsel left the trial record in a state suggesting she did not object and that the stand-up issue had not been preserved for consideration on appeal. We are confident that a reasonable defense attorney in the same circumstances would have made her objection plain and unmistakable. Trial counsel’s failure to do as much is well illustrated by the fact that on direct appeal, Witherspoon’s first appellate lawyer filed an Anders brief and did not contest the propriety of the stand-up order. Thereafter, in its Anders review, (Continued) 29 B.

Although the PCR court concluded that Witherspoon’s trial counsel’s performance

was not deficient, the court proceeded to Strickland’s prejudice prong. Specifically, the

court ruled that — “assuming arguendo that deficiency had been proven” — Witherspoon

“failed to prove that he was in any way prejudiced by trial counsel’s representation.” See

PCR Opinion 5. We conclude that the court unreasonably departed from Strickland in

arriving at that ruling. Critically, Strickland provides that, for a defendant to demonstrate

that his counsel’s deficient performance prejudiced his defense, he must show “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” See

. The PCR court, however,

applied some wholly different test. Assessing Witherspoon’s ineffective assistance claim

under the Strickland standard, as is proper, it is beyond dispute that trial counsel’s failure

to object to the stand-up order prejudiced Witherspoon’s defense.

1.

Pursuant to AEDPA, an “unreasonable application” of clearly established federal

law occurs where the state court decision “identifies the correct governing legal principle

from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” See Williams v. Taylor,

(2000). In this situation,

the South Carolina Court of Appeals failed to identify the stand-up order as a preserved and non-frivolous issue. As such, we perceive no basis on which to conclude that trial counsel’s response to the stand-up order satisfied Strickland’s standard for effective representation.

30 the PCR court had initially identified the applicable legal principle from Strickland: prior

to disposing of Witherspoon’s claims for ineffective assistance, the court recited the above-

stated “reasonable probability” standard. See PCR Opinion 4-5. In its subsequent

consideration of the prejudice question, however, the court shifted to the application of a

test seemingly of its own design. The court’s prejudice analysis proceeded as follows:

[Witherspoon] failed to prove that he was in any way prejudiced by trial counsel’s representation. [Witherspoon] presented no evidence of trial counsel representing him in a manner that was anything but professional and beneficial. Therefore, had this matter reached the second prong of the [Strickland] test, [Witherspoon] could not have proven that he was prejudiced by trial counsel’s ineffective performance.

See PCR Opinion 5.

Thus, the PCR court’s prejudice analysis reflects an unreasonable application of

Strickland, in that the court simply ignored the rule of that decision. It afforded no evident

consideration to whether Witherspoon’s trial counsel’s mere “attempted” objection might

have influenced the outcome of Witherspoon’s trial, instead finding that counsel’s service

was “professional and beneficial,” and “therefore” no prejudice was done to Witherspoon’s

defense. Such is not the Supreme Court’s formulation of the prejudice inquiry, and the

PCR court’s analysis on that question consequently cannot be characterized as anything

less than an unreasonable application of Strickland, perhaps even one that is “contrary to”

the clearly established federal law set forth by the Court therein. See Williams,

(explaining that, under the § 2254(d)(1) “‘contrary to’ clause, a federal habeas court

may grant the writ if the state court arrives at a conclusion opposite to that reached by [the

Supreme] Court on a question of law”).

31 2.

Applying the Strickland prejudice standard results in only one reasonable

conclusion: there is a reasonable probability that, but for Witherspoon’s trial counsel’s

failure to object to the stand-up order, the result of Witherspoon’s trial would have been

different. Prior to the stand-up order, the jury — equipped only with Jessica Stone’s

impeached testimony and the “button cam” video footage — was unable to arrive at a

verdict, repeatedly requesting further information and eventually prompting the trial court

to give an Allen charge. After it was permitted to study Witherspoon next to the video

freeze-frame, however, the jury not only returned a unanimous guilty verdict, but did so in

no less than 10 minutes.

In consideration of that prompt about-face, we fail to see how Witherspoon’s trial

counsel’s failure to object to the stand-up order would not be read as having prejudiced

Witherspoon’s defense. That is, there is at least a “reasonable probability” that had trial

counsel endeavored to stop the stand-up by objecting to the trial court’s order and

explaining the well-founded basis for her protest, the jury would not have observed

Witherspoon beside the freeze-frame and would not have returned a guilty verdict, such

that “the result of the proceeding would have been different.” See Strickland,

(“When a defendant challenges a conviction, the question is whether there is a

reasonable probability that, absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.”).

Once again, AEDPA ultimately charges us with deciding whether there is any

reasonable justification for the PCR court’s ruling that trial counsel’s performance did not

32 prejudice Witherspoon “in any way.” See PCR Opinion 5. We do not hesitate to conclude

that there can be no such justification. We are confident that no “fairminded jurists could

disagree” that the PCR court failed to apply the prejudice test prescribed by the Supreme

Court and that, had the proper analysis been followed, the PCR court would have been

compelled to resolve that trial counsel’s failure to object likely had a direct bearing on the

jury’s guilty verdict. See Harrington,

(quoting Yarborough v. Alvarado,

(2004)). 10

***

In sum, Witherspoon’s trial counsel’s failure to object to the stand-up order was

objectively deficient, prejudiced Witherspoon, and amounted to constitutionally ineffective

assistance of counsel. The PCR court’s determination to the contrary is out of keeping

with the facts presented, but we do not simply conclude here that the court’s ruling was

incorrect. Rather, as required to grant habeas corpus relief under AEDPA, we are

persuaded that the decision involved an unreasonable application of Strickland’s

10 Witherspoon’s trial counsel’s response to the stand-up order may also have prejudiced Witherspoon’s defense by hampering his direct appeal in South Carolina. We observe a reasonable probability that, had trial counsel objected to the trial court’s order — or, assuming her statement could be read as a proper objection, see supra note 9, had she more clearly preserved the issue for appellate review — Witherspoon would have prevailed on appeal. Strickland directs that prejudice is not to be examined in a “mechanical” fashion, see

, and the prejudice inquiry “is defined in different ways depending on the context in which it appears,” see Weaver v. Massachusetts,

(2017). Although we are satisfied that trial counsel’s failure to object prejudiced Witherspoon at trial relative to the jury’s guilty verdict, the full scope of the prejudice at hand may best be considered as reaching beyond the bounds of Witherspoon’s trial.

33 principles. That is, the PCR court’s disposition of Witherspoon’s ineffective assistance

claim “was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” See

Harrington,

. The “unreasonable application” standard derived from

§ 2254(d)(1) preserves the authority to issue the writ in those cases where the state court

decision plainly conflicts with the Supreme Court’s precedent, and where necessary to

“guard against extreme malfunctions in the state criminal justice systems.” See id. at 102-

03 (quoting Jackson v. Virginia,

, 332 n.5 (1979) (Stevens, J., concurring)).

We are assured that this is one of those cases, and that the district court therefore erred in

its approval of the PCR Opinion.

IV.

Pursuant to the foregoing, we reverse the judgment of the district court denying

relief and remand for the court to award Witherspoon a writ of habeas corpus unless the

State of South Carolina endeavors to prosecute him in a new trial within a reasonable

time. 11

REVERSED AND REMANDED

Our dissenting colleague has mischaracterized the relief afforded to Witherspoon 11

by today’s decision, proclaiming that “this federal Court orders the state of South Carolina to release a prisoner convicted of violating its laws.” See post at 35. But we do no such thing. Rather, we remand to the district court and specify that Witherspoon is entitled to release only if South Carolina decides not to afford him a new trial. In so ruling, we in no way “intrude on state sovereignty.” See

We simply honor the Sixth Amendment and thereby fulfill the “meaningful role [of] the federal courts in safeguarding the constitutional rights of state prisoners.” See Elmore v. Ozmint,

(4th Cir. 2011).

34 RUSHING, Circuit Judge, dissenting:

By its decision today, this federal Court orders the state of South Carolina to release

a prisoner convicted of violating its laws because the majority believes that the prisoner’s

counsel should have urged one of her objections more strenuously after the state trial court

overruled it. Because the state post-conviction review (PCR) court already considered and

rejected this claim, federal law prohibits this Court from compelling such intrusive relief

unless it concludes not merely that counsel “made errors so serious that [she] was not

functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment,” Strickland v.

Washington,

(1984), but that “there is [no] reasonable argument that

counsel satisfied Strickland’s deferential standard,” Harrington v. Richter,

(2011) (emphasis added). Only when a state court’s indulgence of Strickland’s

presumption of adequate representation is “so lacking in justification” that no “fairminded

jurist[]” could agree is a federal court entitled to disturb the state court’s decision on post-

conviction review and intrude on state sovereignty in the process.

.

The majority’s purported application of these principles stitches them into window

dressing. After making a de novo appraisal of counsel’s effectiveness based on its own re-

assessment of the record, the majority then summarily concludes that no reasonable jurist

could disagree. See supra, at 29. No deference at all is paid to the state PCR court’s factual

findings, much less to its overall determination that Witherspoon did not suffer prejudicial

Strickland error. Nor is any effort made to entertain the possible reasons for counsel’s

decision, as Strickland’s “strong presumption of competence” demands. Cullen v.

Pinholster,

(2011). Because the majority’s analysis runs contrary to

35 AEDPA—which leaves primary responsibility for these judgments with state courts—I

respectfully dissent.

I.

A.

For the most part, I take no issue with the majority’s presentation of the facts. Two

prominent themes of the state PCR proceedings, however, are worth recounting.

First, from at least the close of evidence onward, Witherspoon’s trial counsel faced

difficulties lodging her objections. In her PCR testimony, which the state PCR court found

“persuasive and credible,” J.A. 44, counsel related that “there were a lot of interrupted

statements” during trial, impeding her ability “to get []thing[s] out there,” J.A. 298; see,

e.g., J.A. 197–198, 230. One instance occurred the same morning as the stand-up order,

during an off-the-record meeting in chambers when counsel objected to the court’s decision

to provide an Allen instruction so soon into jury deliberations. Her objection evidently

steamrolled, the conversation in chambers got “a little heated,” counsel recalled. J.A. 288.

“I certainly wasn’t disrespectful, but it was -- I was basically informed, in certain terms,

that we were going forward.” J.A. 287–288. Although counsel did not get a chance to

object again on the record before the judge issued the Allen charge, she tried immediately

afterward to “preserve whatever I had talked about in chambers.” J.A. 288; see J.A. 241.

Within thirty minutes of the Allen charge, the jury asked to review the button-cam

footage again, specifically requesting to see “the side-view mirror, the image” depicting

the suspect. J.A. 243–244. The judge ordered the prosecutor to skip to that portion and

pause the video, at which point the image was enlarged and became “more pix[e]lated in

36 appearance.” J.A. 290. Unprompted, the jury then asked for Witherspoon “to stand up and

face [them].” J.A. 245. The following exchange occurred:

THE COURT: Any objection?

[COUNSEL]: I would, Your Honor, but . . .

THE COURT: I think that is appropriate. Please stand. Please stand.

J.A. 246.

In her PCR testimony, counsel clarified that although she did not object to the

freeze-framed image itself since the video “was already in evidence,” she “was trying to

object” to the stand-up order because she was “unhappy with the judge making my guy

stand up beside the video.” J.A. 290. While acknowledging that her objection was perhaps

not “strenuous enough or clear enough,” counsel maintained that her “statement was cut

off,” J.A. 290–291, saying, “[A]pparently I didn’t get much out. I think that the decision

[to issue the order] was made when the jury requested it, but I did attempt to object. It just

apparently got shut down pretty instantly,” J.A. 292. This notwithstanding that counsel

described herself, generally, as “pretty forceful when I try to get something out there, so I

have to assume that the [trial judge’s] cutoffs were equally as forceful.” J.A. 298. On

cross-examination, counsel agreed that she “did object to” the stand-up order, “even though

[she was] basically being cut off.” J.A. 299. She expressed doubt that continuing to press

her objection after the “judge ma[de] up his mind” would “change anything,” explaining

that “I would have gotten contempt, [Witherspoon] would still stand up and I think we --

it would have played out the same way.” J.A. 299. Even so, counsel regretted the incident,

conceding that “a more insistent objection” “should have been in there.” J.A. 299.

37 A second theme from counsel’s PCR testimony bears observing. When explaining

her overall trial strategy, counsel repeatedly stressed that the button-cam footage—

specifically its lack of clarity—was “the one bright shiny spot we had in the case.” J.A.

277; see J.A. 277–279, 300. As counsel explained, the suspect’s “face wasn’t clearly

visible on the video. That was very helpful to us.” J.A. 277. Indeed, “that [wa]s

[counsel’s] whole point” to the jury: “You don’t see Mr. Witherspoon’s face on that video

during the actual buy.” J.A. 277–278.

B.

Based on counsel’s testimony and the record before it, the state PCR court denied

Witherspoon’s petition for relief. At the hearing, the PCR court observed that, with respect

to “the judge requiring the defendant to stand up, it is clear from the record, from the trial

transcript, that [counsel] objected to that. What more could she do?” J.A. 309. (In

response, Witherspoon’s PCR attorney answered only that counsel should have “[m]ove[d]

for mistrial.” J.A. 309.) In its subsequent order, the PCR court continued to credit

counsel’s testimony that she objected to various of the judge’s orders but “many of her

objections were cut off or not considered.” J.A. 43. Ruling on all of Witherspoon’s

ineffective assistance claims en masse, the PCR court found “persuasive and credible trial

counsel’s testimony that she attempted to object at all appropriate times” and concluded

that counsel “had a valid and clearly articulable trial strategy that was in line with the

prevailing norms of professional conduct.” J.A. 44. Because Witherspoon presented no

evidence that trial counsel’s representation “was anything but professional and beneficial”

to him, the PCR court held that Witherspoon failed to “demonstrate that trial counsel was

38 deficient” or that “he was in any way prejudiced by trial counsel’s representation.” J.A.

44; see Richter,

(“[W]hile in some instances even an isolated error can

support an ineffective-assistance claim if it is sufficiently egregious and prejudicial, it is

difficult to establish ineffective assistance when counsel’s overall performance indicates

active and capable advocacy.” (internal quotation marks omitted)).

On federal habeas review in the District of South Carolina, the magistrate judge and

district court judge both concluded that the PCR court’s application of Strickland was not

unreasonable. To the contrary, they held, the record revealed that “counsel objected to

having Petitioner stand next to the image on the screen, and Petitioner has failed to direct

this Court to any legal authority to support his argument that trial counsel should have

handled the objection differently.” J.A. 486; see J.A. 506. On this basis, the district court

denied Witherspoon’s habeas petition and declined to authorize an appeal. Our Court,

however, granted a certificate of appealability on the single question now before us:

Whether the state PCR court unreasonably applied federal law by deciding that trial

counsel’s attempted objection to the stand-up order was not ineffective assistance.

II.

Although we review the district court’s denial of habeas relief de novo, AEDPA

demands that we give “considerable deference” to the decision of the state PCR court.

Coleman v. Johnson,

(2012). AEDPA prohibits federal courts from

granting habeas relief unless the state-court decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law,”

(d)(1), or

“was based on an unreasonable determination of the facts,”

§ 2254(d)(2). Under this

39 deferential standard, a state-court decision “must be objectively unreasonable, not merely

wrong; even clear error will not suffice.” Virginia v. LeBlanc,

(2017)

(internal quotation marks omitted). In other words, “a state prisoner must show that the

state-court’s ruling . . . was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Richter,

.

This standard is intentionally “difficult to meet,” stopping just “short of imposing a

complete bar on federal-court relitigation of claims already rejected in state proceedings.”

. The reason is plain: Federal habeas review of state criminal convictions is

highly intrusive.

; see Williams v. Taylor,

(2000). It not only

“disturbs the State’s significant interest in repose for concluded litigation” but also

“frustrates both the States’ sovereign power to punish offenders and their good-faith

attempts to honor constitutional rights.” Richter,

(internal quotation marks

omitted). After all, state courts are just as competent to adjudicate constitutional claims as

we are, “[e]specially where a case involves such a common claim as ineffective assistance

of counsel under Strickland—a claim state courts have now adjudicated in countless

criminal cases for [over] 30 years.” Burt v. Titlow,

(2013). AEDPA,

therefore, “further[s] the principles of comity, finality, and federalism” by requiring

deference to state courts in all but the most exceptional circumstances. Williams, 529 U.S.

at 436; see Richter,

(describing habeas corpus as “a guard against extreme

malfunctions in the state criminal justice systems” (internal quotation marks omitted)).

40 Because Witherspoon asserts ineffective assistance of counsel, his claim comes to

us encased in an additional layer of deference. See Owens v. Stirling,

(4th Cir. 2020). To establish ineffective assistance under Strickland, a defendant must

show that counsel’s performance “fell below an objective standard of reasonableness” and

that there was “a reasonable probability that . . . the result of the proceeding would have

been different” absent counsel’s alleged deficiencies. Strickland,

. In

reviewing a Strickland claim, we must “indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.”

. That

presumption requires us “not simply to give the attorneys the benefit of the doubt, but to

affirmatively entertain the range of possible reasons . . . counsel may have had for

proceeding as they did.” Pinholster,

(alteration and internal quotation

marks omitted).

While “‘[s]urmounting Strickland’s high bar is never an easy task,’ it is ‘all the more

difficult’ to establish ‘that a state court’s application of Strickland was unreasonable . . .

under § 2254(d).’” Owens,

(alterations in original) (quoting Morva v.

Zook,

(4th Cir. 2016)). When viewed through these “dual and

overlapping lenses of deference,”

(internal quotation marks omitted), “the question is

not whether counsel’s actions were reasonable” but “whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard,” Richter,

(emphasis added).

41 III.

Witherspoon comes nowhere close to satisfying the “doubly deferential” standard

of review we must apply to a Strickland claim evaluated under AEDPA. Knowles v.

Mirzayance,

(2009). The majority’s contrary conclusion contravenes

this standard for at least four different reasons, any one of which is enough to leave the

state court’s decision undisturbed and affirm the denial of habeas relief.

A.

The majority’s first and most obvious mistake is the one on which it hangs its entire

analysis of Strickland’s performance prong: that counsel’s “attempt[]” to object to the trial

court’s stand-up order was instead “failure” to object. Supra, at 24. Indeed, the majority

claims, the state PCR court “cannot be interpreted as . . . finding that [counsel] actually

objected.” Supra, at 23.

The majority’s premise is wrong. The PCR court’s finding that counsel “attempted”

to object to the stand-up order absolutely can be—and should be—read as a finding that

she “actually objected” but was interrupted. The PCR court said exactly that at the close

of the hearing: “The issue pertaining to . . . the judge requiring the defendant to stand up,

it is clear from the record, from the trial transcript, that [counsel] objected to that.” J.A.

309 (emphasis added). In its written order, too, the PCR court indicated that it believed

counsel did object but “her objections were cut off.” J.A. 43. Ignoring this context, the

majority deliberately overreads the PCR court’s use of the word “attempted” and, in a feat

of linguistic alchemy, transforms the court’s finding that counsel attempted to object into

an admission that she “failed” to do so. Supra, at 23. Nowhere in the record does the PCR

42 court make such a finding. To the contrary, the court determined that counsel “attempted

to object at all appropriate times,” J.A. 44, that her objection to the stand-up order was “cut

off,” J.A. 43, and that there was little else counsel could have done once the trial judge

made his position clear, J.A. 309. Section 2254(e)(1)’s presumption of correctness attaches

to these factual finding by the PCR court. And those findings are amply supported—

certainly they are not clearly and convincingly rebutted, see

(e)(1)—by

the record evidence here. See, e.g., J.A. 291 (counsel testifying that her “statement was cut

off”); J.A. 292 (counsel testifying that she “did attempt to object” but was “shut down

pretty instantly”); J.A. 299 (counsel agreeing that she “did object to” the stand-up order

but was “cut off”).

With the PCR court’s true (and presumptively correct) factual findings in mind, the

question becomes whether its application of Strickland was objectively unreasonable when

it decided that counsel’s cut-off objection did not amount to deficient performance. The

majority says yes, apparently because it believes counsel’s cut-off objection was

insufficient to preserve the stand-up issue for appeal. See supra, at 24–25. Even granting

the majority’s unexplained assumption that appellate preservation is the standard by which

to judge whether an objection was constitutionally deficient, 1 the law surrounding the

1 For purposes of argument, I will assume—as do the parties and my colleagues in the majority—that the correct measure by which to assess counsel’s performance for Strickland purposes is to equate an insufficiently preserved objection with deficient performance. Not all courts agree with this approach. See, e.g., Woodfox v. Cain,

(5th Cir. 2010) (rejecting ineffectiveness claim where counsel’s “attempt to object,” though deemed “insufficient to preserve error” by the state appellate court, made it “apparent that counsel was not simply sitting idly by”). Here, too, one might reasonably (Continued)

43 preservation of trial objections is not as cut-and-dry as the majority’s analogy to a river and

its banks would suggest. See supra, at 24.

South Carolina courts and their federal counterparts routinely recognize that

incomplete or interrupted objections can constitute substantive, preserved objections in

some cases. Consider, for example, the South Carolina Supreme Court’s decision in State

v. Ross,

(S.C. 1978). The attempted objection there read as follows:

[PROSECUTOR]: Did you ever try to break it off with her?

[WITNESS]: Yes, I did.

[PROSECUTOR]: And what happened?

[DEFENSE]: Your Honor, I don’t know what we’re trying.

THE COURT: We’re trying a murder case.

[DEFENSE]: Yes, sir, but he’s going into . . .

THE COURT: A relationship between the State’s witness and the Defendant, which I think is relevant, if he doesn’t get into too many true confessions.

Ross,

. While conceding that defense counsel “did not clearly set forth

the basis of his objection” in this exchange with the judge, the state Supreme Court

nevertheless considered the error preserved because the trial judge may have “interrupted

the attempted explanation.”

. In so reasoning, the court specifically “decline[d]

to hold that, in order to preserve an objection, when the judge begins to speak[,] counsel

must try to speak over him.” Id.; see Allegro, Inc. v. Scully,

(S.C.

conclude that regardless of whether counsel’s attempted objection was enough to preserve the stand-up issue for appeal, her performance was not outside the bounds of Strickland competence because, for example, her objection was heard by the trial judge.

44 2016) (“The utility of [preservation] rules would be grievously undermined were we to

construe them to require futile additional argument after the trial judge has made his

position clear.”), abrogated on other grounds by Hall v. UBS Fin. Servs. Inc.,

(S.C. 2021).

This approach comports with the preservation rules our Court has observed. See

United States v. Swaim,

(4th Cir. 1981) (“If a trial court wishes to

interrupt and rule on an incomplete objection . . . the defendant may raise on appeal the

objections which were apparent at the time the objection was interrupted by the trial

court.”). The Fifth Circuit, too, has held that unexplained objections may still be preserved

when a “court ‘cut[s] off’ counsel’s attempts to respond by interrupting her and overruling

her objections mid-sentence.” United States v. Salazar,

(5th Cir. 2014).

In circumstances like these, an attorney may be “‘entitled to believe that further explanation

would not be welcomed or entertained by the [trial] court.’”

(quoting United States v.

Mendiola,

, 260 n.2 (5th Cir. 1994)); accord Mendiola,

n.2

(finding an objection preserved when the court ruled on it before counsel had an

opportunity to explain it fully).

At a minimum, then, the caselaw suggests that “fairminded jurists could disagree”

on whether counsel’s attempted objection to the stand-up order was sufficient to preserve

the argument. Richter,

. The majority’s only response is to quarrel with

the possibility that any jurist could read this record as suggesting that an objection was

raised, interrupted, and ruled on by the trial judge. That reading is unreasonable, the

majority tells us, because the “plain meaning” of the words used in counsel’s exchange

45 with the judge—“I would, Your Honor, but . . .”—clearly shows that her attempt to object

was hollow and qualified. Supra, at 23–24. The majority reads too much into a court

reporter’s transcription of five words with broad and variable colloquial meaning, asking

us “to parse those words ‘as though we were dealing with the language of a statute.’” Ford

Motor Co. v. Mont. Eighth Jud. Dist. Ct.,

(Gorsuch, J., concurring)

(quoting Reiter v. Sonotone Corp.,

(1979)). And it does not even

entertain the possibility that something other than “I choose not to”—perhaps an

explanation like, “I need a moment to confer with my client”—might have followed the

ellipses here.

Worse, in concluding that the only interpretation of this interrupted objection is its

own, the majority misses the point of AEDPA. It may be true that counsel’s “conditional”

language casts doubt on the prospect that a more forceful or unambiguous objection would

have been forthcoming absent the judge’s interruption. Supra, at 23–24. But that does not

mean the PCR court was objectively unreasonable in concluding otherwise. When it found

that counsel appropriately “attempted to object,” the state PCR court could have reasoned

that counsel’s objection was adequate because the grounds for it were so “apparent from

the context” that further explanation was unnecessary. S.C. R. Evid. 103(a)(1); see Swaim,

. It could have decided that such explanation was especially unnecessary

in this case because the judge had already “made his position clear,” Allegro,

, by deeming the jury’s request “appropriate” and immediately ordering Witherspoon

to comply, J.A. 246. And the PCR court could have surmised that, faced with these

circumstances, counsel was “entitled to believe that further explanation would not be

46 welcomed” by the trial judge. Mendiola,

n.2; see Ross,

.

Whether the PCR court erred, or even clearly erred, in making these judgment calls

is not the relevant question—although even under that standard, the question is a close one.

Rather, AEDPA limits our inquiry to whether the state court’s decision “is so erroneous

that there is no possibility fairminded jurists could disagree” about it. Nevada v. Jackson,

, 508–509 (2013) (internal quotation marks omitted). Plainly it is not. Every

previous judge to have considered this issue has determined that counsel did not fail to

object but rather attempted to object then was cut off and overruled. The same judges have

then concluded that, because counsel objected, there was no Strickland error. The majority

concludes that the only reasonable decision is its own, but it can do so only by contorting

the PCR court’s factual finding to mean the opposite of what it says. 2 That approach cannot

be squared with AEDPA.

B.

Because Witherspoon’s failure-to-object premise lies at the heart of his habeas

petition, a conclusion that the PCR court was not unreasonable in determining that counsel

2 In a footnote, the majority maintains that, even if counsel made “a bona fide objection,” she still performed deficiently because the majority is “confident” that a competent attorney “would have made her objection plain and unmistakable.” Supra, at 29 n.9. Since “plain and unmistakable” is not the test for whether a trial objection has been adequately preserved under South Carolina law, it is not clear why we should use that exacting measure to judge whether counsel has met the “minimal standard of competence” for attorneys practicing in that community. Hinton v. Alabama,

(2014). And the Supreme Court has instructed that a federal court’s “confidence in the result it would reach under de novo review” is not the standard for measuring unreasonableness under § 2254(d). Richter,

.

47 did object should end the case. Yet, even accepting Witherspoon’s erroneous premise that

counsel failed to object, there are additional reasons to reject his claim under AEDPA and

Strickland’s “double-deference standard.” Morva,

. This is because

Strickland’s “strong presumption of competence” requires that we “affirmatively entertain

the range of possible reasons . . . counsel may have had for proceeding as [she] did,”

Pinholster,

(emphasis added) (internal quotation marks omitted),

regardless of whether those reasons were “brought to our attention” by the PCR court,

supra, at 28. Cf. Richter,

(holding that even summary rulings are entitled

to AEDPA deference). Then we must ask whether “no fair-minded jurist could find one

of those reasons to be sound trial strategy.” Valentino v. Clark,

(4th Cir.

2020). As the Supreme Court instructs, this is an “objective” inquiry that does not depend

on counsel’s “subjective state of mind.” Richter,

.

Here, the record supports at least two strategic reasons for counsel’s decision not to

object or to pursue the objection more forcefully once the judge deemed the jury’s stand-

up request “appropriate.” J.A. 246. At the PCR hearing, counsel herself provided one such

explanation: She did not want the jury to draw a negative inference from any apparent

effort to defy its request. In fact, when asked directly whether that concern had crossed

her mind, counsel agreed with Witherspoon’s PCR attorney that she was “in that when-

did-you-stop-beating-your-wife situation, because if he doesn’t stand up, the jury is going

to draw negative inferences from that.” J.A. 292; cf. Daugherty v. Dugger,

(11th Cir. 1988) (finding attorney’s performance reasonable under Strickland where

his decision stemmed from a “fear[]” of “the negative inference the jury might draw”).

48 A decision not to trigger this negative inference may have appeared all the more

reasonable in view of counsel’s strategy, during trial, to play up the fact that Witherspoon’s

face was not visible on the blurry video. Counsel repeatedly affirmed that one of her

principal trial strategies was to emphasize the button-cam video, which “was very helpful

to us” because it did not capture “a great depiction” of the suspect and was “part of the

reason [Witherspoon] wanted to go to trial” in the first place. J.A. 277. As counsel

explained, “[y]ou don’t see Mr. Witherspoon’s face on that video,” even though “[t]he

officer’s face was clear as they were adjusting the video for the buy.” J.A. 277–278; see

J.A. 278 (counsel agreeing with Witherspoon’s PCR attorney that “you couldn’t really see

him, you couldn’t see his face” on the video). In counsel’s judgment, “[t]he video in this

case was not everything that the State probably should have had. It was probably the one

bright shiny spot we had in the case . . . [because] my client’s face wasn’t clearly visible

on the video.” J.A. 277; see J.A. 278–279 (“Actually, it was helpful that you couldn’t see

anything well.”); see also J.A. 42 (PCR court crediting counsel’s testimony that “the video

did not seem detrimental, as it did not show Applicant’s face with any clarity”). Counsel

could have reasonably believed that the potential downside of opposing the jury’s request

and subsequent stand-up order outweighed the possibility that viewing the blurry, pixelated

image of the suspect in the side-view mirror would harm Witherspoon’s case. See J.A. 290

(counsel recalling that the video was even less clear “when you blow it up”).

A second legitimate explanation would be that counsel did not want “to antagonize

the judge or jury” by persisting with an objection the judge had already shut down.

Melendez-Diaz v. Massachusetts,

(2009); see J.A. 299 (counsel

49 testifying that objecting more vigorously may “have gotten [her] contempt”). This concern

may have seemed especially palpable “from counsel’s perspective at the time,” Strickland,

, given that many of her previous objections were cut off “forceful[ly],”

J.A. 298, and things got “a little heated” with the judge just thirty minutes earlier during

their exchange about the Allen charge, J.A. 288. The majority discounts this rationale as

inconsistent with “zealous representation,” supra, at 28, but overlooks the fact that holding

one’s tongue for fear of irritating the judge or jury can be its own form of zealous

advocacy—especially when it comes at the comparatively low price of re-attempting an

objection that was once denied and would likely be denied again. More importantly, in

disdaining counsel’s efforts “to avoid a sparring match with the judge,” supra, at 28, the

majority seems oblivious to the fact that fairminded jurists can and do disagree about this

strategy. See, e.g., Leavitt v. Arave,

(9th Cir. 2011) (explaining that “[a]

decision to avoid annoying the judge [by renewing a previous motion] falls well within

Strickland’s range of reasonableness”); Bennett v. Angelone,

(4th Cir.

1996) (“As other courts have noted, refraining from objecting to avoid irritating the jury is

a standard trial tactic.”).

These “possible reasons” for counsel’s decision not to object, Pinholster,

(internal quotation marks omitted), demonstrate that declining to object or to object

more forcefully could have been the product of rational trial strategy in this circumstance.

“If this case presented a de novo review of Strickland,” that prospect alone “might well

suffice to reject the claim of inadequate counsel.” Richter,

. But our review

here is even more constrained. Because there is at least a “reasonable argument that

50 counsel satisfied Strickland’s deferential standard,”

, the PCR court’s conclusion

that counsel’s conduct was not deficient but instead in line with “a valid and clearly

articulable trial strategy,” J.A. 44, cannot be unreasonable. For this independent reason,

too, the majority errs in granting habeas relief.

C.

Yet there are more layers of error in the majority’s decision. Even assuming that

counsel’s cut-off objection should be considered a failure to object, and even assuming that

declining to object could not be considered sound trial strategy by any fairminded jurist,

the majority is still wrong to find the PCR court’s decision objectively unreasonable,

because a stand-up demonstration of the kind Witherspoon was asked to make does not

unambiguously qualify as objectionable “new evidence” under the caselaw.

The cases the majority cites certainly say nothing of the sort. See supra, at 25. Four

of the five cases involved exhibits that were never admitted into evidence but were

erroneously sent to the jury room during deliberations. See United States v. Lentz,

, 217–219 (4th Cir. 2004); United States v. Barnes,

(4th Cir.

1984); State v. Rogers,

, 620–621 (S.C. 1914); State v. Hill,

(S.C. Ct. App. 2011). In the fifth case, the South Carolina Supreme Court actually

approved of the jury reviewing a transcript that was not entered into evidence while it

listened again to the transcribed phone call. See State v. Winkler,

(S.C. 2010). Although the court described this presentation as “mirror[ing] the way in

which the evidence was presented at trial” in that case,

it did not mandate that all

evidentiary presentations during jury deliberations “must” do so, supra, at 25. In short, the

51 majority fails to cite a single case supporting its premise that the stand-up order presented

the jury with new evidence during deliberations in violation of South Carolina law.

Witherspoon, meanwhile, acknowledges that courts have reached different

conclusions on this question. He assembles a handful of cases from other jurisdictions to

buoy his position, each finding that a defendant’s display of some physical characteristic

after the close of evidence constitutes impermissible new evidence. See, e.g., United States

v. Santana,

, 63–64 (1st Cir. 1999) (display of defendant’s ears, which were

covered by headphones throughout the trial, qualifies as new evidence); Caver v. State,

(Ala. Crim. App. 2010) (display of defendant’s arms, which had not been

visible during trial, qualifies as new evidence); Lockett v. State,

, 921–922

(Fla. Dist. Ct. App. 2020) (display of the left side of defendant’s face “with his hand

covering his cheek” qualifies as new evidence). But even Witherspoon admits that some

courts have approved of procedures like the stand-up order here because they do not create

new evidence. For example, in Washington v. United States,

(D.C. 2005),

which Witherspoon himself cites, the D.C. Court of Appeals held that “the jury was free to

examine the facial characteristics of [the defendant] during its deliberations”—“up close,

and at multiple angles, even though he did not testify at trial and was not shown to the jury

in a similar fashion during the trial”—“and that this demonstration did not constitute ‘new

evidence[.]’” Id. at 580–581. By the same token, a number of courts, including our own,

have determined that the act of magnifying existing evidence for the jury’s view during

deliberations does not create new evidence “‘where such action involves merely a more

critical examination of an exhibit.’” United States v. Holmes,

(4th

52 Cir. 2002) (quoting United States v. Beach,

(4th Cir. 1961)); see also

United States v. George,

(9th Cir. 1995) (affirming the denial of a

motion for new trial because “[n]o ‘new evidence’ resulted from the jurors’ use of a

magnifying glass to examine the fingerprint cards and gun”).

These cases alone decide the question. Whether we would, on de novo review, agree

with Witherspoon that standing next to an enlarged image of the suspect qualifies as “new

evidence” is not the inquiry under AEDPA. As the variety of caselaw shows, reasonable

jurists do disagree about whether physical displays at the jury-deliberation stage amount to

new evidence, especially where the feature to be displayed has been visible throughout

trial. Certainly it is not “beyond debate,” Valentino,

, whether counsel

should have recognized the stand-up display as new evidence, particularly when courts in

South Carolina have not previously addressed the situation. See Richter,

(“The Strickland standard is a general one, so the range of reasonable applications is

substantial.”).

D.

Finally, fairminded jurists could even disagree about whether counsel’s conduct

prejudiced Witherspoon. The majority again sidelines the relevant question, which is not

merely whether the physical display swayed the jury’s decision, see supra, at 32, but

whether a more strenuous objection by counsel would have changed the judge’s mind about

issuing the stand-up order in the first place. See, e.g., Pryor v. Norris,

(8th Cir. 1997) (“Since the trial judge would not have sustained the objection even if it had

been made at a timely manner, the appellant is unable to show that his counsel’s failure to

53 object . . . had an adverse effect on the outcome of the trial.” (internal quotation marks

omitted)); United States v. Smith,

, 273–274 (4th Cir. 2012) (rejecting

ineffectiveness claim “for lack of prejudice” because the “district court has made clear that

. . . [it] would have overruled the objection”).

Although such a prediction is rarely free from doubt, it certainly was not

unreasonable for the South Carolina PCR court to conclude that Witherspoon had not

demonstrated a substantial likelihood that a more forceful objection would have prevented

the stand-up order. See Pinholster,

(explaining that a “reasonable

probability” for purposes of Strickland’s prejudice prong “requires a substantial, not just

conceivable, likelihood of a different result” (internal quotation marks omitted)). For one

thing, the record suggests that the trial judge’s mind was made up. See J.A. 292 (counsel

testifying that the “decision [to issue the order] was made when the jury requested it”).

Indeed, counsel testified that she believed pressing her objection would not have

“change[d] anything. I would have gotten contempt, [Witherspoon] would still stand up

and I think we -- it would have played out the same way.” J.A. 299. For another, South

Carolina courts have given no indication that counsel’s attempted objection was

meritorious. Although the parties cite competing decisions from other jurisdictions, the

dearth of South Carolina authority on this score leaves considerable uncertainty about

whether the judge would have sustained such an objection.

The same uncertainty in the law hampers any attempt to assert that, had an objection

preserved the issue, there could be no disagreement that a South Carolina appellate court

was substantially likely to rule in Witherspoon’s favor on appeal. See supra, at 33 n.10

54 (positing, de novo, a “reasonable probability” that Witherspoon would have prevailed on

appeal, without applying AEDPA’s deferential standard). Nor was that theory tested here:

Neither in his pro se brief nor in his attorney’s brief on direct appeal did Witherspoon

suggest the trial judge erred in issuing the stand-up order. 3 Under these circumstances, the

state PCR court was not objectively unreasonable in concluding that Witherspoon “failed

to prove he was in any way prejudiced” by counsel’s attempted objection. J.A. 44.

IV.

We are neither the first court, nor the one best positioned, to review Witherspoon’s

claim of ineffective assistance. But we are the first to grant relief on it. In so doing, the

majority commits at least four different errors—the recognition of any one of which is

enough to affirm the district court’s judgment denying habeas relief. After substituting its

own factual finding for that of the state PCR court, the majority discounts any possible

strategic reason for counsel’s choice about how to best represent her client and then

proceeds on the entirely unfounded assumption that South Carolina courts would adopt

Witherspoon’s view of the law. Because I do not think any of these choices can be squared

with the deferential standards to which AEDPA and Strickland bind us, I respectfully

dissent.

3 The majority speculates that the reason neither Witherspoon nor his attorney raised the stand-up issue on direct appeal, and the reason the South Carolina Court of Appeals failed to catch that issue in its Anders review, is that they all believed it was not adequately preserved for appeal. See supra, at 29–30 n.9. This conclusion ignores an explanation that is at least as obvious, if not more so: that no one considered the stand-up order to be an error at all.

55