USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 1 of 76

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6

QUINCY J. ALLEN,

Petitioner - Appellant,

v.

MICHAEL STEPHAN, Warden, Broad River Correctional Institution,

Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Donald C. Coggins, Jr., District Judge. (0:18-cv-01544-DCC-PJG)

Argued: September 22, 2021 Decided: July 26, 2022

Before GREGORY, Chief Judge, HARRIS, and RUSHING, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Harris joined. Judge Rushing wrote a dissent.

ARGUED: Aren Kevork Adjoian, FEDERAL COMMUNITY DEFENDER OFFICE, Philadelphia, Pennsylvania, for Appellant. Melody Jane Brown, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. ON BRIEF: Joshua Snow Kendrick, KENDRICK & LEONARD, P.C., Greenville, South Carolina; E. Charles Grose, Jr., GROSE LAW FIRM, Greenwood, South Carolina, for Appellant. Alan Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 2 of 76

GREGORY, Chief Judge:

Quincy Allen was convicted of two capital murders and sentenced to death in a

South Carolina state court. During the penalty phase, the government and defense experts

agreed that Allen suffered persistent childhood abuse; they also agreed that he had at least

one mental illness—rumination disorder—and disagreed as to another—schizophrenia.

Yet, the sentencing judge concluded that “Allen was [not] conclusively diagnosed as

mentally ill” and found no “conclusive proof of mitigating circumstances.” Allen

exhausted his state court direct appeal and post-conviction remedies in seeking to overturn

his death sentence. He then filed the instant federal petition pursuant to

,

raising several claims. The district court dismissed his petition, and Allen appealed.

We granted a certificate of appealability on five issues, including whether the

sentencing judge committed constitutional error by “[(i)] fail[ing] to find that any

mitigating circumstance had been established and [(ii)] us[ing] an impermissibly high

standard for determining whether [] Allen suffered from mental illness.”

As explained below, we conclude that the state court’s conclusion that the

sentencing judge “considered Allen’s mitigation evidence as presented” was an

unreasonable determination of the facts and its conclusion that the sentencing judge gave

“proper” consideration was contrary to clearly established federal law. Because we have

grave doubt that the state court’s errors did not have a substantial and injurious effect, we

reverse and remand.

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I.

A.

Quincy Allen’s childhood was marked by severe abuse and neglect. He also has a

lengthy history of mental health issues, including major mental illness diagnoses and a

history of commitments. Because both forms of mitigating evidence are important to

resolution of his claims, we go into some detail about them here.

Allen is the product of a short-term relationship between a 19-year-old soon-to-be

deployed military man who “never really thought about [the] family thing” and a woman

who confesses “never bonded” with any of her five children. S.J.A. 1804, 1807, 1809,

1819. “[P]atterns of intergenerational abuse and neglect go back at least to [Allen’s]

maternal great-grandfather’s large and chaotic family and bear strong similarities to the

abuse and neglect” that branded Allen’s childhood. S.J.A. 1804. 1

Allen’s early hospital emergency room and pediatric notes show an ingestion of a

bottle of perfume (twelve months of age) and a burn on his foot that his mother said came

from a babysitter (fifteen months of age). S.J.A. 1807. At nineteen months, Allen was

hospitalized for a week after an untreated fever progressed to pneumonia. Noting signs of

medical neglect, emergency room personnel referred Allen’s case to Protective Services.

S.J.A. 1807–08.

1 The quoted testimony in this subsection is based on the report of social worker Deborah Grey and is undisputed unless otherwise noted. This report is part of the state court record and is located on the district court docket (18-cv-01544) under ECF No. 65-24. 3 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 4 of 76

Allen witnessed and suffered physical abuse throughout his childhood as well. His

earliest memories are of when his mother was married to his stepfather. S.J.A. 1808. He

remembers his stepfather beating him and his mother.

On one occasion, Allen’s

stepfather entered his room, picked up a gun from the floor and returned to another room

where he pistol-whipped Allen’s mother. Id.; J.A. 1262. During another incident, while

in the backyard, Allen’s stepfather held Allen up, placed a gun to his face, aligned the gun

site with Allen’s eye, and pulled the trigger—his stepfather needed “target practice.” J.A.

294; S.J.A. 1808. When Allen was three, his stepfather hit him so hard that he fractured

Allen’s tibia. S.J.A. 1808. About one year later, his mother got a restraining order against

Allen’s stepfather; his stepfather found them, attacked his mother with a knife and hammer,

and repeatedly broke into their home and stole things. S.J.A. 1809. Allen hid under the

bed with a telephone so he could call 911 if his stepfather showed up.

By this point,

Allen’s mother had four children and all of them were “accidents,” according to Allen’s

stepfather. S.J.A. 1810. He said Allen’s mother would have sold Allen if she could have

made money off him.

Allen’s grade school career would include fifteen school changes before it ended.

S.J.A. 1811. When Allen was elementary school-age and did something wrong, his mother

forced him into a dark closet.

She also punished him by pushing him down, then

kicking or stomping on him, or forcing him to sleep in the bathroom with no clothes, pillow,

or blanket. S.J.A. 1815–16. She also stripped him naked, used an extension cord to tie

him up to the end of the bunk beds “kind of like Jesus,” and beat him with a belt, switch,

or her hands. S.J.A. 1811, 1815. When she got tired, she walked off to rest awhile and

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eventually came back to beat him some more. S.J.A. 1811. Allen’s aunt said that he

“stayed . . . [getting] beat half to death,” sometimes for insignificant transgressions. S.J.A.

1816. On one occasion, she threw him into a large trashcan—“the kind with wheels and a

swing shut lid” that “trash men pick up with a machine and dump over,” Allen described.

S.J.A. 1811. She shut the lid on him.

At some point during his childhood, after seeing

a television show during which a guy survived being in ice cold water in Alaska by

convincing himself that the water was warm, Allen decided that pain is all in the mind.

S.J.A. 1811–12. As an adult, he told some friends this and they beat him with a wire

hanger: “[He] didn’t feel it.” S.J.A. 1812.

During this time, Allen’s mother began denying Allen and his siblings food.

She stacked and stored the food by type, so she immediately knew if something went

missing; she marked all containers, so she could tell if food was removed; and she punished

Allen by withholding food for several days in a row. S.J.A. 1812, 1815–16. According to

his aunt, Allen always looked “scrawny and half starved.” S.J.A. 1812. He stole Kool-

aid, cookies, and Little Debbie’s snacks from nearby stores, and hoarded food.

During

family gatherings, he ate so much that he threw up.

And a neighbor once observed

Allen and his siblings drinking rainwater as it came down the gutter. J.A. 299. Around

the second grade, Allen began ruminating. S.J.A. 1812. About half an hour after eating,

he would push his food back up by contracting his stomach muscles, fill his mouth until

his cheeks puffed out, re-chew the food, swallow it, and then bring it up again and again.

S.J.A. 1812–13. He smelled of vomit all the time. J.A. 308. Allen states he continues to

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do this daily; it’s a compulsion. S.J.A. 1813. “Now its just like getting up in the morning,”

he said.

Allen also experienced a highly unstable home environment, marked by his mother

locking and kicking him out of the house as early as second grade and attempting to give

up custody of him. When Allen was in the second grade, his mother warned him to come

straight home from school.

One day, he went to a friend’s house instead.

When

he got home, his mother put him in the car, drove him to Social Services, and placed him

in foster care.

His first set of foster parents hit their own kids with pots and pans.

Eventually, his mother signed over custody to a family friend, with whom Allen lived for

about half a year.

At the beginning of third grade, Allen returned home and, when he

was in fourth grade, Allen’s mother began kicking him out of the house.

She would

open the door, tell him to get out, and he slept outside in whatever he happened to have on.

Allen ran away from home with his sister in the fifth grade.

They left immediately

after school and kept running until night hit.

A sheriff took them home.

Allen’s

mother was not happy to see him back: She said, “[i]f you run away again, leave your

sister here.”

And she yelled a lot, saying things like, “I hate you. When you’re 18,

you’re getting out of this house.” S.J.A. 1815.

In the sixth grade, Allen’s mother locked him out overnight on the first of what

would become countless occasions. S.J.A. 1816. He would sleep on the porch, where he

feared the neighborhood dogs might attack him.

By this time, Allen’s mother had also

thrown a chair at him, shoved him against a stove, tried to hit him with a hammer, and

choked him with a tie until he fainted. S.J.A. 1818. His mother, his siblings, and the

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neighborhood kids beat, teased, and picked on Allen, calling him “Alien,” “Waterhead,”

“Mr. Spock,” and “Elephant Ears.” S.J.A. 1814-15, 1822. In the seventh grade, he got

caught with a knife on school property. S.J.A. 1817. On a different occasion, he brought

a large glass bottle to school intending to go after one of his bullies.

He was eventually

suspended, taken to court, and sent to a juvenile correctional center for over a month.

He then lived in a group home for two weeks; with his uncle in Rock Hill, South Carolina

for half a year; with his father in Georgia for over three months; and eventually made his

way back to his mother’s home. S.J.A. 1819.

Allen lived with his mother for half of ninth grade. S.J.A. 1820. But the instability

and chaos persisted. She continued to withhold food and beat him as he stood naked,

holding onto the back of the kitchen chair.

He moved up to Colorado to live with his

father for the following year.

Halfway through the tenth grade, he again returned to

his mother’s home. S.J.A. 1821. During this time, Allen’s mother continued her tradition

of requiring her kids to come home immediately after school and wait in the driveway or

walk around the house until she eventually arrived home (even in the winter).

She also

installed motion detectors to ensure the kids remained in the basement, never went upstairs,

and did not go outside without her permission. S.J.A. 1821, 1823. Eventually, Allen went

to live with his uncle again but does not remember why because, by that point, his mother

had thrown him out of the house many times for many reasons. S.J.A. 1821. But just under

one year later, he returned to his mother’s home, where she continued the pattern of

repeatedly kicking him out, rendering Allen homeless.

During periods of

homelessness, Allen slept in bushes, a friend’s treehouse, or on the McDonald’s

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playground after closing each day—all while trying to keep up with school assignments.

J.A. 269–70; S.J.A. 1829. His clothes remained filthy, and teachers found his body odor

unbearably overwhelming. S.J.A. 1830. One of Allen’s friends said that, eventually, “the

light seemed to go out” in him. S.J.A. 1831. He would not look at you, showed no emotion

on his face or in his voice, began to mumble to himself, and started setting fires for no

reason, including using gasoline to burn a smiley face onto someone’s lawn. S.J.A. 1831–

32.

While enduring this abuse, Allen began having mental health problems. By 2002,

he had been hospitalized seven times and had received various diagnoses. The mental

health challenges began at a young age. As mentioned earlier, he regularly engaged in the

practice of ruminating, beginning in second grade. In sixth grade, he saw a mental health

professional fourteen times during the academic year and was diagnosed with oppositional

defiant disorder. S.J.A. 1817. During his senior year, Allen’s mother finally took him to

a dentist to address his severely eroded, chipped, and discolored teeth. S.J.A. 1825. The

dentist referred Allen to an internist, who formally diagnosed Allen with rumination

syndrome, which the internist described as “[a] diagnosis [] rarely made in adolescence

and adults and [] not easy to treat.”

“[I]t was going to take extraordinary effort on

[Allen’s] part to overcome this longstanding problem,” the internist explained at the time,

and treatment would include “counseling[] [and] possible psychopharmacologic

intervention.”

The internist referred Allen to a child psychiatrist, Dr. Richard Harding.

During

his first appointment with Dr. Harding, Allen admitted to ruminating multiple times a day

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for about the last 10 years.

Dr. Harding noted that “this obsessive behavior is more

difficult to treat the longer it has existed and the more frequent it occurs.” S.J.A. 1826. “I

am less than optimistic about the prognosis in this case,” he wrote back then.

But still,

he started Allen on Prozac, which could “decrease the compulsivity.”

Allen and his

mother returned about one month later, at which time she asked when Allen could stop

taking the antidepressants and “do it on his own.”

Dr. Harding “tried to explain that

this was a long-term process and will take an extended period of time to be helpful, and []

may not be [helpful at all].”

“Mother is very demanding and difficult,” he noted.

About three weeks later, Allen reported to Dr. Harding that he was doing well but, soon

after, Allen heard a voice for the first time.

The voice said: “I want you to kill a lot of

people at your school tomorrow.”

It “freaked me out,” Allen explained, “but I also

thought it was ridiculous because I didn’t even have a gun.”

Between the ages of 17 and 20, Allen cycled in and out of psychiatric hospitals

seven times. Nine days after Allen’s last visit with Dr. Harding, Allen’s mother threw him

out of the house. S.J.A. 1827. He returned, busted windows and threw furniture, and made

his way to the attic where the police observed him eating insulation. 2 J.A. 339; S.J.A.

1827. He was referred to an inpatient psychiatric facility, marking his first commitment.

J.A. 339–41. At the end of his two-day stay, he was discharged with diagnoses of

depressive reaction, atypical eating disorder, and identity disorder of adolescence, and

given a prescription for Prozac. S.J.A. 1827.

2 Allen stated he got some insulation in his mouth as the police tried to pull him out of the attic. J.A. 534. 9 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 10 of 76

His second commitment came about one week later, after his mother kicked him out

again. J.A. 343. He went to a Wal-Mart, stole Tylenol, and ingested it.

When he

arrived at the emergency room, hospital staff administered charcoal and contacted his

mother, who refused to come and refused to take him home. J.A. 268. Though he was

initially involuntarily committed, he voluntarily committed himself on his 18th birthday.

J.A. 267–68. His progress notes described Allen as having “no coping skills,” a “flat

affect,” and “zero insight.” S.J.A. 1828–29. He was discharged two weeks later with

diagnoses of atypical eating disorder, major depression-nonpsychotic, and identity disorder

of adolescence. J.A. 269; S.J.A. 1829.

When Allen was 18 and a half, he climbed up onto a maintenance platform of a road

sign over the interstate. J.A. 349–50. He threatened to commit suicide by jumping off the

overpass. J.A. 2169. Emergency personnel reached him using a cherry picker; once inside

the cherry picker basket, Allen refused to exit because he was “comfortable in it.” J.A.

349–50. He rode to the emergency room in the basket and was committed for the third

time. J.A. 350. Upon discharge eight days later, his final diagnosis was adjustment

disorder with depressed mood. S.J.A. 1834.

Allen’s fourth commitment occurred one month later, when he brought himself to

the hospital expressing suicidal ideation. J.A. 359–60; S.J.A. 1834. During this stay, he

threatened staff members and received the antipsychotic Haldol and the antianxiety

medication Ativan. J.A. 361–62. When a social worker contacted Allen’s mother, she

demanded the social worker not contact her again and made clear that Allen could not come

live with her. J.A. 362. After about three weeks of hospitalization, he was diagnosed with

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adjustment disorder with depressed mood, history of marijuana abuse, personality disorder

not otherwise specified, and was discharged to live at the Salvation Army. J.A. 2169;

S.J.A. 1835.

Two months later, Allen was hospitalized a fifth time, at which time he was again

homeless and living out of his car. J.A. 363, 2169; S.J.A. 1834. After wrapping up his

third day on the job at Kroger, Allen was waiting in the video section of the store for a ride.

J.A. 363; S.J.A. 1836. The store manager, thinking Allen was a vagrant, told him to leave.

J.A. 363. Upon learning that Allen worked there, the manager fired him. J.A. 363–64.

Later that night, Allen was found atop the store threatening to jump. J.A. 364. The police

called his mother and, when she arrived a couple of hours later, she laughed and walked

away. S.J.A. 1836. Allen was, again, committed. J.A. 364. During this visit, Allen

declared that he wanted to kill his mother and be the next mass murderer. J.A. 374–75,

378. He was diagnosed with adjustment disorder with depressed mood and personality

disorder not otherwise specified. J.A. 2169.

About one month before his 19th birthday, Allen was discharged to a different

facility for further treatment at his request, marking his sixth commitment.

At the new

facility, staff noted his visual hallucinations, as well as suicidal and homicidal thoughts.

J.A. 381, 384, 391. Four days after he informed staff that he wanted to buy a gun and kill

his family, the hospital decided he had achieved “maximum benefit” and discharged him.

S.J.A. 1838. He was diagnosed with depression and placed on Prozac. J.A. 2169. Upon

discharge, Allen was again homeless. J.A. 399.

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Within a matter of days, he attempted to steal a car from someone’s garage and was

arrested, convicted, and incarcerated. J.A. 399–403. During this period, he was

hospitalized for the seventh time and reported thoughts of going on a murder spree and

hurting everyone who had ever harmed him. J.A. 402–03. These homicidal thoughts

coincided with more serious suicide attempts.

He initially attempted to ingest soap

while he was awaiting trial in the Richland County Detention Center. J.A. 401. After he

was moved to the Department of Corrections, he tried to swallow hoarded bleach, then

attempted to overdose on hoarded antidepressants. J.A. 406–07. He was diagnosed with

major depressive disorder and placed on antidepressants. S.J.A. 1839. Allen remained

incarcerated from October 27, 1998 to August 31, 2000, which was about two months

before his 21st birthday. J.A. 2170.

After his release, Allen returned to live with his mother and worked a variety of

jobs.

He did relatively well for a period of time, until his mother once again threw him

out of her house. J.A. 407–09. Allen then quit his job and became “intensely suicidal.”

J.A. 409. He again attempted suicide by swallowing ammonia capsules and Excedrin pills,

J.A. 411, and later swallowed a box of rat poison,

By 2002, he reported feeling immortal

because of his repeated lack of success in killing himself. J.A. 2170.

B.

At approximately 3:00 a.m. on July 7, 2002, when Allen was 22 years old, he

approached James White, a 51-year-old man lying on a swinging bench in a park located

in Columbia, South Carolina. Allen ordered White to stand and shot him in the shoulder.

After White fell back onto the bench, Allen ordered him to stand back up and shot him

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again. White survived and Allen would later tell the police that he used White as target

practice because he did not know how to shoot his new gun.

Three days later, on July 10, Allen picked up Dale Hall on Two Notch Road in

Columbia during a break from his job at Texas Roadhouse Grill. He drove her to an

isolated cul-de-sac and shot her with a 12-gauge shotgun in the left thigh, shattering her

leg. Hall pleaded for her life; she had kids and they would be motherless. Allen shot her

in the torso. He then dragged Hall down a bank to a wooded area, placed the gun in Hall’s

mouth, and fired his third and final shot. Allen left to purchase a can of gasoline, returned

to douse Hall’s body, and set her on fire. He then made his way back to work to continue

serving the dinner crowd. Later, after police descended on the crime scene, he found a dog

and pretended to walk it atop a bridge that had a good view of the investigatory action.

One month later, on August 8, while working at the restaurant, Allen got into an

argument with two sisters, Taneal and Tiffany Todd. He threatened to slap Tiffany, who

was 12-weeks pregnant, so hard that her baby would have a mark on it. Tiffany’s boyfriend,

Brian Marquis, pulled up to the restaurant, accompanied by his friend Jedediah Harr, who

drove the pair. A confrontation erupted outside, and Allen fired his shotgun into Harr’s

car, attempting to shoot Marquis; Allen missed Marquis, and the bullet struck Harr in the

head. As the car rolled downhill, Marquis jumped out and ran into a nearby convenience

store, where an employee hid him in a cooler. Allen entered the store looking for Marquis

and eventually left; he made his way to Marquis’ home and set the front porch ablaze. A

few hours later, Allen set fire to the car of Sarah Barnes, another Texas Roadhouse

employee. And shortly thereafter, Harr died of the shotgun blast to the head.

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The following day, on August 9, Allen set fire to the car of another man, Don Bundrick,

whom he did not know. Later that evening, Allen went to a strip club in Columbia, where

he pointed his shotgun at a patron. Allen then left South Carolina and drove all the way up

to New York City. On his way back, while in North Carolina, Allen shot and killed two

men at a convenience store in Surrey County. Allen then made his way to Texas, where

police apprehended him on August 14.

Allen confessed to committing the crimes. He began killing people because, while

he was incarcerated, an inmate told Allen that he could get Allen a job as a mafia hit man.

But Allen got tired of waiting for his first assignment and decided to embark on his own

killing spree. He would have killed more people if he could have gotten his hands on a

gun sooner, Allen explained. But, of course, his prior record made that difficult.

C.

Allen first faced prosecution in North Carolina, where he pleaded guilty to two

counts of first-degree murder, two counts of armed robbery, and one count of larceny of an

automobile. See J.A. 113–15. In exchange, Allen received a sentence of life without the

possibility of parole for the murders and terms of years on the remaining charges. See

Although the North Carolina sentence had been agreed upon, both the government and

defense called multiple witnesses at Allen’s three-day sentencing hearing. See

The

North Carolina trial court found that “the evidence is convincing that [] Allen is mentally

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ill” and recommended he receive a psychiatric evaluation, counseling, and treatment upon

entering the Department of Corrections. J.A. 115, 117. 3

The South Carolina proceedings began thereafter. In September 2002, a Richland

County grand jury indicted Allen for two counts of murder, assault and battery with intent

to kill, second degree arson, two counts of third-degree arson, and pointing and presenting

a firearm. J.A. 2535–36. The Honorable G. Thomas Cooper, Circuit Court Judge, presided

over the case and appointed E. Fielding Pringle, April Sampson, Robert Lominack, and

Kim Stevens to represent Allen. See J.A. 120. Two years passed and, on April 5, 2004,

the government filed a Notice of Intent to Seek the Death Penalty. J.A. 1658–59.

Trial was set for Monday, February 28, 2005. About one week prior, on Tuesday,

February 22, Lominack asked Solicitor Barney Giese to meet with Dr. Pam Crawford, one

of the defense’s mental health experts. J.A. 2241, 2243. Pringle had directed Dr. Crawford

to meet with and convince the government that Allen was mentally ill and, thus, that the

government should consider a plea agreement. J.A. 2243. The next day, on Wednesday,

February 23, after refusing initially, Giese agreed to meet with Dr. Crawford. J.A. 2242.

3 The full list of mitigating factors found by the North Carolina trial court is as follows: (i) “[t]he defendant was suffering from a mental or physical condition that was insufficient to constitute a defense, but significantly reduced the defendant’s culpability for the offense”; (ii) “[t]he defendant’s age and maturity or limited mental capacity at the time of the commission of the offense significantly reduced the defendant’s culpability for the offense”; (iii) “[p]rior to arrest or at an earlier stage of the criminal process the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer”; (iv) “[t]he defendant has accepted responsibility for the defendant’s criminal conduct”; (v) “[t]he felony was committed while the defendant was under the influence of mental or emotional disturbance”; and (vi) “[t]he capacity of the defendant to appreciate the criminality of his conduct or conform his conduct to the requirements of law was impaired.” J.A. 102–03. 15 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 16 of 76

That same day, Dr. Crawford met with the government without trial counsel present.

The parties agree that the government declined to strike a deal but encouraged the defense

to meet with the trial judge ex parte to discuss a life sentence. J.A. 2244; see also J.A. 43,

2486, 2498–99.

The next day, on Thursday, February 24, Pringle, Lominack, and Sampson attended

an ex parte meeting with the trial judge. J.A. 2245, 2321. Pringle explicitly and repeatedly

asked the trial judge if he would return a life sentence if Allen pleaded guilty. J.A. 2246–

48. Though the trial judge made no explicit commitments, J.A. 45, 2418, he did (prior to

the ex parte meeting) gift Pringle a book called Ultimate Punishment, which––as the trial

judge later explained––discusses why the death penalty is reserved for the “worst of the

worst.” J.A. 2009–10, 2013. In addition, during the ex parte meeting, the trial judge said

that no judge likes to see the bold, black word “reversed” under his name and one way to

keep that from happening would be to give Allen life. J.A. 2009–10, 2249. The trial judge

also mentioned that he called Giese, who stated that he would not be upset if the trial judge

sentenced Allen to life. J.A. 2009–10, 2247–48. The trial judge explained that Giese’s

position mattered to him and maintained that he would not be bothered if the public disliked

a decision to hand down a life sentence. J.A. 2009–10, 2249. Pringle told the trial judge

that she “did not want to be sitting on a witness stand in a capital PCR hearing one day

explaining why [she] pled [Allen] in front of a judge who would give him death.” J.A.

1957. According to Pringle, the trial judge said: “[T]here will never be a capital PCR

hearing[,] so you don’t have to worry about that.”

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In an affidavit drafted in October 2005––seven months after the conclusion of the

sentencing (“Post-Sentencing Affidavit”)––the trial judge did not deny telling defense

counsel “there will never be a capital PCR hearing[,] so you don’t have to worry about

that.”

Rather, he stated that he has “no recollection of any discussion of [the] PCR

hearing that [] Pringle reference[d].” J.A. 2010. He also did not disclaim trial counsel’s

assertion that he gave them “hints.”

The trial judge admitted he was “sympathetic”

and inclined to give Allen a life sentence based on what trial counsel told him about Allen’s

“severe mental illness.”

But, the trial judge explained in the Post-Sentencing Affidavit:

“I did say . . . that, if they pled [] Allen guilty, I thought the [d]efense team would have to trust Dr. Crawford to convince me that [] Allen was so mentally ill throughout the time of his crimes and was so mentally ill at the time of trial, that imposition of the death penalty would violate the Eighth Amendment’s ban on cruel and unusual punishment.”

“I did not use these words,” the trial judge declared, “but assumed they knew what I

meant by saying ‘you’ll have to trust Dr. Crawford.’”

On Friday, February 25, the day after the ex parte meeting, trial counsel called the

trial judge to inform him that Allen would plead guilty. J.A. 2033. The weekend passed

and, on Monday, February 28, Allen pleaded guilty to all seven charges and waived his

right to a jury trial. J.A. 123, 2475–76.

17 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 18 of 76

D.

The penalty phase of the trial began one week later, on March 7, 2005. The

government presented evidence of aggravating factors supporting a death sentence. 4 J.A.

175–77.

Defense counsel then opened its presentation of mitigators, explaining that the

evidence would show the “chain of isolation, neglect[,] and abuse” Allen endured, as well

as his schizophrenia and “rare” “psychiatric disorder called rumination.” Dist. Ct. Dkt.,

ECF No. 19-1 at Pg ID 87–88. 5

A team of five specialists presented Allen’s mitigating evidence. The team included

social worker Deborah Grey, general and forensic psychiatrist Dr. Crawford, forensic and

correctional psychiatrist Dr. Donna Schwartz-Watts, general and forensic psychiatrist

Dr. George Corvin, and child psychiatrist Dr. Harding.

Grey testified at length about Allen’s childhood abuse, psychiatric admissions,

suicide attempts, and mental status leading up to the murders. J.A. 251–433.

Dr. Crawford interviewed Allen six times—twice in May 2004, once in July 2004,

once in February 2005, and twice in March 2005—and ultimately diagnosed him with

4 The South Carolina Code requires the finding of at least one statutory aggravating circumstance beyond a reasonable doubt during the penalty phase before a death sentence can be imposed.

(B), (C). The record is clear that the trial judge found at least that. J.A. 214 (“[finding] specifically that the State has made a sufficient showing of [the first] aggravating circumstance [as to Dale Hall] beyond a reasonable doubt”). 5 “Dist. Ct. Dkt.” cites refer to documents included in the state court record and located on the district court docket (18-cv-01544).

18 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 19 of 76

schizophrenia and rumination disorder. 6, 7 J.A. 757–60. Rumination, Dr. Crawford

explained, is a “significant” and “truly bizarre disorder.” J.A. 816, 958. “What it shows

is that he had significant pathology from the second grade on. . . . Very atypical. . . . [I]t

highlights that there’s something very unusual about this person and . . . it would [] affect

his social relationships and make his life a lot more difficult. It’s very unusual.” J.A. 816.

Dr. Crawford explained that Allen continued to suffer from rumination disorder even after

6 It also appears that Dr. Crawford diagnosed Allen with depression. J.A. 758 (“He clearly had episodes of depression. He is diagnosed with depression.”). But the parties do not discuss this apparent diagnosis, so we need not either.

In addition, Dr. Crawford did not disagree that Allen has anti-social personality disorder. J.A. 834–35. But she further explained: “The way DSM-IV talks about it is that you can’t diagnose anti-social personality disorder when the symptoms are appearing in the context of psychotic illness. . . . [I]t’s reductionistic as to what’s going on with him. . . . [H]e did a lot of things that would be consistent with traits of people with anti-social personality disorder. The problem again is in the presence of the mental illness that he had[,] it’s difficult to distinguish what is from the primary mental illness and what is from the personality problem . . . .” J.A. 834–35, 932. 7 The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM-IV”) “devise[s] a set of meaningful criteria for diagnoses that allow psychiatrists and other mental health practitioners to . . . communicate with each other about patients[] and . . . develop a rational strategy for treating these illnesses.” J.A. 608–09 (Dr. Corvin Transcript). Dr. Crawford describes Axis I disorders as mental illnesses and Axis II disorders as personality disorders. See J.A. 833–34, 959–60 (describing Axis I disorders as “major mental illness[es]”). All other experts who testified on the matter said the same. See J.A. 1050 (defense expert Dr. Schwartz-Watts agreeing that Axis I disorders are “major mental illness[es]”); J.A. 1274–75 (government expert Dr. Karla deBeck describing Axis I disorders as “major mental,” “mood,” or “psychotic disorder[s]” and Axis II disorders as personality disorders); J.A. 1442 (government expert Dr. Camilla Tezza discussing “Axis [I] mental illness”); J.A. 1480 (government expert Dr. Majonna Mirza describing “an Axis I disorder” as “a mental illness”). Schizophrenia (psychotic disorder category), rumination (eating disorder category), and depression (mood disorder category) are on Axis I. See J.A. 1275, 1447–48. Anti-social personality disorder is on Axis II.

19 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 20 of 76

he committed the attendant crimes. J.A. 760. “[T]his is essentially a long lasting problem

that’s not going to go away with medication.”

Dr. Crawford also testified that she did not believe Allen was malingering (feigning

his mental illness):

[M]alingering or feigning symptoms does not mean you also do not have a mental illness. . . . We have numerous times mentally ill people who sometimes minimize symptoms, which I think he did at one point, and sometimes exaggerate symptoms. . . . But it means you’ve got to look through all that stuff to determine what is in the mental illness and what is the exaggeration of it. So that’s something that’s been very important . . . and difficult in this case.

J.A. 793.

She testified that when Allen was given the Structured Interview of Reported

Symptoms test—a test to assess whether a patient is malingering—in North Carolina, the

results indicated he was exaggerating but not malingering. J.A. 838. When he was given

the same test three weeks prior to his South Carolina trial, the results showed no evidence

of malingering.

Dr. Schwartz-Watts met with Allen twice in March 2004, once in January 2005, and

three times in February 2005. J.A. 1021–22. She opined that Allen suffered from

schizophrenia and, at one point during her evaluation, was on “the highest dose of [the

antipsychotic] Prolixin Decanoate [she had] ever seen in anybody,” as well as “the

maximum dose of [the antipsychotic] Geodon.” J.A. 1021–22, 1032, 1047. She also

diagnosed him with rumination, revealing the following during direct examination:

Q: Dr. Schwartz-Watts, have you had occasion to observe Mr. Allen ruminating?

20 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 21 of 76

A: Yes.

Q: Do you recall when that is?

A: Yes. . . . I noted on February 28th, that was the day that Mr. Allen pled guilty, I observed him in the courtroom.

Q: What did you observe that indicated to you that he was still ruminating?

A: What I saw at the [angle] I was sitting, you could actually see what’s called reverse [peristalsis]. You could see the muscles in his neck moving upwards, pushing through upwards. And I watched him. He was drinking water or something with ice, and I would watch it come up, and he would swallow again. In fact, I had my residents with me and pointed it out to them also and they observed it.

J.A. 1022–23. On cross-examination, Dr. Schwartz-Watts stated she did not believe Allen

was malingering. J.A. 1035.

Dr. Corvin evaluated Allen on five occasions. J.A. 603–06. He opined that Allen

suffered from schizophrenia and explained why he previously diagnosed Allen with

schizoaffective disorder. J.A. 606–08. “From a forensic standpoint,” Dr. Corvin

explained, Allen’s many psychiatric hospitalizations are significant because “the

symptoms . . . described [] are . . . very, very consistent in their entirety with prodromal

schizophrenia 8. . . . [W]hat you see are many repeated diagnoses of depressive illnesses

8 Dr. Crawford described “prodromal schizophrenia” as the beginning stage of schizophrenia. J.A. 613. She quoted the DSM-IV: “The onset may be abrupt or insidious, but the majority of individuals display some type of prodromal phase manifested by the slow and gradual development of a variety of signs and symptoms such as social withdrawal, loss of interest in school or work, deterioration in hygiene and grooming, unusual behavior and outbursts of anger. Family members may find this behavior difficult to interpret and assume that the person is going through a phase.”

“This is [] Allen’s history,” Dr. Crawford said.

21 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 22 of 76

one way, shape, form or fashion on top of the rumination disorder, which is, as the Court

has heard, an unusual psychiatric illness.” J.A. 624–25. “In fact, this is the first case I’ve

ever seen of rumination of this sort,” Dr. Corvin said. J.A. 625. Dr. Corvin also testified

that he did not believe Allen was malingering. J.A. 640.

Next up was Dr. Harding. He discussed Allen’s course of treatment since 1997. He

also explained that “[f]rom a psychiatric standpoint,” rumination is a “form of self

comfort,” “a way of keeping control on emotions,” and “a calming kind of activity that is

effective for the people who do it.” J.A. 541–42.

In addition, forensic psychologist Dr. James Hilkey examined Allen for about 12

hours, conducting a battery of psychological tests prior to the North Carolina sentencing. Dist.

Ct. Dkt., ECF No. 23 at Pg ID 109. Dr. Hilkey concluded that Allen has a paranoid-type

schizophrenia, rumination disorder, and borderline personality disorder with obsessive-

compulsive and anti-social features.

at Pg ID 115. He had another expert confirm, by

blind analysis, that Allen was “a person who has some exaggeration, but a person who was

suffering from schizophrenia and was psychotic.” 9

at Pg ID 478–79.

The reports of psychologist Dr. Vasudha Gupta and psychiatrist Dr. Gordon Lavin

were also entered into evidence during the penalty phase of the South Carolina trial. J.A.

783–86. Dr. Gupta interviewed Allen in November 2002, after he was admitted to Central

9 Sometime after Allen’s North Carolina sentencing, Dr. Hilkey was contacted by Allen’s South Carolina trial counsel. Dist. Ct. Dkt., ECF No. 23 at Pg ID 73. Dr. Hilkey met with trial counsel and reevaluated Allen, at their request.

at Pg ID 73–74. Trial counsel had Dr. Hilkey on standby during the South Carolina proceeding, and though they did not call him to testify, they entered Dr. Hilkey’s North Carolina report into evidence during the penalty stage.

at Pg ID 76, 78, 80; see also J.A. 1222–25, 1554, 1603. 22 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 23 of 76

Prison Mental Health following his crimes. Dist. Ct. Dkt., ECF No. 65-24 at Pg ID 270.

He diagnosed Allen with psychotic disorder, among other conditions.

at Pg ID 272.

Dr. Lavin, who also worked at Central Prison Mental Health, also interviewed Allen around

that time and diagnosed him with psychotic disorder.

at Pg ID 257. But in August

2003, Dr. Lavin determined that, while Allen had anti-social personality disorder, “[h]is

claims of auditory hallucinations and other psychotic symptoms are assessed as

malingered.”

at Pg ID 265.

The government called five mental health experts in rebuttal: forensic

psychiatrist Dr. Karla deBeck, forensic psychologist Dr. David Hattem, forensic

psychologist Dr. Camilla Tezza, psychiatrist Dr. Majonna Mirza, and forensic psychiatrist

Dr. James Ballenger. 10 These experts generally agreed that Allen has anti-social

personality disorder, but believed that he was malingering with respect to schizophrenia

symptoms. None of the government experts challenged Allen’s diagnosis with rumination

disorder.

Dr. deBeck spent 10 to 15 hours with Allen pursuant to the North Carolina court’s

order for a psychiatric evaluation to assess criminal responsibility. J.A. 1257, 1299–30.

Dr. deBeck’s “primary diagnosis” was anti-social personality disorder. J.A. 1273–74. She

noted Allen had a history of rumination and conceded, during cross examination, that she

had “no idea” if he still has it. J.A. 1323. She also diagnosed him with malingering, J.A.

10 Dr. Ballenger never met with or interviewed Allen. J.A. 1058. The sentencing judge found his testimony to be “contrived and unreliable” and, accordingly, gave the testimony “little weight, if any.” J.A. 1604–05. 23 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 24 of 76

1274, but agreed that “even if a person malingers or exaggerates or fakes symptoms for

some gain, they can still suffer from a mental illness,” J.A. 1295. Still, she concluded that

Allen did not have symptoms of schizophrenia, schizoaffective disorder, or any other

psychotic disorder on or prior to August 2003 (the last time she saw Allen). J.A. 1296,

1308. She did not express any opinion as to whether Allen had a psychotic disorder any

time after August 2003. And during cross-examination, Dr. deBeck made clear that she

conducted an evaluation regarding his mental state during the North Carolina crimes—she

did not evaluate him as to the South Carolina crimes. J.A. 1309.

Dr. Hattem evaluated Allen in August 2003 pursuant to Dr. deBeck’s request. J.A.

1382. Dr. deBeck requested that he review Allen’s past test results and conduct any

additional tests he felt necessary. J.A. 1391–92. Dr. Hattem concluded that Allen “was

over endorsing symptoms, possibly in an [] attempt to malinger, but in any case not validly

reporting symptoms.” J.A. 1412. In addition, he conceded the following during cross-

examination:

Q: [T]he testing . . . [for] malingering, that . . . . does not determine whether or not a person has a mental illness?

A: If somebody is malingering, it does not determine whether or not they have a mental illness.” . . .

Q: You do not have an opinion today as to whether [] Allen is presently mentally ill, correct?

A: That’s correct. I do not.

Q: And you did not have an opinion when you did your evaluation as to whether in fact [] Allen was mentally ill at that time. Is that correct?

A: That’s correct. 24 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 25 of 76

Q: Nor do you have an opinion as to whether Mr. Allen was mentally ill at the time of the crimes either in North Carolina or South Carolina?

A: I do not.

J.A. 1412, 1416.

Dr. Mirza evaluated Allen in December 2004. J.A. 1470. She diagnosed Allen with

anti-social personality disorder and concluded that he was malingering as to psychosis

disorder symptoms. See J.A. 1471, 1479–80 (noting that (i) Allen was admitted with

symptoms of auditory hallucinations and suicidal ideation; (ii) she discontinued

antipsychotics to “rule out psychosis”; and (iii) auditory hallucinations that resolve without

medication “would be very hard to ascribe” to an “Axis [I]” “mental health” disorder).

Dr. Tezza evaluated Allen in November 2004 pursuant to Dr. Mirza’s request. J.A.

1421. Dr. Mirza requested a psychological consultation to rule out malingering of

psychosis. J.A. 1422. Dr. Tezza determined that Allen was malingering psychotic disorder

symptoms and found no evidence of schizophrenia. J.A. 1433, 1434. But he found

evidence of anti-social personality and borderline personality disorders. J.A. 1434–36. He

also noted that “the problem with malingering” is that “[y]ou cannot be entirely sure that

someone doesn’t have a severe mental disorder. You can know they’re malingering but

sometimes malingering can obscure diagnosis.” J.A. 1433–34. During cross-examination,

Dr. Tezza confirmed that “[she] [was] [] consulted for a specific purpose by [Dr. Mirza].”

J.A. 1457. Trial counsel asked, “Not to diagnosis mental illness but to rule out

malingering?”

“That’s correct,” Dr. Tezza admitted.

Trial counsel followed-up,

“And that’s all you did?”

“That’s correct,” Dr. Tezza said.

25 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 26 of 76

In closing, the government conceded that Allen has anti-social personality disorder

and argued: “Schizophrenia? The State submits it’s a joke. . . . This man has no

schizophrenia; the State submit[s] at any time, but especially in 2002.” Dist. Ct. Dkt., ECF

No. 19-5 at Pg ID 467, 488, 493. The government did not discuss any other mental illness.

Trial counsel began its closing by stating: “[T]his is not a question of whether he

knew right from wrong. This has been an issue that, respectfully, Your Honor, has distorted

this entire process . . . [over] these past two weeks. If he . . . didn’t know the difference

between right and wrong, we wouldn’t be here. You would never reach the penalty phase

. . . of a death penalty trial if he didn’t know the difference.”

at Pg ID 499–500. Rather,

the question is whether Allen deserves death considering that “the death penalty is for the

worst of the worst crimes and for the worst of the worst criminals.” Dist. Ct. Dkt., ECF

No. 19-6 at Pg 33. Trial counsel further argued that “the question for the Court is: Is he

mentally ill?”

at Pg ID 13. And “to suggest that because he exaggerates sometimes

means he’s not mentally ill is just wrong,” counsel argued.

at Pg ID 14. Trial counsel

also summarized Allen’s “completely undisputed” childhood abuse, which they argued “by

itself is mitigating in the extreme.”

at Pg ID 24–33; Dist. Ct. Dkt., ECF No. 19-5 at Pg

ID 35, 500. “That’s a reason for life. . . . [Y]ou don’t ignore the first 20 years of his life

when you’re deciding whether he gets life or death.” Dist. Ct. Dkt., ECF No. 19-5 at Pg

ID 35.

E.

On March 18, 2005, after 10 days of testimony, the judge sentenced Allen to death.

In the Oral Sentencing Order, the sentencing judge explained in relevant part:

26 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 27 of 76

In considering the outcome of this sentencing hearing[,] I have tried to understand the unique forces and events which have put Mr. Allen in the situation in which he finds himself today. I have considered his upbringing so masterfully chronicled by Debra [sic] Grey. I’ve considered his list of mental illness [sic] as described by Dr. Pam Crawford. . . .

Mr. Allen raises the issue of mental illness as his reason for avoiding the death penalty. His attorneys argue that due to his diagnosed mental illness his culpability was diminished and no retributive or deterrent effect would be served by the imposition of the death penalty.

Addressing the issue of mental illness, I have not seen convincing evidence that Mr. Allen had a major mental illness at the time of the crimes in 2002. I have seen a series of short- stay hospitalizations from 1997, 1998 and 1999, but no recognition of a mental illness that required or demanded a treatment program.

If he had a major mental illness in 1997 or 1998 or 1999, then the mental illness community failed him and failed this community. His sole form of treatment was to give him some pills and send him away. This leads me to believe that his mental condition and behavior were primarily a reaction to a very poor and destructive home life as a child from which he chose to act out in ways that would garner attention for himself, whether by being annoying, or childish or aggravating.

His subsequent actions of attempting to kill James White and ultimately killing Dale Hall were, I believe, a result of his desire to be noticed and respected. And if he had a major mental illness at that time in 2002, no one, not even his psychiatrists, were aware of it. . . .

Th[is] lead[s] me to believe that if indeed he had schizophrenia, it was not evident and the disease did not control his mind to such a degree as to exonerate or lessen the culpability of his actions.

And what is Mr. Allen’s condition today? I have listened to and read the accounts of all of the psychiatrists and psychologists in this case: Doctors Hilkey, Gupta, Lavin,

27 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 28 of 76

DeBeck [sic], Hattem, Crawford, Mirza, Tezza, Corvin and Schwartz-Watts.

Quite frankly, I cannot tell with certainty what his mental state is today. I know he is on medication. I have observed him sitting quietly at counsel table, making notes, reading a dictionary, and not exhibiting any unusual or bizarre behavior. I have noticed him communicating with counsel and on occasion, smiling. He has always had a neat and well-groomed appearance.

Yet, three respected psychiatrists, Dr. Corvin, Dr. Crawford, and Dr. Schwartz-Watts have testified that as he sits here today he has a major mental illness characterized by delusions, hallucinations, disorganized speech, grossly disorganized or catatonic behavior, and negative symptoms, such as affective flattening, alogia, or avolition. And maybe he does, although his outward appearance belies such a condition.

On the other hand, I have heard Dr. DeBeck [sic] and Dr. Hattem say that in August 2003, their diagnosis was that he was malingering. Dr. DeBeck [sic] said, “Mr. Allen did not show symptoms of a psychiatric disorder during his hospital stay, despite being off antipsychotics since April 11th, 2003.”

Dr. Tezza and Dr. Mirza also testified that on December 3rd, 2004, they found that Mr. Allen was malingering when sent to Just Care by the Richland County Detention Center. . . .

These contrary opinions lead me to no firm conclusions as to Mr. Allen’s mental state at this time.

J.A. 1600–05.

The sentencing judge then cited Ake v. Oklahoma,

(1985), for the

proposition that “because ‘psychiatrists disagree widely and frequently on what constitutes

mental illness and on the appropriate diagnosis to be attached to given behavior and

symptoms,’ the fact finder must resolve differences in opinion . . . on the basis of the

evidence offered by each party when a defendant’s sanity is at issue in a criminal trial.”

28 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 29 of 76

J.A. 1605–06 (quoting Ake,

). He went on to discuss Supreme Court

decisions prohibiting capital punishment for the mentally incompetent, insane, and youth

under 18 years old. J.A. 1606–09 (citing Atkins v. Virginia,

(2002); Roper v.

Simmons,

(2005); Ford v. Wainwright,

(1986)). 11 The

sentencing judge then recited South Carolina’s two-prong test for determining whether a

defendant is competent to be executed. 12 J.A. 1609–10 (citing Singleton v. State,

(S.C. 1993)). The trial judge ultimately determined that, “in light of the lack of

guiding principles dealing with the imposition of the death penalty on persons with mental

illnesses, the Court can only look to the Singleton principles as a guide”––principles the

trial judge also described as “the appropriate test in South Carolina for execution of the

mentally ill.” J.A. 1610, 1638 (quoting Singleton,

). Ultimately, “[he]

[saw] [] nothing in the course of the t[he] trial to convince [him] that the defendant cannot

meet this [two]-prong test.” J.A. 1620.

The sentencing judge wrestled with whether Allen’s actions were driven by fate,

mental illness, or free will. J.A. 1620–23. He then considered deterrence and retribution

before announcing Allen’s sentence. J.A. 1624–25.

11 The trial judge began his discussion of Ford v. Wainwright with the following question: “So what is the state of the law as it applies to mental illness?” J.A. 1608. 12 The sentencing judge explained: “The first prong can be characterized as the cognitive prong, which is defined as the ability to recognize the nature of the punishment and the reason for the punishment.” J.A. 1636. “The second prong is characterized as the assistance prong, which is defined as the ability to assist counsel or the court in identifying exculpatory or mitigating information.” J.A. 1636–37. 29 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 30 of 76

About two weeks after the sentencing, the sentencing judge memorialized his

findings in a written sentencing report dated April 1, 2005 (“Post-Sentencing Report”). 13

J.A. 1935–48.

Question #8 of Section A (“Data Concerning the Defendant”) asked: “Was a

psychiatric evaluation performed?” J.A. 1935. The sentencing judge marked, “Yes.”

Subsection 8(a) asked: “If performed, by whom?” J.A. 1936. The sentencing judge wrote:

“Dr. Pam Crawford.”

Subsection 8(b) asked, “Able to distinguish right from wrong?”

and, “Able to cooperate intelligently in his own defense?”

The sentencing judge

marked, “Yes” as to both questions.

Subsection 8(c) asked: “If performed, were

character or behavior disorders found?”

The sentencing judge marked, “Yes.”

It

then asked: “If yes, please elaborate.”

Next to this question, the sentencing judge

wrote a single word: “Schizophrenia.”

Three lines demarcated for additional text

remained bare.

Question #3 of Section D (“Data Relating to Sentencing Proceeding”) asked: “Was

(were) the aggravating circumstance(s) found supported by the evidence?” J.A. 1942. The

sentencing judge marked, “Yes” next to that question. 14

Question #4 asked: “Was

13 Whenever the death penalty is imposed, South Carolina Code § 16-3-25(A) requires the trial court, within ten days after receiving the sentencing transcript, to transmit a report prepared by the trial judge. The report is in the form of a standard questionnaire prepared and supplied by the Supreme Court of South Carolina. S.C. Code § 16-3-25(A); Resp. Br. at 9, n.5 (describing the Post-Sentencing Report as “statutorily required”). 14 As to Dale Hall, the trial judge marked the boxes associated with (i) “Kidnapping”; (ii) “Larceny with use of a deadly weapon”; (iii) “Physical torture”; and (iv) “Murder was committed by a person with a prior record of conviction for murder.” J.A. (Continued) 30 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 31 of 76

there evidence of mitigating circumstances found supported by the evidence?” Id. Next

to that question, the trial judge marked, “No.” Id. Question #5 read: “If so, which of the

following mitigating circumstances was in evidence?” Id. The sentencing judge placed an

“X” next to three categories concerning “influence of mental or emotional disturbance,”

“capacity . . . to appreciate the criminality of his conduct or to conform his conduct to the

requirements of law,” and “age or mentality . . . at the time of the crime(s),” and also placed

an “X” next to the category labeled “Other.” J.A. 1942–43. It then stated: “Please explain

if [Other] is checked.” J.A. 1943. To this, the sentencing judge wrote: “Conclusive proof

of mitigating circumstances was not found. Numerous psychiatrists and psychologists

testified to conflicting diagnoses of the Defendant’s mental health.” Id.

In the sworn Post-Sentencing Affidavit drafted seven months after sentencing, the

sentencing judge wrote: “Mr. Allen was NOT conclusively diagnosed to be mentally ill.”

J.A. 2010.

II.

A.

Allen raised several issues on direct appeal. See J.A. 1933. The Supreme Court of

South Carolina affirmed his convictions and sentence, State v. Allen,

(S.C.

1935–48. The form did not have an option to mark “dismemberment” and that statutory aggravating circumstance was not noted anywhere in the Post-Sentencing Report. As to Jedediah Harr, the trial judge marked the boxes associated with (i) Murder was committed by person with a prior record of conviction for murder” and (ii) “The offender by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.” J.A. 140–41. 31 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 32 of 76

2009), and the United States Supreme Court denied his petition for writ of certiorari, Allen

v. South Carolina,

(2010).

Allen filed for post-conviction relief (“PCR”) in the Richland County Court of

Common Pleas. He raised various claims relating to the validity of his guilty plea and the

constitutionality of his sentencing proceeding. Specifically, Allen argued that his guilty

plea was involuntary because it had been induced by a promise of a life sentence from the

judge. In the alternative, Allen argued that if the judge hadn’t made such a promise, then

his lawyers rendered ineffective assistance of counsel in advising him to plead guilty

without adequate assurance that there was any benefit to doing so. On the sentencing front,

Allen argued that the sentencing court made various constitutional errors in weighing the

aggravating and mitigating factors before imposing the death sentence, including that it

failed to consider all of his mitigating evidence, instead improperly focusing only on

whether he was competent to be executed. J.A. 2542–45.

The Honorable R. Ferrell Cothran, Jr., Circuit Court Judge, was assigned to the case.

See J.A. 2165. After Allen attempted to waive his appellate rights, Judge Cothran ordered

him to undergo a competency evaluation. J.A. 2207. On January 15, 2014, Judge

Cothran conducted a competency hearing, at which Dr. Richard Frierson opined that Allen

was competent to proceed with his PCR action and Allen subsequently withdrew his

request.

But, on February 2, Allen attempted suicide by slicing his arm open.

He

received 22 stitches and, shortly thereafter, began spreading false information to sabotage

his case.

Judge Cothran noted: “He is refusing to take medications that could address

his depressive symptoms. Allen has a very long, and well documented history of

32 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 33 of 76

attempting suicide.”

Finding Allen incapable of acting in his own self-interest, Judge

Cothran assigned Allen a guardian.

Judge Cothran held an evidentiary hearing and, on December 1, 2015, adopted a

proposed opinion and order drafted by the government and denied relief. J.A. 2530–89.

First, addressing the challenges to Allen’s guilty plea, the court determined that while the

sentencing judge “may have indicated an inclination” toward a life sentence, counsel

understood there was no guarantee, and that they “would have to convince the court of the

existence of a significant mental illness.” J.A. 4202–03. The court emphasized Allen’s

own testimony, at the evidentiary hearing, denying that anyone had promised him a life

sentence. J.A. 2558–60. And in light of all the circumstances, the court found, Allen had

received effective assistance of counsel because pleading guilty was a sound strategic

decision.

The court also rejected Allen’s claims that the sentencing judge failed to consider

Allen’s mitigating circumstances and “confus[ed] the competency to be executed standard

with the standard for finding [a defendant] to be mentally ill,” J.A. 2632, 2633–34,

explaining:

Judge Cooper’s statement where he discussed the failure to show that [Allen] met the standards of competency to be executed . . . does not indicate that Judge Cooper declined to consider the mitigation evidence as presented. Rather the order expresses a conclusion that Judge Cooper did not give the evidence of mental illness the weight that [Allen] wanted him to give. . . . [C]onsideration of the evidence was properly given[.] . . . The transcript is [] fairly read to reflect a global assessment of the facts and circumstances before the sentencing judge, which he considered, weighed and narrowed, until arriving at his sentencing conclusion.

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J.A. 2582. Judge Cothran denied Allen’s subsequent motion to alter or amend the state

court order. See J.A. 2640.

On April 19, 2018, the Supreme Court of South Carolina denied Allen’s Amended

Petition for Writ of Certiorari “on the merits” in an unexplained order. See J.A. 2642.

Allen sought rehearing, which the court denied. See J.A. 2681.

B.

Allen filed a timely petition for a writ of habeas corpus in the United States District

Court for the District of South Carolina, asserting nine claims under

,

including:

Mr. Allen’s rights under the Sixth, Eighth, and Fourteenth Amendments were violated because the trial judge [(i)] failed to find that any mitigating circumstance had been established and [(ii)] used an impermissibly high standard for determining whether Mr. Allen suffered from mental illness . . . .

J.A. 19. He also renewed his challenges to his guilty plea. J.A. 20. On March 25, 2020,

the district court dismissed the petition. J.A. 11–95, 2768.

As to Allen’s mitigation evidence claim, the district court explained that the record

before the state court rebutted Allen’s assertions that “[the sentencing judge] failed to

discuss [Allen]’s life history” and “focused solely on whether Petitioner was mentally ill

at the time he committed the crimes or at the time of trial.” J.A. 32. The district court

further explained:

[T]he Constitution does not require a capital sentencer to find the existence of a mitigating factor, only to consider all of the evidence offered in mitigation. Here, Judge Cooper explicitly stated he considered the evidence of Petitioner’s abusive childhood and alleged mental illness in reaching his decision.

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He went on to discuss some of that evidence in detail and describe how he assessed it. Judge Cooper’s decision to grant that evidence little weight does not rebut the record’s clear indication that he did, in fact, consider it.

J.A. 37.

Turning to the challenges to Allen’s guilty plea, the court concluded that there had

been no constitutional error. Disagreeing in part with the PCR court, the district court

concluded that the sentencing judge made a promise, or at least an implicit assurance, of a

life sentence. J.A. 47, 47–48 n.9. This finding defeated the ineffective assistance of

counsel claim because the court concluded that, having received that assurance, trial

counsel made a reasonable strategic decision to advise Allen to plead guilty. J.A. 48, 51.

With respect to the voluntariness of the guilty plea, the district court concluded that no

promise had been relayed to Allen by his counsel or by the judge, and thus he had not relied

on any improper inducement in deciding to plead guilty. J.A. 53. Acknowledging that the

questions were close, however, the district court issued a certificate of appealability on

these two claims.

Allen timely noted this appeal, and we granted his motion to expand the certificate

of appealability (“COA”) to include the mitigation evidence issue. 15

15 The COA also included the following four issues: (i) “Trial Counsel were ineffective in violation of [] Allen’s rights under the Sixth and Fourteenth Amendments because they advised him to plead guilty without adequate assurances from the judge”; (ii) “[]Allen’s guilty plea was involuntary, in violation of the rights guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments, because the trial judge indicated to counsel that he would impose a life sentence if [] Allen pled guilty to two counts of capital murder and [] Allen relied on that assurance in pleading guilty”; (iii) “[] Allen’s Sixth, Eighth, and Fourteenth Amendment rights were violated where the judge sentenced him to death (Continued) 35 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 36 of 76

As explained below, we reverse the district court’s decision as to Allen’s mitigation

evidence claim. 16

III.

We review de novo a district court’s dismissal of a habeas petition. Grueninger v.

Director, Virginia Dep’t of Corr.,

(4th Cir. 2016). When a state court

has adjudicated a petitioner’s claim on the merits, we apply the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) standard of review, under which a petitioner is

entitled to relief only if the state court adjudication of their claim was (i) “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court”; or (ii) “based on an unreasonable determination of the facts in light

without finding that the statutory aggravating factors were proven beyond a reasonable doubt”; and (iv) “The sentencing judge’s reliance on the deterrent effect a sentence of death might have on other abusive mothers violated the Eighth Amendment’s protection against the consideration of an arbitrary factor in determining the penalty.” J.A. 95, 2961. 16 Allen also appeals the district court’s ruling that his guilty plea was voluntary and that he received effective assistance of counsel in rendering that plea. Like the district court, we are troubled by the events preceding Allen’s guilty plea, including the ex parte meeting with the sentencing judge. However, in light of the deferential standard under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we agree with the district court that the PCR court did not unreasonably find that Allen’s lawyers were not ineffective and that the guilty plea was not involuntary. Even if it is the case that the lawyers reasonably perceived they had received a promise of a life sentence, we agree with the district court that Allen did not receive or rely on any such promise, as his own testimony made clear. And with or without a promise, we agree with the district court that it would be a reasonable strategic choice to recommend a guilty plea under the circumstances. With this understanding of the facts, the PCR court’s decision is not contrary to any clearly established federal law. 36 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 37 of 76

of the evidence presented.” Long v. Hooks,

, 457–58 (4th Cir. 2020) (en banc)

(quoting

(d)).

A state court’s decision is “contrary to” clearly established federal law under

§ 2254(d)(1) when it “arrives at a conclusion opposite to that reached by [the Supreme

Court] on a question of law” or “decides a case differently than [the Supreme Court] has

on a set of materially indistinguishable facts.” Williams v. Taylor,

, 412–13

(2000).

A state court’s decision involves an “unreasonable application” of clearly

established federal law under § 2254(d)(1) “if the state court 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.” Id. at 413. “In order for a state court’s

decision to be an unreasonable application of [the Supreme] Court’s case law, the ruling

must be objectively unreasonable, not merely wrong; even clear error will not suffice.”

Virginia v. LeBlanc,

(2017) (per curiam) (internal quotation marks

omitted). This means that to obtain relief, “a litigant 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.”

(alterations and

internal quotation marks omitted).

Similarly, when a petitioner alleges that a state court based its decision on an

“unreasonable determination of the facts in light of the evidence presented in the [s]tate

court proceeding” under § 2254(d)(2), the question is not whether the state court’s

determination was incorrect but whether it is “sufficiently against the weight of the

37 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 38 of 76

evidence that it is objectively unreasonable.” Winston v. Kelly,

(4th Cir.

2010). A state court’s factual determinations are presumed correct, and the petitioner must

rebut this presumption by clear and convincing evidence.

(e)(1).

Finally, even if constitutional error occurs, habeas relief will not be granted unless

the error “had substantial and injurious effect or influence in determining the jury’s

verdict.” Brecht v. Abrahamson,

(1993) (internal quotation marks

omitted). However, “[i]f we are in ‘grave doubt’ as to the harmlessness of an error, the

habeas petitioner must prevail.” Fullwood v. Lee,

(4th Cir. 2002)

(quoting O’Neal v. McAninch,

(1995)).

In assessing a petitioner’s habeas claims, we look to “the last reasoned decision of

a state court addressing the claim.” Woodfolk v. Maynard,

(4th Cir.

2017) (internal quotation marks omitted). Thus, we look to trial court’s decision on PCR

review. In this case, even if we assume the most stringent AEDPA standard applies, we

conclude that Allen has met his burden.

IV.

A.

We begin by discussing the clearly established law at issue. The Eighth Amendment

bars the arbitrary imposition of the death penalty, Beard v. Banks,

(2004), because death—“the most irremediable and unfathomable of penalties”—is

different, Ford,

(citing Woodson v. North Carolina,

(1976)).

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Decades of back-and-forth between legislative enactments and jury

determinations—“the two crucial indicators of evolving standards of decency respecting

the imposition of punishment in our society”—“point[s] conclusively to [a] repudiation of

automatic death sentences.” Woodson,

. Well-established capital

punishment jurisprudence recognizes “the fundamental respect for humanity underlying

the Eighth Amendment” and, thus, “requires consideration of the character and record of

the individual offender and the circumstances of the particular offense as a constitutionally

indispensable part of the process of inflicting the penalty of death.”

(internal

citation omitted).

To this end, any sentence imposed in a capital case must be a “reasoned moral

response to the defendant’s background, character, and crime.” Penry v. Lynaugh,

(1989) (quoting California v. Brown,

(1987) (O’Connor,

J., concurring)). The constitutional demand for a reasoned moral response requires a

sentencing scheme to satisfy two criteria—one governs the character of the evidence placed

before the decisionmaker, and the other goes to the substantive justification that must

undergird a death sentence.

As to the first criteria, the decisionmaker must be presented with evidence that

permits an informed sentencing choice—specifically, the evidence must speak to the crime

committed and the specific individual who committed it.

Of course, a defendant must

be permitted to place any constitutionally relevant mitigating evidence in the

decisionmaker’s hands.

at 318–19. In determining whether mitigating evidence is

“relevant” in the penalty phase of a capital case, the broad evidentiary standard for

39 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 40 of 76

relevance applies. Tennard v. Dretke,

(2004) (quoting McKoy v. North

Carolina,

(1990)) (internal quotation marks omitted). “Relevant

mitigating evidence is evidence which tends logically to prove or disprove some fact or

circumstance which a factfinder could reasonably deem to have mitigating value.” McKoy,

(internal quotation marks omitted). So certain evidence that does “not

relate specifically to petitioner’s culpability for the crime he committed” may nevertheless

“be ‘mitigating’ in the sense that [it] might serve ‘as a basis for a sentence less than death.’”

Tennard,

(quoting Lockett v. Ohio,

(1978)) (internal

quotation marks omitted).

Second, “[o]nce this low threshold for relevance is met,” the decisionmaker must

weigh the aggravating and mitigating evidence to determine whether sentencing a

particular defendant to death is the morally rational and justifiable result. Id.; see also

Lockett,

. This is because capital punishment must be reserved for “the

worst of the worst.” Roper,

. It “must be limited to those offenders who

commit ‘a narrow category of the most serious crimes’ and whose extreme culpability

makes them ‘the most deserving of execution.’”

(quoting Atkins,

). Put

simply, a constitutionally valid capital sentencing scheme “eliminates the risk that a death

sentence will be imposed in spite of facts calling for a lesser penalty.” Penry, 492 U.S. at

328–29.

But mere “consideration” of mitigating evidence—in the sense that such evidence

is presented to the decisionmaker—is not enough to satisfy the Eighth Amendment’s

dictates. Sentencers “must be able to give meaningful consideration and effect to all

40 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 41 of 76

mitigating evidence that might provide a basis for refusing to impose the death penalty on

a particular individual.” Abdul-Kabir v. Quarterman,

(2007) (emphasis

added); see also Brewer v. Quarterman,

(2007) (requiring sentencer to

give “full effect” to mitigating evidence). For example, in Abdul-Kabir, the trial court

instructed the jury to decide only two special issues: (i) whether the defendant’s criminal

conduct was “committed deliberately and with the reasonable expectation that the death of

the deceased or another would result” and (ii) whether there was “a probability that the

defendant . . . would commit criminal acts of violence that would constitute a continuing

threat to society.” 550 U.S. at 238. Though Abdul-Kabir presented mitigating evidence

from mental health experts related to his troubled childhood and lack of impulse control,

the trial court refused Abdul-Kabir’s requested jury instructions, which would have

permitted a negative answer to either of the special issues based on his mitigating evidence.

Id. at 239–40, 242. The jury answered “yes” to both special issues, and Abdul-Kabir was

sentenced to death. Id. The Supreme Court concluded that this sentencing scheme

amounted to an end-run around the Eighth Amendment’s protections. Abdul-Kabir’s

mitigating evidence had relevance to his moral culpability beyond the scope of the two

special questions in the Texas statute, the Supreme Court explained, and a sentencing

process that does not “provide the [decisionmaker] with a vehicle for expressing its

‘reasoned moral response’” “to a defendant’s mitigating evidence” is “fatally flawed.” Id.

at 252–53, 256–67, 264 (quoting Franklin v. Lynaugh,

(1988)

(O’Connor, J., concurring)).

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“Equally clear is the corollary rule that the sentencer may not refuse to consider or

be precluded from considering any relevant mitigating evidence.” Skipper v. South

Carolina,

(1986) (internal quotation marks omitted); Eddings v. Oklahoma,

, 113–14 (1982). The sentencer “may determine the weight to be given

relevant mitigating evidence,” but “may not give it no weight by excluding such evidence

from their consideration.” Eddings, 455 U.S. at 114–15. And the sentencer may not screen

out mitigating evidence that meets the minimal relevance standard by imposing more

stringent requirements on valid evidence. See Tennard,

(holding that state

may not require mitigating evidence to have some nexus to the crime). As this Court has

explained before, “the Supreme Court [is] [] very sensitive to any impediment to the

consideration of any type of mitigating evidence in a death sentencing hearing.” Hutchins

v. Garrison,

(4th Cir. 1983) (citations omitted).

At bottom, when state law permits a decisionmaker to determine whether a

defendant shall live or whether he shall die, the Constitution does not permit “the risk of

an unguided emotional response” to the ultimate issue. Penry,

. Rather,

“[f]ull consideration of evidence that mitigates against the death penalty is essential if the

[decisionmaker] is to give a reasoned moral response to the defendant’s background,

character, and crime.”

(emphasis added).

B.

We now turn to the mitigation evidence claim before us. Allen contends that the

sentencing judge (i) “refus[ed] to consider and give effect to [] [his] mitigating evidence”

as demonstrated by “[the] failure to find any mitigating circumstances” and (ii) “imposed

42 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 43 of 76

an unconstitutionally restrictive burden on [] consideration of [] [his] mental health

evidence” by requiring proof of insanity or incompetence. Op. Br. at 53–54. Allen argues

that the latter action required him to be “categorically ineligible for death before . . . any

effect to the mental health mitigating evidence” would be given, rendering the aggravator-

mitigator balancing “illusory.” Op. Br. at 53–56.

The PCR court reached a different conclusion. It reasoned that the sentencing judge

“consider[ed] the mitigation evidence as presented” but just “did not give the evidence of

mental illness the weight that [Allen] wanted him to give.” J.A. 2582. And ultimately, the

state court concluded, “consideration of the evidence was properly given.”

But the analysis is not as simple as stating that the sentencing judge “considered”

Allen’s mental health evidence “properly” or “as presented” and, therefore, no

constitutional violation occurred. If the record before the state court shows clearly and

convincingly that the trial court did not consider and give effect to all of Allen’s mitigating

evidence, the state court’s conclusion that the trial court “consider[ed] the mitigation

evidence as presented” constitutes an unreasonable determination of the facts and its

conclusion that such consideration was “proper” would contravene clearly established

federal law. Furthermore, if the sentencing judge failed to give “meaningful consideration

and effect” to all of Allen’s mitigating evidence, the state court’s conclusion that such

consideration was “proper” contravenes clearly established federal law.

It does not matter which of these things happened here because one is as arbitrary

and constitutionally improper as the other. In the end, when placed against the backdrop

of the record and considered within the bounds of clearly established federal law, the state

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court’s conclusion that the sentencing judge “properly considered” Allen’s mitigating

evidence was in error.

1.

Our examination of the record compels us to conclude that the sentencing court did

not consider all of Allen’s mitigating evidence. Thus, the PCR court’s critical factual

determination—that the trial court “consider[ed] the mitigation evidence as presented”—

was objectively unreasonable. With this cracked factual foundation exposed, we conclude

that the state court’s determination that the sentencing judge “properly” considered Allen’s

mitigating evidence was contrary to clearly established federal law.

First, in the Post-Sentencing Affidavit, the sentencing judge states outright: “Allen

was NOT conclusively diagnosed to be mentally ill.” J.A. 2010. No doubt, we are bound

by the sentencing judge’s sworn declaration as to this factual finding. The problem is that

the record plainly and unequivocally belies this conclusion. The government’s own experts

conclusively diagnosed Allen with rumination disorder; the government conceded as much

during oral argument. And Dr. Crawford could not have been clearer when she said “[Allen]

is mentally ill now” and “[he] was mentally ill” in the summer of 2002. J.A. 763, 774; see

also J.A. 761, 764, 810, 850, 853, 862, 963–64, 967. Dr. Corvin and Dr. Schwartz-Watts were

just as clear when they said the same. J.A. 621, 640, 653–54, 701, 1022.

And no government rebuttal expert said different. Dr. Hattem had no opinion about

whether Allen was mentally ill as of the date of Dr. Hattem’s testimony, at the time he

conducted the evaluation, or at the time of the South Carolina crimes. J.A. 1412. Dr. Tezza

confirmed that “[she] [was] [] consulted for a specific purpose” and that purpose was “not

44 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 45 of 76

to diagnose mental illness.” J.A. 1457 (emphasis added). Dr. Mirza testified that Allen

was malingering as to psychosis disorder symptoms; he made no conclusions as to any

other mental health disorder. See J.A. 1471, 1479–80. And Dr. deBeck also concluded

that Allen was malingering as to psychosis disorder symptoms, offered no opinion as to

whether Allen was malingering as to any other Axis I mental health issue, and admitted

that individuals can malinger and still be mentally ill. J.A. 1295–96, 1308.

The sentencing judge could not have concluded that “Allen was NOT conclusively

diagnosed to be mentally ill,” J.A. 2010, without excluding uncontested mitigating

evidence. We cannot be bound by the sentencing judge’s finding that Allen had no

conclusively diagnosed mental illness and conclude anything other than that Allen’s

conclusively diagnosed rumination disorder was excluded. At bottom, the sentencing

judge could not have considered mitigating factors that the sentencing judge swore did not

exist. Any other conclusion would be objectively unreasonable.

Second, in the Post-Sentencing Report, the sentencing judge concluded that there

“[were] [] aggravating circumstance(s) found supported by the evidence.” J.A. 1942. He

then concluded that there was “[no] evidence of mitigating circumstances found supported

by the evidence.”

But there was evidence of mitigating circumstances supported by

the evidence: Allen suffered from rumination and anti-social personality disorders and

endured persistent childhood abuse. No expert or party debated these mitigating

circumstances. That the sentencing judge found that the evidence presented did not support

the existence of mitigating circumstances, despite undisputed expert testimony regarding

45 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 46 of 76

two disorders and childhood abuse, shows that the sentencing judge excluded the

uncontroverted expert testimony from the analysis.

Third, the sentencing judge again emphasizes that no mitigating circumstances

existed when articulating why he found “[no] evidence of mitigating circumstances [was]

[] supported by the evidence.”

After acknowledging that trial counsel placed several

pieces of mitigating evidence on the record—including the “influence of mental or

emotional disturbance,” “capacity . . . to appreciate the criminality of his conduct or to

conform his conduct to the requirements of law,” and “age or mentality . . . at the time of

the crime(s)”—the sentencing judge explained that “[no] evidence of mitigating

circumstances [was] found supported by the evidence” because “[c]onclusive proof of

mitigating circumstances was not found.”

But again, what of Allen’s rumination disorder, anti-social personality disorder, and

childhood abuse? Aren’t these circumstances potentially mitigating as a matter of law?

See Abdul-Kabir,

(explaining that evidence of “mental illness, substance

abuse, and a troubled childhood” have “mitigating qualities”). Didn’t all experts who

testified about these mitigators agree? Doesn’t a lack of conflicting testimony as to a fact

create “conclusive proof” of that fact? The only way to reconcile the sentencing judge’s

conclusion that no conclusive proof of mitigating circumstances existed with the

conclusive proof of Allen’s rumination and anti-social personality disorders, as well as

childhood abuse, is to conclude that the sentencing judge did not consider these mitigators.

Fourth, per the Post-Sentencing Report, “a psychiatric evaluation [was] performed”;

Dr. Crawford was the evaluator; and she found “character or behavior disorders.” J.A.

46 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 47 of 76

1936. Yet, when asked to elaborate, the sentencing judge memorialized a single disorder:

schizophrenia.

The Post-Sentencing Report is silent as to Allen’s rumination disorder,

an Axis I mental illness with which Dr. Crawford diagnosed Allen. It may be true, as the

government argues, that sentencing judges are required to memorialize only aggravating—

not mitigating—circumstances found to exist. But this specific portion of the Post-

Sentencing Report does not concern mitigators found by the sentencer—it concerns

“character or behavior disorders” found by the psychological evaluator. The government

has not suggested that a sentencing judge can opt out of filling in all relevant portions of

this report. Nor has the government suggested that a sentencing judge can cherry-pick

which “character or behavior disorders” to memorialize for review by the South Carolina

Supreme Court and which to omit. Indeed, the report contains three full lines upon which

a sentencing judge can list the “character or behavior disorders found,” suggesting that the

South Carolina Supreme Court anticipates a full account of all disorders. That the

sentencing judge left the three lines devoid of any mention of Allen’s rumination disorder

suggests that he did not consider this disorder when making the sentencing decision.

Fifth, that schizophrenia was the only mental health disorder the sentencing judge

discussed during oral sentencing further supports the conclusion that schizophrenia was the

only mental health condition under consideration. We acknowledge that the sentencing

judge states that he “considered [Allen’s] list of mental illness [sic] as described by Dr. []

Crawford.” J.A. 1600. And of course, that a sentencing order does not refer to some

mitigating factors does not mean that such evidence was not considered. But, when trying

to ascertain “what [Allen’s] mental state is today,” the sentencing judge discusses what he

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describes as the “major mental illness” of schizophrenia only. J.A. 1603 (emphasis added)

(“Dr. Schwartz-Watts ha[s] testified that[,] as he sits here today[,] [Allen] has a major

mental illness characterized by delusions, hallucinations, disorganized speech, grossly

disorganized or catatonic behavior, and negative symptoms, such as affective flattening,

alogia, or avolition.”) Critically, the sentencing judge concludes that, because some

government rebuttal witnesses opined that Allen may be malingering or exaggerating his

schizophrenic or psychosis symptoms, he could come to “no firm conclusions as to []

Allen’s mental state at [the] time [of sentencing].” J.A. 1605. But again, there were

absolutely no contrary opinions as to Allen’s rumination disorder, which is also an Axis I

mental illness. This serves as further evidence that the sentencing judge swiped some of

Allen’s mitigating evidence off the table.

Sixth, during oral sentencing, the judge announced his sentencing decision by

explaining in relevant part:

After carefully considering all relevant facts and circumstances, including the existence of statutory aggravating circumstances as well as the claim of mitigating circumstances, this Court finds and concludes that the defendant shall be sentenced to death.

J.A. 2553–54 (emphasis added). But of course, Allen did not merely claim to have

mitigating circumstances. Again, no expert disputed Allen’s rumination and anti-social

personality disorders; nor did any expert dispute his childhood abuse. So, these mitigators

existed just as much as the aggravators did. Yet, the sentencing judge’s final words

following ten days of testimony suggests the exact opposite. This fact too supports the

conclusion that the sentencing judge failed to consider Allen’s uncontested mitigators.

48 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 49 of 76

On this record, therefore, the PCR court unreasonably determined that the

sentencing court considered all the mitigating evidence. Although § 2254(d)(2) imposes a

high bar for showing an unreasonable determination of the facts, we conclude that Allen

cleared it. When the record is read in its entirety, it is clear that the sentencing judge

considered Allen’s disputed schizophrenia diagnosis only and paid no mind to the several

uncontroverted mitigators.

We also note, as further support for this conclusion, that the PCR court failed to

even consider the most probative piece of evidence of how the sentencing judge analyzed

the mitigating evidence—his own statements memorialized in the Post-Sentencing

Affidavit. When a state court during post-conviction review ignores evidence in the record

placed before it, “its fact-finding process may lead to unreasonable determinations of fact

under § 2254(d)(2).” Gray v. Zook,

(4th Cir. 2015) (citing Moore v.

Hardee,

(4th Cir. 2013) (citing Taylor v. Maddox,

(9th Cir. 2004), overruled on other grounds by Murray v. Schriro,

, 999–1000

(9th Cir. 2014))); Miller-El v. Cockrell,

(2003) (expressing concern that

a state court “had before it, and apparently ignored” petitioner’s probative evidence of a

constitutional violation). Of course, “a state court need not refer specifically to each piece

of a petitioner’s evidence to avoid the accusation that it unreasonably ignored the

evidence.”

(citing Moore,

). “Rather, to determine whether the state

court considered or ignored particular evidence, the federal court must review ‘the entirety

of the [state] court’s order.’”

(Moore,

).

49 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 50 of 76

The record here demonstrates that the state court disregarded the Post-Sentencing

Affidavit. The state court said as much in its opinion:

This Court has also reviewed the affidavit of the Honorable G. Thomas Cooper. . . . [The affidavit] was a part of the direct appeal record and a part of the [r]eturn in the instant action . . . . In an abundance of caution, this Court has used its discretion to resolve not to consider the affidavit in regard to the allegations in this action. . . . [I]t is not necessary to resolve any claim in this action.

J.A. 2532, 2583–84.

Based on this statement, we must conclude that the state court did not consider the

Post-Sentencing Affidavit as to any of the claims 17—unless, of course, it stated or indicated

otherwise. Interestingly, the state court did use the affidavit to hedge its decisionmaking,

but it did so only as to three specific claims: (i) “Alleged Ineffective Assistance of

Appellate Counsel,” J.A. 2586; (ii) “Alleged Involuntary Guilty Plea Due to Trial Judge’s

Involvement in Plea,” J.A. 2553; and (iii) “Alleged Involuntary Guilty Plea,” J.A. 2584

(“[T]his Court recognizes that Judge Cooper’s affidavit plainly rebuts and clarifies the

earlier affidavit of Ms. Fielding Pringle and rebuts the affidavit of Mr. Robert Lominack,

but it is not necessary to resolve any claim in this action. Critically, the affidavit does not

contain any assertions that a promise was made such as would undermine the fairness of

the proceeding if the affidavit would not be considered.”)

17 The district court thought the same, explaining: “[A]lthough the PCR court did not consider Judge Cooper’s Affidavit, the Affidavit is part of the record before this Court.” J.A. 48. 50 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 51 of 76

The state court said nothing at all about the Post-Sentencing Affidavit when

deciding Allen’s two-part mitigation evidence claim. This leads us to conclude that the

Post-Sentencing Affidavit played no part in the outcome of this issue, which the state court

analyzed in its opinion under Section (D) (“Alleged Ineffective Assistance of Trial

Counsel”), Subsection (g) (“For Failing to Object to the Trial Court’s Confusing of the

Competency to be Executed Standard With the Standard for Finding Mental Illness”). J.A.

2581. The affidavit contained commentary about the judge’s assessment of the mitigating

evidence—most notable, his conclusion that “Allen was NOT conclusively diagnosed to

be mentally ill,” J.A. 2010—which bears directly on Allen’s claim. “A rational fact-finder

might discount [the affidavit] or, conceivably, find it incredible, but no rational fact-finder

would simply ignore it.” Gray,

(quoting Taylor,

); see

also Taylor,

(“To fatally undermine the state fact-finding process, and

render the resulting finding unreasonable, the overlooked or ignored evidence must be

highly probative and central to petitioner’s claim.”).

The state court’s decision to ignore the Post-Sentencing Affidavit fatally

undermined the fact-finding process. 18 The omission “[led] to unreasonable

18 “What goes for juries goes no less for judges. In making findings, a judge must acknowledge significant portions of the record, particularly where they are inconsistent with the judge’s findings. The process of explaining and reconciling seemingly inconsistent parts of the record lays bare the judicial thinking process, enabling a reviewing court to judge the rationality of the fact-finder’s reasoning. On occasion, an effort to explain what turns out to be unexplainable will cause the finder of fact to change his mind. By contrast, failure to take into account and reconcile key parts of the record casts doubt on the process by which the finding was reached, and hence on the correctness of the finding.” Taylor, 366 F.3d at 1007–08. 51 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 52 of 76

determinations of fact” because the PCR court overlooked highly probative evidence that

the sentencing judge did not consider Allen’s rumination diagnosis or history of childhood

abuse. See Gray,

.

We find clear and convincing evidence that the sentencing judge did not consider

all of Allen’s mitigating evidence, and therefore hold that the state court’s determination

that the sentencing judge “consider[ed] the mitigation evidence as presented” is an

unreasonable determination of the facts because it is based on a factual finding that is

plainly contradicted by the record. We thus do not defer to the state court’s ultimate ruling

on Allen’s Eighth Amendment claim, predicated as it is on an unreasonable factual

determination, and instead review that claim de novo. See Dodson v. Ballard,

, 175–76 (4th Cir. 2020). Failing to consider some of a defendant’s mitigating

evidence, as the sentencing court did here, violates clearly established federal law. And it

follows that the state court’s conclusion that the sentencing judge “properly” considered

Allen’s mitigating evidence is contrary to clearly established federal law. In the end, “the

[sentencer’s] failure to consider all of the mitigating evidence risks erroneous imposition

of the death sentence, in plain violation of Lockett, [so] it is our duty to remand this case

for resentencing.” Mills v. Maryland,

(1988) (quoting Eddings,

n.13 (O’Connor, J., concurring)).

2.

Attempting to rationalize and breathe ambiguity into the sentencing judge’s

determination, the government maintains that the sentencing judge did not exclude any

such evidence. Rather, the government asserted during oral argument that the sentencing

52 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 53 of 76

judge placed all such evidence on the scale and simply gave it no weight. To be clear,

“[c]onclusive proof of mitigating circumstances was not found” and “no evidence of

mitigating circumstances was found supported by the evidence” are clear statements of

exclusion—not devaluation. 19 Yes, a sentencer may consider mitigating evidence and

decide that none of that evidence is worthy of weight. But the distinction between deciding

mitigating evidence deserves no weight and deciding that there is no mitigating evidence

is one with a constitutional difference. In the end, the government’s attempt to shove the

genie back into the constitutional bottle fails especially because it requires re-writing the

sentencing judge’s own explanation of the sentence.

Still, we pause to entertain the government’s position, in response to which we ask:

Why did the trial court give Allen’s evidence of childhood abuse, rumination disorder, and

anti-social personality disorder no weight? The answer to this question reveals that, under

the government’s theory, the sentencing judge’s determination does not comport with the

Eighth Amendment principle prohibiting barriers that preclude a sentencer from giving

meaningful consideration and effect to all relevant mitigating evidence.

The first possible explanation for the trial court’s no-weight determination is that it

mistakenly overlooked uncontested mitigating evidence, focusing exclusively—and

erroneously—on the contested schizophrenia diagnosis. Recall that the sentencing judge

explained in full: “Conclusive proof of mitigating circumstances was not found.

Numerous psychiatrists and psychologists testified to conflicting diagnoses of the

19 This is especially so when paired with the sentencing judge’s sworn testimony that “Mr. Allen was NOT conclusively diagnosed to be mentally ill.” J.A. 2010. 53 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 54 of 76

defendant’s mental health.” J.A. 1943 (emphasis added). This explanation as to why

Allen’s mitigating evidence was given no weight can be interpreted in only one way: The

sentencing judge gathered Allen’s evidence of childhood abuse, rumination disorder, and

anti-social personality disorder; placed it on the analytical scale; and proceeded to give all

of this evidence zero weight, and did so because the experts could not agree as to Allen’s

mental health diagnoses. But we know that this factual conclusion is erroneous because,

as discussed at length above, no one contested Allen’s rumination disorder. So, to the

extent that the state court viewed the sentencing judge’s consideration through the “no

weight” lens and determined that such consideration of Allen’s mitigating evidence was

“proper,” this conclusion is defective because it flowed from the unreasonable factual

determination that the sentencing judge “considered the mitigation evidence as presented.”

A second possible explanation for why the sentencing court gave Allen’s mitigating

evidence no weight is that it applied the wrong legal standard—inquiring whether Allen

was competent to be executed, rather than whether a death sentence would be a reasoned

moral response to the defendant’s background, character, and crime. Operating under this

wrong standard, the sentencing judge may have assigned no weight to Allen’s mitigating

evidence because he believed that schizophrenia amounts to insanity or incompetency and,

without schizophrenia, Allen’s mental illness did not render him insane or competent such

that the Eighth Amendment would bar his execution. That would be consistent with the

judge’s oral sentencing, described above, at which he reviewed Supreme Court decisions

categorically prohibiting the execution of the mentally incompetent or insane and “look[ed]

. . . as a guide” to South Carolina’s standard for whether a defendant is competent to be

54 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 55 of 76

executed. J.A. 1610. It also is precisely what the sentencing judge suggested he required

in the Post-Sentencing Affidavit that the PCR court failed to consider: “I did say . . . I

thought the Defense team would have to trust Dr. Crawford to convince me that Mr. Allen

was so mentally ill throughout the time of his crimes and was so mentally ill at the time of

trial, that imposition of the death penalty would violate the Eighth Amendment’s ban on

cruel and unusual punishment.” J.A. 2009. 20

20 During the penalty stage, the sentencing judge appeared to remain interested in whether Allen was insane. Take for example the following exchange during Dr. deBeck’s direct examination:

Q: You were also asked . . . by [] Court Order to assess Mr. Allen’s state of mind at the time o[f] August [] 12th . . .?

A: Yes. . . .

Q: And did you come to some conclusions regarding specifically his state of mind around the time of August the 12th of 2002?

Q: Yes.

[Defense Counsel]: Your Honor, for the record, we do object to the relevance of this in this proceeding.

[The Court]: What’s the question?

[Solicitor]: She was ordered to assess his state of mind [for the North Carolina trial], whether or not he was experiencing some major mood or psychotic disorder at the time of around August the 12th, 2002, at the time of the crimes. I think that would be critical.

[The Court]: What’s the objection?

[Defense Counsel]: The objection is based on the fact that she was ordered to do an insanity evaluation. (Continued) 55 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 56 of 76

Of course, Lockett and its progeny are reduced to a hollow promise if a sentencer—

before hearing aggravating or mitigating evidence—decides that a defendant must

surmount the guilt-phase insanity or incompetency hurdle in the context of the sentencing-

phase determination of who shall live and who shall die. If this is the case, no matter the

aggravators and their weight and no matter the mitigators and their weight, the defendant

dies if he cannot prove he is insane or incompetent. Mitigators that fall short of proving

insanity or incompetency stand no chance of sparing the defendant’s life and any

aggravators would not matter: The defendant must die essentially as a categorical matter.

In applying a predetermined standard, particularly one unmoored from a defendant’s

mitigating evidence, the sentencer sidelines the only vehicle for arriving at a “reasoned

moral response” to a defendant’s specific character and crime. This would be

unconstitutional.

Moreover, the sentencing judge also appeared to place an unconstitutional nexus

requirement on the mitigating evidence. The judge stated in his affidavit that he was

Mr. Allen pleaded guilty in North Carolina, pleaded guilty in South Carolina, and insanity—

[The Court]: He didn’t plead guilty. He didn’t plead guilty. She made her evaluation before he pled guilty.

[Defense Counsel]: Yes, Your Honor. Yes, she did. But this is no longer a relevant issue, and I believe it’s getting somewhat confused.

[The Court]: Well, I’m not confused it. . . . I’ll overrule the objection. Go ahead.

J.A. 1299–1300. 56 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 57 of 76

looking for evidence that Allen “was so mentally ill throughout the time of his crimes and

was so mentally ill at the time of trial,” that the death penalty would be unconstitutional.

J.A. 2009. The judge’s focus on Allen’s mental state at these two discrete points in time

impermissibly narrowed his focus to mitigating evidence that had some nexus to Allen’s

crimes, and screened out, for example, evidence of Allen’s history of mental health

problems and commitments that preceded either his crimes or his trial. Cf. Tennard,

(barring sentencing courts from imposing any requirement that mitigating

evidence must have a nexus to the crime).

Whatever the reason for assigning the mitigating evidence no weight—mistaken

oversight of evidence, application of an unjustifiably stringent legal standard, or both—it

is clear that the Eighth Amendment does not tolerate a capital sentencing scheme where

the sentencer ignores or overlooks the existence of a mitigating factor and, as a result,

assigns no weight to that mitigating factor or other such factors. As the Supreme Court

explained in Eddings, “[t]he sentencer . . . may determine the weight to be given relevant

mitigating evidence. But [the sentencer] may not give it no weight by excluding such

evidence from [its] consideration.” 455 U.S. at 114–15. Improperly screening out

mitigating evidence that does not rise to an arbitrary level of severity, or does not bear a

direct nexus to the offense, similarly violates the Eighth Amendment by excluding

potentially relevant evidence, contrary to the constitutional requirement that all must be

considered. See Tennard,

(“[T]he question is simply whether the evidence

is of such a character that it ‘might serve “as a basis for a sentence less than death.”’”).

57 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 58 of 76

As the United States Supreme Court has further explained, the source or form of the

barrier to giving meaningful consideration and effect to mitigating evidence is immaterial:

Under our decisions, it is not relevant whether the barrier to the sentencer’s consideration of all mitigating evidence is interposed by statute, by the sentencing court, or by an evidentiary ruling. . . . Whatever the cause, . . . the conclusion would necessarily be the same: “Because the [sentencer’s] failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing.”

Mills,

(emphasis added) (citations omitted); see also Abdul-Kabir,

n.21 (recognizing that prosecutorial argument that prohibits a jury from

considering relevant mitigating evidence violates the Eighth Amendment); McKoy,

(“[W]e held that it would be the ‘height of arbitrariness to allow or require the

imposition of the death penalty’ where 1 juror was able to prevent the other 11 from giving

effect to mitigating evidence.” (emphasis added) (quoting Mills,

)).

In other words, any barrier to a capital sentencer giving meaningful consideration

and effect to all relevant mitigating evidence renders the sentencing scheme

constitutionally infirm, “[w]hatever the cause.” Mills,

. The same must be

true when a sentencer imposes his or her own barrier by ignoring, overlooking, or screening

out mitigating evidence. See Caldwell v. Mississippi,

, 329 n.2 (1985) (“[T]his

Court has gone to extraordinary measures to ensure that the prisoner sentenced to be

executed is afforded process that will guarantee, as much as is humanly possible, that the

sentence was not imposed out of whim, passion, prejudice, or mistake.” (emphasis added)

(quoting Eddings,

(O’Connor, J., concurring))). Here, by ignoring,

58 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 59 of 76

overlooking, or improperly screening out undisputed mental health evidence, the

sentencing judge erected a barrier to giving the requisite meaningful consideration and

effect to all of Allen’s mitigating evidence.

It is no answer that a sentencing judge “considers” mitigating evidence once he or

she permits such evidence to be placed on the record and may then assign some or no

weight to such evidence. The Supreme Court’s unwavering insistence on giving

meaningful consideration and effect to mitigating evidence shows that there are situations

in which the mere admission of mitigating evidence may not, by itself, guard against the

arbitrary imposition of the death penalty. 21 This is such a case. A sentencer can assign

little to no weight to such evidence if the sentencer finds it wanting; but a sentencer may

not give it no weight by ignoring or overlooking it (thereby giving it less than full effect,

and effectively swiping it off the analytical scale). Because assigning no weight to

mitigating evidence based on such barriers violates the principles established in Lockett,

Eddings, and its progeny, Allen’s death sentence cannot stand. McKoy,

(“Any barrier to such consideration [of mitigating evidence] must fall.”).

21 See Penry, 482 U.S. at 319 (“[I]t is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that in imposing sentence. Only then we can be sure that the sentencer has treated the defendant as a ‘uniquely individual human bein[g]’ and has made a reliable determination that death is the appropriate sentence.” (quoting Woodson, 428 U.S. at 304–05)).

59 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 60 of 76

V.

Even though we conclude the state court’s adjudication was an unreasonable

determination of the facts and contrary to clearly established federal law, “our inquiry is

not over.” Barnes v. Joyner,

(4th Cir. 2014). On collateral review, we

cannot grant habeas relief unless the error “had substantial and injurious effect or influence

in determining the jury’s verdict.” Brecht,

. “[I]f the federal court is ‘in

grave doubt’ about whether the trial error had a ‘substantial and injurious effect or

influence’ on the verdict and therefore finds itself ‘in virtual equipoise’ about the issue, the

error is not harmless.” Cooper v. Taylor,

(4th Cir. 1996) (en banc)

(quoting O’Neal,

). We must make this determination “based on [our]

review of the record . . . as a whole.”

We are in grave doubt that the errors in this case did not have a substantial and

injurious effect. First, the evidence presented demonstrates that Allen is conclusively

diagnosed with rumination—an Axis I mental illness. The sentencing decision likely

would be different if the sentencing judge had not excluded, ignored, or overlooked this

disorder. Indeed, the sentencing judge found no conclusive proof of mitigating

circumstances specifically because the experts disagreed as to Allen’s mental illness. Had

his rumination been placed in the analytical mix, the sentencing judge likely would have

found conclusive proof of a mitigating circumstance.

Moreover, as the sentencing judge swore in the Post-Sentencing Affidavit: “I

believed Mr. Allen was seriously mentally ill and had that been proven during the penalty

phase, there likely would have been no PCR issues because he would have received the life

60 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 61 of 76

sentences the [d]efense team sought.” J.A. 2010 (emphasis added). We cannot be certain

what “seriously mentally ill” means to the sentencing judge. A reasonable guess (based on

our analysis thus far) is that schizophrenia would fall within that bucket and because

rumination is also an Axis I disorder, if the sentencing judge had considered it, rumination

may have fit the “seriously mentally ill” bill too. Notably, despite a lengthy discussion

about the depravity of Allen’s crimes, the sentencing judge still made this unequivocal

proclamation that Allen “would have received [a] life sentence[]” had trial counsel proven

“serious[] mental[] illness.”

So, the Post-Sentencing Affidavit itself indicates that the

aggravators would not have throttled the imposition of a life sentence if Allen proved

“serious[] mental[] illness.”

Beyond overlooking the fact that Allen does, in fact, have a serious mental illness

uncontested by any psychiatrist testimony, the sentencing judge also failed to consider

another major component of Allen’s mitigation case—his history of childhood abuse. As

the Supreme Court has acknowledged, “[e]vidence of a difficult family history and of

emotional disturbance is typically introduced by defendants in mitigation.” Eddings,

. Proper consideration of Allen’s thorough case of an abusive and unstable

childhood may very well have also changed the sentencing decision.

The record in this case leaves us with grave doubt that excluding, ignoring, or

overlooking Allen’s serious mental illness and history of childhood abuse had no

substantial and injurious effect or influence on the outcome of the sentencing proceeding.

Therefore, Allen is entitled to relief.

61 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 62 of 76

The doubt surrounding the voluntariness of Allen’s guilty plea makes us particularly

unwilling to conclude that the sentencing judge’s error here may have been harmless. The

sentencing judge denied that he promised Allen a life sentence, but even by his own

account, he did strongly suggest he was inclined toward leniency if Allen’s lawyers were

able to convince him of Allen’s serious mental illness. J.A. 2009. And the PCR court, in

finding no due process violation, cited statements from the lawyers that they believed,

based on the representations of the judge, that if they convinced him Allen was seriously

mentally ill, the judge would impose a life sentence. J.A. 2566. Allen then chose to waive

his right to a jury and put the sentencing decision in the judge’s hands. After making such

consequential representations to the lawyers, it was particularly important for the judge to

give fair and full consideration to the mitigating evidence that Allen proffered. In such

circumstances, we are especially reluctant to conclude that the failure to properly consider

mitigating evidence was harmless when the mitigation case factored so heavily into the

decision to enter a guilty plea at all.

VI.

Death is final. Well-storied Eighth Amendment jurisprudence recognizes that a capital

defendant’s due process rights require far greater protection during the penalty phase because

this last phase determines whether he lives or dies. Equal justice under the law demands that

a death-eligible defendant’s individual background, characteristics, and culpability are given

meaningful consideration and effect before imposing a sentence of death.

62 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 63 of 76

A sentencer may very well impose the death sentence because she believes a

defendant should pay for his crimes with his life. But a sentencer can only do so after

considering all of the aggravators and all of the mitigators, and weighing them in a way

that conforms with Eighth Amendment jurisprudence. That did not happen here. And we

know this because, in this rare instance, the sentencer’s words and sworn testimony are in

the record.

The sentencer in this case excluded, ignored, or overlooked Allen’s clear and

undisputed mitigating evidence, thereby erecting a barrier to giving this evidence

meaningful consideration and effect and eviscerating the well-established requirements of

due process in deciding who shall live and who shall die. Because this violates the Eighth

Amendment’s guarantee against the arbitrary imposition of the death penalty, we reverse

the judgment of the district court and remand with instructions that the district court issue

the writ of habeas corpus unless the State of South Carolina grants Allen a new sentencing

hearing within a reasonable time.

REVERSED AND REMANDED

63 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 64 of 76

RUSHING, Circuit Judge, dissenting:

The majority opinion paints a picture of a South Carolina judge who presided over

a ten-day capital sentencing trial and then, when imposing the sentence on the final day,

either forgot or deliberately ignored all of the defendant’s evidence except his contested

schizophrenia diagnosis. Unsurprisingly, that portrayal is not accurate. And it certainly is

not the only reasonable way to read the record, which is “the only question that matters”

for our purpose as a federal court reviewing a state court’s decision on post-conviction

review. Harrington v. Richter,

(2011) (internal quotation marks omitted).

I respectfully dissent.

I.

In our federal system, “the States possess primary authority for defining and

enforcing the criminal law and for adjudicating constitutional challenges to state

convictions.” Shinn v. Ramirez,

, 1730–1731 (2022) (internal quotation

marks, brackets, and citations omitted). Federal habeas review—by which a federal court

may order the release or retrial of a state prisoner—is accordingly highly constrained. We

may not “disturb[] state-court judgments on federal habeas review absent an error that lies

‘beyond any possibility for fairminded disagreement.’” Mays v. Hines,

(2021) (per curiam) (quoting Shinn v. Kayer,

(2020) (per curiam)).

This means federal habeas review is not “‘a second criminal trial, and federal courts are

not to run roughshod over the considered findings and judgments of the state courts.’”

Walters v. Martin,

, 441 (4th Cir. 2021) (quoting Williams v. Taylor,

(2000)), cert. denied,

(2022).

64 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 65 of 76

Specifically, Congress has instructed that a federal court “shall not” grant a writ of

habeas corpus with respect to any claim adjudicated on the merits in state court unless the

state adjudication resulted in a decision that was “contrary to, or involved an unreasonable

application of, clearly established Federal law” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.”

(d). These standards are “difficult to meet.” Richter,

.

As relevant here, a decision is “contrary to” clearly established federal law only “if

the state court applies a rule different from the governing law set forth in [the Supreme

Court’s] cases, or if it decides a case differently than [the Supreme Court has] done on a

set of materially indistinguishable facts.” Bell v. Cone,

(2002). And a

decision is based on an unreasonable determination of the facts only where “the factual

determination is sufficiently against the weight of the evidence that it is objectively

unreasonable, which means it must be more than merely incorrect or erroneous.” Burr v.

Jackson,

(4th Cir. 2021) (internal quotation marks and brackets omitted);

see Burt v. Titlow,

(2013) (“[A] state-court factual determination is not

unreasonable merely because the federal habeas court would have reached a different

conclusion in the first instance.” (internal quotation marks omitted)) The state court’s

factual determinations are “presumed to be correct,” and the petitioner must rebut this

presumption by “clear and convincing evidence.”

(e)(1).

In sum, “[a] state court’s determination that a claim lacks merit precludes federal

habeas relief so long as fairminded jurists could disagree on the correctness of the state

court’s decision.” Richter,

(internal quotation marks omitted).

65 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 66 of 76

II.

After Quincy Allen received the death penalty and lost his direct appeal in state

court, he sought relief in South Carolina’s post-conviction relief (PCR) court. That court

considered and rejected Allen’s arguments against his death sentence. He tried again in

federal court, arguing that the sentencing judge failed to consider all the evidence he

offered in mitigation and that the judge applied the wrong standard for analyzing his

mental-health evidence. 1 The district court denied relief, concluding that Allen failed to

show that the PCR court’s ruling rejecting these arguments was contrary to, or an

unreasonable application of, clearly established federal law or based on an unreasonable

determination of the facts. See

(d). The district court’s conclusion was

correct. Because fairminded jurists could agree with the PCR court’s decision, the majority

errs in overriding the state court to grant relief.

A.

Allen contends that the PCR court made an unreasonable determination of the facts

or application of law when it found that the sentencing judge considered all the mitigating

1 This opinion focuses on the ground on which the majority grants relief. But the other four claims included in the certificate of appealability also fail under AEDPA’s deferential standard. The majority does not address Allen’s other two sentencing-related claims. See supra, at 35–36 n.15. As for the remaining two assignments of error, the majority rejects them, correctly denying Allen relief from his guilty plea. See supra, at 36 n.16. The PCR court determined that, in pleading guilty, Allen relied on counsel’s advice that he had a better chance for a life sentence with the judge than with a jury and counsel’s strategic decision in this regard was not constitutionally ineffective assistance. These decisions were not “contrary to” or an “unreasonable application of” clearly established federal law, nor were they “based on an unreasonable determination of the facts.”

(d). 66 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 67 of 76

evidence Allen presented. Allen argues that, to the contrary, the sentencing judge confined

his consideration of mitigating evidence to Allen’s “mental state during the crimes and at

trial” and “did not discuss any aspect of [his] non-mental-health mitigating evidence in any

depth.” Opening Br. at 52–53.

The Eighth Amendment to the United States Constitution requires that a sentencer

“be able to consider and give effect to” a capital defendant’s relevant mitigation evidence.

Tennard v. Dretke,

(2004) (internal quotation marks omitted). Relevant

evidence offered in mitigation cannot be excluded from the sentencer’s consideration,

whether by statute, evidentiary ruling, or the sentencing court’s refusal to consider

evidence as a matter of law. Mills v. Maryland,

(1988); see Eddings v.

Oklahoma,

, 113–114 (1982). Likewise, the sentencer must be “permitted to

give that evidence meaningful, mitigating effect in imposing the ultimate sentence.”

Abdul-Kabir v. Quarterman,

(2007). In other words, the State may not

prevent a capital sentencer from considering relevant mitigation evidence and according

that evidence significance in its sentencing decision. But the Constitution does not require

a sentencer to conclude that any evidence mitigates a defendant’s culpability or otherwise

warrants a sentence of life instead of death. Rather, the sentencer retains discretion, within

the bounds of state law, to “determine the weight to be given relevant mitigating evidence.”

Eddings,

.

The sentencing judge here did not exclude or refuse to consider Allen’s mitigation

evidence. No statute or rule prevented the judge from considering the evidence. Indeed,

South Carolina law required the sentencing judge to consider both statutory and

67 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 68 of 76

nonstatutory mitigating circumstances. See

(C) (2005). Nothing

in the record suggests that the sentencing judge believed he could not consider, or otherwise

would not consider, any of the mitigation evidence Allen offered.

To the contrary, the sentencing judge expressly stated that he considered all of

Allen’s evidence. For example, at the sentencing hearing, the judge stated:

In considering the outcome of this sentencing hearing I have tried to understand the unique forces and events which have put Mr. Allen in the situation in which he finds himself today. I have considered his upbringing so masterfully chronicled by Debra Grey. I’ve considered his list of mental illness as described by Dr. Pam Crawford.

I’ve considered the facts of the various murders that Mr. Allen does not deny. I’ve considered the impact to [the victims]. I’ve also considered the effect of this trial on Quincy Allen’s two younger brothers who have sat through the majority of this trial. And I have considered the passionate arguments of counsel on both sides of this case.

...

I have listened to and read the accounts of all of the psychiatrists and psychologists in this case: Doctors Hilkey, Gupta, Lavin, DeBeck, Hattem, Crawford, Mirza, Tezza, Corvin and Schwartz-Watts.

J.A. 1600, 1603; see also J.A. 1626 (judge pronouncing sentence “[a]fter carefully

considering all relevant facts and circumstances, including the existence of statutory

aggravating circumstances as well as the claim of mitigating circumstances”). A

reasonable jurist could credit the judge’s statements when announcing Allen’s sentence.

As the Supreme Court concluded in a similar circumstance: “We must assume that the trial

judge considered all [the defendant’s mitigation] evidence before passing sentence. For

one thing, he said he did.” Parker v. Dugger,

, 314–315 (1991), holding

modified by Brown v. Sanders,

(2006).

68 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 69 of 76

The sentencing judge then went on to discuss in detail some of Allen’s evidence—

particularly his evidence of mental illness—and describe how he assessed it. Mental illness

was the most disputed mitigation argument and the one the defense pressed most

vigorously, so the judge’s lengthy discussion of that evidence is unsurprising. See, e.g.,

J.A. 1561–1562 (defense counsel asserting in closing argument that “[t]here is only one

real disputed issue here,” and “[t]he one disputed issue is whether or not [Allen] was

mentally ill in the summer of 2002, whether or not he is mentally ill now”). Because the

State did not dispute Allen’s age or traumatic childhood, not much remained to be said

about those circumstances other than the fact that the judge considered them.

The post-sentence report further demonstrates that the sentencing judge considered

the evidence offered in mitigation but found it unpersuasive. On that form, the judge

indicated that several statutory mitigating circumstances, including the presence of a

mental disturbance, were “in evidence” but none were “found supported by the evidence.”

J.A. 1942; see

(C)(b) (2005). The judge explained, writing:

“Conclusive proof of mitigating circumstances was not found. Numerous psychiatrists and

psychologists testified to conflicting diagnoses of the Defendant’s mental health.” J.A.

1943. Thus, the sentencing judge acknowledged that Allen presented evidence in support

of mitigation, but the judge ultimately did not find the evidence to be mitigating, a decision

that South Carolina law entrusted to him alone. See State v. Bell,

(S.C.

1987).

The PCR court rightly concluded that the sentencing judge “consider[ed] the

mitigation evidence as presented.” J.A. 2582. As the district court put it, “the Constitution

69 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 70 of 76

does not require a capital sentencer to find the existence of a mitigating factor, only to

consider all of the evidence offered in mitigation,” and Allen “does not rebut the record’s

clear indication that [the sentencing judge] did, in fact, consider it.” J.A. 37. At a

minimum, the PCR court’s determination is not objectively unreasonable, as required for

federal habeas relief, because it is reasonable to read the sentencing judge’s statements as

considering and rejecting Allen’s mitigation claims. Because “fairminded jurists could

disagree on the correctness of the PCR court’s decision,” the law “precludes federal habeas

relief.” Richter,

(internal quotation marks omitted).

The majority nevertheless grants Allen federal habeas relief based on its own

reimagination of the law and the record. First, the majority incorrectly asserts that the

sentencing judge was required to “give effect to all of Allen’s mitigating evidence.” Supra,

at 43. As explained above, that is not true. The sentencing judge must be “permitted to

consider fully such mitigating evidence” and “permitted to give that evidence meaningful,

mitigating effect in imposing the ultimate sentence,” Abdul-Kabir,

(emphases added) (internal quotation marks omitted), but he is not required by clearly

established federal law to give particular weight to any evidence offered in mitigation, see

Eddings, 455 U.S. at 114–115. The majority’s conclusion that the sentencing judge “failed

to give meaningful consideration and effect to all of Allen’s mitigating evidence” is not a

critique founded in law; it is merely a statement that the majority would have evaluated

Allen’s evidence differently. Supra, at 43 (internal quotation marks omitted).

Second, and relatedly, much of the majority’s supposed proof that the sentencing

judge did not consider certain evidence Allen presented instead demonstrates that the judge

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did not find that evidence mitigating in Allen’s case. The majority conflates two uses of

the term “mitigating.” In one sense, all evidence a capital defendant introduces at the

penalty phase of trial is “mitigating evidence” because it “might serve as a basis for a

sentence less than death.” Tennard,

(internal quotation marks omitted).

But not all evidence offered for its potential mitigation value ultimately will be found by

the factfinder to warrant a lesser sentence—i.e., to “mitigate” the defendant’s culpability

or his punishment. And that judgment, of course, was for the sentencing judge to make.

For example, the majority reads the statements in the post-sentence report that

mitigating circumstances were not “found supported by the evidence” and “[c]onclusive

proof of mitigating circumstances was not found,” J.A. 1942–1943, to mean that the

sentencing judge refused to consider Allen’s evidence about “rumination disorder, anti-

social personality disorder, and childhood abuse” because those circumstances are

“potentially mitigating as a matter of law,” supra, at 46. But a reasonable jurist could

understand that the sentencing judge considered this potentially mitigating evidence—as

he said he did, see J.A. 1600—and was not persuaded that it in fact mitigated Allen’s

culpability or punishment.

Similarly, the majority takes issue with the sentencing judge’s statement, in

announcing his sentence, that he considered “the existence of statutory aggravating

circumstances as well as the claim of mitigating circumstances.” J.A. 1626. According to

the majority, mitigating circumstances “existed just as much as the aggravators did”

because Allen presented undisputed evidence of childhood abuse, rumination, and anti-

social personality disorder. Supra, at 48. But again, the sentencing judge was entitled to

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consider that evidence and find it not mitigating. More to the point for the purpose of this

federal habeas appeal, nothing in this statement suggests the judge ignored or overlooked

the evidence supporting Allen’s “claim of mitigating circumstances.” J.A. 1626.

The remainder of the majority’s supposed proof that the sentencing judge did not

consider all of Allen’s mitigation evidence focuses on his rumination disorder, an issue not

even Allen advances. Nowhere in his briefs does Allen argue that his rumination disorder

was a mental illness that the sentencing judge excluded or ignored; indeed, he mentions

the word “rumination” only twice—on a single page in the factual background of his

opening brief. See Opening Br. at 9. That is consistent with Allen’s treatment of the

disorder at trial.

According to the majority, the sentencing judge must have excluded rumination

from his consideration because he stated in a post-sentencing affidavit that Allen was not

“‘conclusively diagnosed to be mentally ill.’” Supra, at 44 (quoting J.A. 2010). Although

rumination qualifies as a “psychiatric illness,” J.A. 625, Allen’s witnesses repeatedly

referred to rumination as an “eating disorder,” see, e.g., J.A. 334, 336, 340, 540–543, 587,

590, 759, 760, 1323; see also J.A. 1922–1925, 1927–1930, 2169. By contrast, when

Allen’s counsel argued for mercy based on his mental illness, they focused on

schizophrenia—which they claimed made him “very dangerous,” “delusional,”

“oblivious,” “[n]onresponsive,” and “bizarre,” J.A. 1568, 1573–74, 1581—not rumination.

See, e.g., J.A. 1562–1586 (defense closing argument focusing on the “one disputed issue”

of “whether or not [Allen] was mentally ill in the summer of 2002, whether or not he is

mentally ill now”). As defense counsel made crystal clear: “Time has proven what is

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wrong with Quincy Allen. . . . [I]t is our position that he is schizophrenic, that he was

schizophrenic at the time, and he is schizophrenic now.” J.A. 1585. Given the context, the

sentencing judge’s statement about mental illness in his post-sentencing affidavit naturally

refers to the schizophrenia that Allen argued controlled his actions. It blinks reality to read

the judge’s comment as asserting that Allen never suffered from rumination. 2

The majority also infers that the sentencing judge must have refused to consider

rumination from the fact that he wrote on the post-sentence report that Dr. Crawford

diagnosed Allen with schizophrenia, omitting mention of a rumination diagnosis. See

supra, at 46–47. But the judge’s report is in line with Dr. Crawford’s testimony that her

diagnosis of Allen was schizophrenia. See J.A. 757 (“My diagnosis of him is

schizophrenia.”). Dr. Crawford discussed the criteria for diagnosing schizophrenia, the

symptoms, and how Allen’s statements during one of his crimes aligned with schizophrenic

delusions. Dr. Crawford also spent a significant amount of time discussing whether Allen

was malingering the schizophrenia—that is, faking the symptoms. In hundreds of pages

of testimony, Dr. Crawford mentioned rumination only in passing. Dr. Crawford’s main

dialog about rumination emphasized that Dr. Harding, Allen’s psychiatrist as a child, had

2 Regarding the post-sentencing affidavit, the majority also asserts that the PCR court’s “decision to ignore” it “when deciding Allen’s two-part mitigation evidence claim” “fatally undermined the fact-finding process” and “no rational fact-finder” would have done so. Supra, at 51 (internal quotation marks omitted). But Allen presented his mitigating evidence argument to the PCR court solely in the context of a claim that counsel rendered ineffective assistance by failing to object during the sentencing hearing. See J.A. 2542–2543, 2581–2582. The post-sentencing affidavit was written months after the sentencing hearing and thus could not possibly be relevant to the PCR court’s assessment of Allen’s claim. 73 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 74 of 76

made the rumination diagnosis and she merely adopted his understanding. See J.A. 759

(“He also has a eating disorder not otherwise specified, what Dr. Harding referred to as the

atypical eating disorder, the rumination.”). In fact, Dr. Crawford emphasized that she

“certainly was not an expert in rumination.” J.A. 760.

At bottom, the majority claims the sentencing judge did not give sufficient

consideration and weight to some of the evidence Allen offered in mitigation. Even

accepting that premise, it cannot support federal habeas relief under the standards imposed

by Congress. See

(d). Having identified neither an objectively

unreasonable factual determination by the PCR court nor a “materially indistinguishable”

Supreme Court decision that the PCR court contradicted, the majority errs in granting

relief. Bell,

; see also Burr,

.

B.

Allen also contends that the sentencing judge analyzed his mental health evidence

under the wrong legal standard. The PCR court was not persuaded that the sentencing

judge “confused the competency to be executed standard with the standard for finding

mental illness,” concluding that the record was “more fairly read to reflect a global

assessment of the facts and circumstances before the sentencing judge, which he

considered, weighed and narrowed, until arriving at his sentencing conclusion.” J.A. 2582.

After comprehensively reviewing the sentencing judge’s analysis, the district court agreed,

explaining that the judge found Allen competent to be executed “but did not end his

analysis there.” J.A. 35. The majority does not decide this question.

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The PCR court’s conclusion was reasonable. Tracking the defense’s argument

about mental illness, the sentencing judge first discussed whether Allen was mentally ill

around the time of the murders, concluding that Allen did not have “a major mental illness

at the time of the crimes” and “if indeed he had schizophrenia, it was not evident and the

disease did not control his mind to such a degree as to exonerate or lessen the culpability

of his actions.” J.A. 1601, 1603. 3 Then the judge considered whether Allen was mentally

ill at the time of trial. It was in the context of this second inquiry that the sentencing judge

discussed the standard for competency to be executed, among other considerations.

Allen argues that the sentencing judge’s post-sentencing affidavit shows that he

applied too strict a standard to Allen’s evidence of mental illness. In that affidavit, the

judge wrote that he had told the defense lawyers before trial, in not so many words, that

they “would have to trust Dr. Crawford to convince [him] that Mr. Allen was so mentally

ill throughout the time of his crimes and was so mentally ill at the time of trial, that

imposition of the death penalty would violate the Eighth Amendment’s ban on cruel and

unusual punishment.” J.A. 2009. Considered in isolation, the implication of the affidavit

is troubling. But we may not consider it isolated from the judge’s explanation for his

3 Two statutory mitigating factors under South Carolina law concern the effect of mental illness on the defendant at the time of the crime. See

- 20(C)(b)(2), (6) (2005). Throughout closing arguments, defense counsel portrayed Allen as so impaired, even controlled, by mental illness at the time of the crimes that he was not able to act rationally. See, e.g., J.A. 1569 (“[H]is aha [moment] was I’m a serial killer. This is my job and this is what I am supposed to do. I have no control over it.”); J.A. 1572– 1573 (“[H]e is delusional and has set out to complete his mission of being a serial killer because he believes that that’s what he has to do, that he is compelled to do that, that that is his job.”). 75 USCA4 Appeal: 20-6 Doc: 56 Filed: 07/26/2022 Pg: 76 of 76

sentencing decision on the record at the sentencing hearing seven months earlier. Assessed

as a whole, the record is at worst ambiguous, meaning reasonable jurists could disagree

and we may not upset the PCR court’s judgment. See Mays,

.

III.

The state PCR court considered and rejected Allen’s arguments about the sentencing

judge’s treatment of his mitigation evidence in this South Carolina capital case. Because

that determination “was not so obviously wrong as to be ‘beyond any possibility for

fairminded disagreement,’” we are bound by federal law to defer to the state court and deny

habeas relief. Kayer,

(quoting Richter,

); see

(d). The majority, however, “set[s] aside reasonable state-court determinations of

fact in favor of its own debatable interpretation of the record.” Rice v. Collins,

(2006). I cannot go along with the majority’s retelling or its disregard of the

“settled rules that limit [our] role and authority.”

76