No. 18-6
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
March 22, 2023
PUBLISHED. Argued: October 26, 2022. Appeal from the United States District Court for the District of South Carolina, at Aiken. R. Bryan Harwell, Chief District Judge. (1:16-cv-00845-RBH)
Before GREGORY, Chief Judge, HARRIS, and QUATTLEBAUM, Circuit Judges.
Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Harris joined. Judge Quattlebaum wrote a dissenting opinion.
GREGORY, Chief Judge:
Sammie Louis Stokes filed a federal habeas pеtition pursuant to
In Shinn, the Supreme Court held that a federal habeas court may not hold an evidentiary hearing unless the restrictive conditions of
I.
In 1999, Stokes was convicted of murder and related charges in South Carolina state court and sentenced to death. After an unsuccessful direct appeal, Stokes filed an application for postconviction relief (“PCR“) in state court. Stokes‘s counsel in the state PCR proceedings initially raised a Sixth Amendment ineffective-assistance-of-cоunsel claim based on his trial attorneys’ failure, at sentencing, to present any mitigating evidence regarding Stokes‘s severely
With the assistance of new counsel, Stokes then filed a habeas petition in the U.S. District Court for the District of South Carolina pursuant to
Before the hearing, the State argued that
After the evidentiary hearing, the magistrate judge issued a Report and Recommendation that recommended denying all relief. In the Report and Recommendation, the magistrate judge conducted an in-depth analysis of Stokes‘s ineffective-assistance-of-trial-counsel claims—relying on evidence from the hearing—and concluded that they failed. See J.A. 37331 (“Petitioner has not met his burden of showing that trial counsel were deficient, and, thus, has also failed to show that they were ineffective.“); J.A. 3734 (“[E]ven if Petitioner were able to establish deficiency by trial counsel, his ineffective-assistance-of-trial-counsel claim lаcks merit, as he has not shown resulting prejudice for the reasons explained below.“). The State “filed no objection and agree[d] with the Magistrate‘s Report and Recommendation.” J.A. 3797. The district court also agreed with the magistrate judge‘s conclusions and denied Stokes relief. See J.A. 3849 (concluding that Stokes “fail[ed] to show Strickland prejudice” based on trial counsel‘s failure to present mitigating evidence).
This Court vacated the district court‘s decision. Stokes v. Stirling, 10 F.4th 236, 239 (4th Cir. 2021). Starting with the Martinez question, we held that Stokes‘s state PCR counsel were ineffective because they “fail[ed] to develop and present a claim based on trial counsel‘s mitigation efforts.” Id. at 245. We focused on state PCR counsel‘s failure to adequately investigate Stokes‘s traumatic personal background or retain an expert who could “screen for mental or psychological defects,” even though they “knew about adversity in Stokes‘s background from trial counsel‘s cursory investigation” and “hired their own investigator, whose additional interviews generated rich leads about Stokes‘s psychological, educational, and familial history.” Id. at 247. We rejected the State‘s argument that state PCR counsel had abandoned the mitigation claim for strategic reasons, in part because they admitted at the federal evidentiary hearing that they had no strategic justification for not pursuing it. Id. at 247–49. After concluding that Stokes‘s underlying ineffectiveness-of-trial-counsel claim was a “substantial” one, we excused Stokes‘s procedural default under Martinez. Id. at 250–51.
Proceeding to the merits of Stokes‘s underlying claim, we held that his trial counsel provided ineffective assistance by failing to investigate, develop, and present personal mitigation evidence. Id. at 251. As to Strickland‘s deficient performance prong, trial counsel failed to conduct an adequate investigation into Stokes‘s “extraordinarily traumatic childhood,” during which he suffered chronic sexual and physical abuse and witnessed firsthand his parents’ substance abuse and their subsequent deaths. Id. at 240; see Strickland v. Washington, 466 U.S. 668, 687–88 (1984). This omitted evidence was particularly important because trial counsel did not meaningfully contest Stokes‘s guilt, instead choosing to focus their defense on sentencing. See Stokes, 10 F.4th at 241. Although they “had little-to-no experience preparing a mitigation defense,” they failed to consult any experienced attorneys, hired an inexperienced investigator, neglected to pursue the investigator‘s findings, and chose not to consult the expert witnesses they did retain about the compelling mitigating evidence. Id. at 251–52. In addition, trial counsel‘s decision to withhold what personal mitigating evidence they had collected was objectively unreasonable. Id. at 252. At the federal evidentiary hearing, they testified that they decided to withhold the evidence because they believed jurors would react negatively to Stokes‘s life story. See id. at 252–53. We concluded that this rationale was objectively unreasonable, particularly considering that trial counsel failed to offer any personal mitigating evidence. Id. The defense‘s sole witness at sentencing was a retired warden and “prison adaptability expert” who had never spoken to Stokes and said nothing about the trauma Stokes experienced as a child. See id. at 253.
Turning to Strickland‘s prejudice prong, we held that trial counsel‘s deficient performance prejudiced Stokes. Id. at 254–56; see Strickland, 466 U.S. at 694–95. While recognizing the substantial aggravating evidence, we determined there was a reasonable probability at least
The State sought rehearing en banc, which we denied. It then filed a petition for a writ of certiorari in the Supreme Court. In both its petition for a rehearing en banc and its cert. petition, the State argued that
The Supreme Court did not act on the State‘s petition until it decided Shinn v. Ramirez. In Shinn, it held that “under
On May 31, 2022, the Supreme Court granted certiorari, vacated this Court‘s judgment, and remanded to the Fourth Circuit “for further consideration in light of Shinn.” Stirling v. Stokes, 142 S. Ct. 2751, 2751 (2022). On remand, we directed the parties to file simultaneous supplemental briefs addressing two issues: (1) whether the State waived the
II.
We start by considering whether the State waived or forfeited the argument that
It is well-established that “[a] party‘s failure to raise or discuss an issue in [its appellate] brief is to be deemed an abandonment of that issuе.” Mayfield v. Nat‘l Ass‘n for Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir. 2012) (quoting 11126 Baltimore Blvd., Inc. v. Prince George‘s Cty., Md., 58 F.3d 988, 993 n.7 (4th Cir. 1995)). “Even appellees waive arguments by failing to brief them.” Mironescu v. Costner, 480 F.3d 664, 677 n.15 (4th Cir. 2007) (quoting United States v. Ford, 184 F.3d 556, 578 n.3 (6th Cir. 1999)); see Hillman v. I.R.S., 263 F.3d 338, 343 n.6 (4th Cir. 2001). In Hillman, we explained that an appellee need not state the precise relief sought on appeal, because
On multiple occasions, this Court has declined to address an argument that an appellee did not raise properly on appeal. In United States v. Clay, for example, we concluded that the appellee‘s “newly minted argument, made for the first time at oral argument, is waived in this appeal” because the appellee failed to raise it in its brief. 627 F.3d 959, 966 n.2 (4th Cir. 2010). Similarly, in Mironescu, we declined to address whеther the district court had violated the Suspension Clause by denying a habeas petitioner (the appellee) an opportunity to present certain claims because the petitioner did not raise the issue on appeal. See 480 F.3d at 677 n.15 (citing Hillman, 263 F.3d at 343 n.6).
So, too, here. In his opening appellate brief, Stokes cited to evidence from the federal evidentiary hearing to support his Martinez claim and his underlying ineffectiveness-of-trial-counsel claims. The State, in its response brief, relied heavily on evidence from that hearing to argue that the district court correctly rejected Stokes‘s claims on the merits. Even assuming the State preserved a
The State now claims its appellate brief discussed the evidence from the federal hearing only in relation to the Martinez excuse-of-default question—that is, to support its argument that Stokes‘s underlying ineffectiveness-of-trial-counsel claim was not “substantial.” But a cursory look at the State‘s brief shows that its use of the evidence was not so limited. The brief cited to dozens of pages from the federal evidentiary hearing transcript in an effort to fully establish that “deficient performance and prejudice do[] not exist under Strickland v. Washington.” Resp. Br. 31 (cleaned up); see id. at 31–32, 36–41, 48–50, 51–52.
Nor was it enough that the State belatedly raised the
No other precedent in this Circuit requires a contrary result. In Young v. Catoe, we remarked that the appellees had raised an alternative ground for affirming the district court‘s judgment “via the unnecessary vehicle of cross-appeal.” 205 F.3d 750, 762 n.12 (4th Cir. 2000). According to the State, Young establishes that appellees are not bound by waiver and forfеiture rules. But Young suggests only that the party who prevailed in the district court is not required to file a separate cross-appeal to preserve an argument. This does not mean that an appellee can ignore an issue in its briefing without forfeiting it.
Nor does our decision in Mahdi v. Stirling generally exempt appellees from waiver and forfeiture rules. 20 F.4th 846 (4th Cir. 2021). There, the state PCR court had held that a habeas petitioner waived a particular claim. Id. at 895. When the petitioner tried to raise the same claim in federal district court, the court rejected it on the merits without addressing his earlier waiver in state court. Id. On appeal, this Court relied on the petitioner‘s state-court waiver to affirm, even though “neither the Parties nor the district court address[ed]” it. Id. In the State‘s view, Mahdi shows that an appellee does not forfeit an argument (there, the petitioner‘s state-court waiver) by failing to raise it in the district court or on appeal. But at most, Mahdi is a reminder that we have discretion to affirm based on a ground that neither party addresses. It does not establish that an appellee is immune from waiver and forfeiture rules.
Finding no support in Fourth Circuit precedents, the State seeks refuge from other circuits, some of which have stated that appellees generally are “not required to raise all possible alternative grounds for affirmance in order to avoid waiving any of those grounds.” Independence Park Apartments v. United States, 449 F.3d 1235, 1240 (Fed. Cir. 2006); see, e.g., Ms. S. v. Reg‘l Sch. Unit 72, 916 F.3d 41, 48–49 (1st Cir. 2019). But even in those circuits, courts have discretion to enforce waiver and forfeiture rules against appellees; enforcement “depends on the particular facts of the case.” Ms. S., 916 F.3d at 49 (quotation marks omitted). In a similar context, our sister circuits have held that the law-of-the-case doctrine may bar appellees from raising in a successive appeal an issue they failed to raise during the first. See, e.g., Haynes Trane Serv. Agency, Inc. v. Am. Standard, Inc., 573 F.3d 947, 963 (10th Cir. 2009) (enforcing appellee‘s waiver when it would be “unfair” to the appellant to excuse it); Schering Co. v. Ill. Antibiotics Co., 89 F.3d 357, 358–59 (7th Cir. 1996) (enforcing appellees’ waiver because the appellees, “by reserving their challenge to the district сourt‘s evidentiary ruling[,] have put themselves in the position of asking us to reexamine our previous ruling on the basis of [previously available] evidence“).
Accordingly, we hold that the State forfeited the
B.
In an effort to avoid the consequences of its forfeiture, the State claims we must reach the issue sua sponte because
The Supreme Court “has long rejected the notion that all mandatory prescriptions, however emphatic, are . . . properly typed jurisdictional.” Gonzalez v. Thaler, 565 U.S. 134, 146 (2012) (quotation marks omitted). A rule is jurisdictional only “[i]f the Legislature clearly states that [it] shall count as jurisdictional.” Id. at 141–42 (emphasis added). In Gonzalez, for example, the Supreme Court held that
Likewise,
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
The text of a neighboring AEDPA provision reinforces our conclusion. Section
We also find it relevant that in Shinn itself, the Supreme Court treated
In short, we see no reason to treat this case any differently than the Supreme Court has treated forfeitures of other defenses to federal habeas claims: we have discretion to excuse the forfeiture, but we are not obligated to do so. See id.; Day v. McDonough, 547 U.S. 198, 208–09 (2006) (timeliness of habeas petitions); Schiro v. Farley, 510 U.S. 222, 229 (1994) (nonretroactivity defense).
C.
The next question, then, is whether we should exercise our discretion to excuse the State‘s forfeiture in this case. We decline to do so beсause it would produce marked injustice and reward the State for “sandbagging” this Court during earlier proceedings. Hillman, 263 F.3d at 343 n.6.
1.
“[A] federal court does not have carte blanche to depart from the principle of party presentation basic to our adversary system.” Wood v. Milyard, 566 U.S. 463, 472 (2012). In a few different cases, the Supreme Court has explained when it may be appropriate to excuse a state‘s failure to raise other defenses to federal habeas claims. Excusing a state‘s forfeiture is warranted in “extraordinary circumstances,” where the state “inadvertently”
Stokes contends that the State did not merely forfeit the
That said, the nature of the State‘s forfeiture is relevant as we consider which direction “the interests of justice” point. Day, 547 U.S. at 210. Here, the record strongly suggests that the State made a conscious, strategic decision not to litigate the
It is unsurprising that the State does not engage with the Supreme Court‘s decisions in Day or Wood, given that considerations of justice and fairness point so strongly against excusing its forfeiture. It is difficult to conceive of a case where a party would be more “significantly prejudiced” by a decision to reach an unpreserved issue. Id. at 210. We have already held that Stokes was deprived of his Sixth Amendment right to effective counsel during his capital sentencing. The State now urges us to strike that decision—and rubber-stamp an unconstitutional death sentence—based on an evidentiary limitation the State knew might apply but invited us to ignore on appeal. If excusing the State‘s forfeiture in this scenario best served “the interests of justice,” id., justice would be a hollow word indeed.
2.
Nothing in Shinn requires us to excuse the State‘s forfeiture here. In Shinn, Arizona had not objected to some evidentiary development during habeas proceedings in the district court. See 142 S. Ct. at 1730 n.1. On appeal to the Supreme Court, the petitioner argued that Arizona had also failed to raise the
The present case is different than Shinn in important respects. The record in Shinn indicated that Arizona made “an inadvertent error” by neglecting to raise the
And beyond the obvious injustice it would create, overlooking the State‘s decision not to litigate the
To be sure, the Shinn Court looked to a stаte‘s interest in the finality of a criminal conviction and sentence to justify excusing Arizona‘s forfeiture of the
3.
Finally, the State points out that the Supreme Court granted certiorari, vacated our prior decision, and remanded for further proceedings, even though Stokes‘s brief in opposition to certiorari argued that the State had forfeited the
4.
A
That the playing field in
Our forfeiture rules exist to “provide a substantial measure of fairness and certainty to the litigants who appear before us,” and “we strive to apply [them] on a consistent basis.” Holness, 706 F.3d at 592. We have not hesitated to enforce these rules against criminal defendants on remand from a grant, vacate, and remand order. See Vanegas, 612 F. App‘x at 666. Fairness dictates that we hold the State to the same standard, especially in a capital case. See Rummel v. Estelle, 445 U.S. 263, 272 (1980) (noting that a death sentence raises “unique” concerns).
III.
For the reasons stated above, we reaffirm our prior decision holding that Stokes‘s trial counsel provided constitutionally ineffective assistance. Accordingly, we direct the district court to issue the writ of habeas corpus unless the State grants Stokes a new sentencing hearing within a reasonable time. The district court‘s order dismissing Stokes‘s habeas petition is
VACATED AND REMANDED.
QUATTLEBAUM, Circuit Judge, dissenting:
Previously, we reversed the judgment of the district court that dismissed Sammie Stokes’
Despite the Supreme Court‘s express instruction for us to reconsider this case in light of Shinn, the majority holds that we can ignore that decision‘s holding because the State forfeited the
I.
I begin with a review of Shinn. There, two petitioners were convicted of capital crimes in Arizona state court and sentenced to death. The Arizona Supreme Court affirmed the convictions and sentences on direct review. The petitioners were also denied state post-conviction relief. After both filed for federal habeas relief, the respective district courts held that the petitioners’ ineffective assistance of trial counsel claims were procedurally defaulted because they did not properly present those claims in state court. Id. at 1729.
In one case, the district court permitted the petitioner to supplement the record to include evidenсe that was not presented in state court to support his request to excuse
In the other case, the district court held an evidentiary hearing to determine whether cause existed to excuse the procedural default and if declining to hear the claim would result in actual prejudice. The district court forgave the procedural default and held, on the merits, that the state trial counsel provided ineffective assistance of counsel. Id. at 1730. Arizona appealed, arguing that
The Supreme Court reversed the Ninth Circuit, holding that the federal habeas courts may not conduct an evidentiary hearing or consider evidence beyond the state court record. The Court reasoned that
Since Shinn, the Supreme Court reiterated
marks and citation omitted). And the circuit courts that have addressed this question post-Shinn have acknowledged the Supreme Court‘s clear guidance precluding federal courts from conducting evidentiary hearings or considering evidence beyond the state court record. See, e.g., Houston v. Phillips, No. 20-6102, 2022 WL 3371349 (6th Cir. Aug. 16, 2022) (“In short, federal habeas courts are prohibited, by statute, from granting evidentiary hearings when petitioners have ‘failed to develop the factual basis of [their] claim[s] in State court proceedings.‘” (quoting Shinn, 142 S.Ct. at 1728)); Williams v. Superintendent Mahanoy SCI, 45 F.4th 713, 720 (3d Cir. 2022) (”
Without question, Shinn abrogates the opinion the majority reinstates. The opinion‘s analysis and conclusions about Stokes’ ineffective counsel claim depend almost entirely on the record developed before the magistrate judge in federal court. That is the precise type of evidence that
II.
For good reason, the majority does not even try to justify its decision under Shinn. Instead, it concludes that the State forfeited the application of
A.
First, the State preserved the
When Stokes then appealed to us, it is true that the State did not raise the
True, an appellant is considered to have abandoned an argument not included in his opening briefs. See A Helping Hand, LLC v. Baltimore Cnty., 515 F.3d 356, 369 (4th Cir. 2008). But there is good reason for treating an appellant and an appellee differently. They are in materially different procedural postures. As the losing party before the district court, the appellant seeks relief on appeal. As suсh, the appellant carries the burden of establishing an error. The appellee, in contrast, won below. The appellee only seeks to maintain the status quo. And without a burden to show that the judgment below should be altered, we should not require the appellant to raise an argument at the risk of forfeiture.
Here, the first time the State sought relief from us was when it moved for rehearing of our panel decision that reversed the district court‘s order granting it summary judgment. At that point, it raised
To be fair, the circuits appear divided on this issue. See Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) (unlike the obligations of the appellant, the briefing requirements for the appellee‘s brief are not considered categorical imperatives since a court of appeals may affirm the district court on any grounds supported by the record, including grounds not relied on by the district court or contained in the appellee‘s brief); International Ore & Fertilizer Corp. v. SGS Control Servs., Inc., 38 F.3d 1279, 1286 (2d Cir. 1994) (“This rule applies even when the alternate grounds were not asserted until the court‘s questioning at oral argument.“); Kennedy v. City of Villa Hills, Ky., 635 F.3d 210, 214 n.2 (6th Cir. 2011) (noting that appellees do not waive claims by failing to respond to appellant‘s arguments on appeal); see also Eichorn v. AT&T Corp., 484 F.3d 644, 657-58 (3d Cir. 2007) (concluding that appellees were not required to raise all possible alternative grounds for affirmance to avoid waiving those grounds); Laitram Corp. v. NEC Corp., 115 F.3d 947, 954 (Fed. Cir. 1997) (recognizing that appellees do not select the issues to be appealed); but see Hamilton v. Southland Christian Sch, 680 F.3d 1316, 1318-19 (11th Cir. 2012)(concluding that the appellee abandoned a defense by failing to list or state it as an issue on appeal).
In deciding that the State forfeited the issue, the majority joins the Eleventh Circuit‘s approach. It suggests that result is dictated by Mayfield v. National Association for Stock Car Auto Racing, Inc., 674 F.3d 369 (4th Cir. 2012), United States v. Clay, 627 F.3d 959 (4th Cir. 2010), Mironescu v. Costner, 480 F.3d 664 (4th Cir. 2007), and Hillman v. I.R.S., 263 F.3d 338 (4th Cir. 2001). But while those cases provide some suрport for the majority‘s conclusion, they do not settle the issue. Mayfield
B.
But even if the State forfeited an argument that
First, the Supreme Court instructed us to consider the appeal in light of Shinn. And it did so over Stokes’ objections that the State had forfeited the
Second, as described above,
Third, declining to excuse any forfeiture reinstates an opinion that, by any measure, is directly foreclosed by the Supreme Court‘s holding in Shinn. Any frustration with the State not raising the
Fourth, the majority explains that one of the reasons we should not excuse forfeiture is because doing so would allow an unconstitutional sentence to stand. I disagree with that conclusion for two reasons. One, in determining that the sentence was unconstitutional, the panel majority considered evidence that, by law, we cannot consider. And two, I would not deny his petition. Although I find it hard to see how Stokes could succeed if, as the law requires, his petition is limited to the state court record, I would nevertheless remand the case tо the district court to evaluate the petition in accordance with
III.
The decision we reinstate today could not possibly stand under Shinn. It is based