James W. Wilson v. JON E. OZMINT, Director, South No. 03-3  Carolina Department of Corrections

Filed: February 17, 2004
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JAMES W. WILSON,
Petitioner-Appellee,
v.
JON E. OZMINT, Director, South No. 03-3
 Carolina Department of Corrections; (CA-02-2030-0-10BD)
HENRY DARGAN MCMASTER,
Attorney General, State of South
Carolina,
Respondents-Appellants. 
ORDER
Before the court is a motion by appellee Wilson for leave to file
a petition for rehearing and a suggestion for rehearing en banc out of
time, together with a proposed petition and suggestion. The court
hereby denies the motion and dismisses as untimely the petition and
suggestion.
For the reasons, and in the manner, set forth below, however, Part
VI of our opinion of December 17, 2003 is hereby amended.
In our earlier panel opinion, we held that Wilson was precluded
from raising in federal court either of his claims related to a report
prepared by the Quality Care Review Board (QCRB), because he was
either procedurally barred from raising, or failed to exhaust, those
claims in state court. See Slip Op. at 25-26. In his submitted petition
for rehearing, Wilson argues that this holding was in error because the
South Carolina Supreme Court’s order, which granted his motion to
defer, authorized him to pursue both claims in post-conviction relief.1
1The order of the South Carolina Supreme Court stated simply that
Wilson’s "Motion to Defer Consideration is granted." J.A. 3159.

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Wilson only obliquely referenced this argument in a single sentence
of his merits brief to this court,2 and made no mention of it whatso-
ever at oral argument.
Notwithstanding Wilson’s failure to provide any support for the
bare assertion in his brief that it was error for the state courts to hold
that his QCRB claims were procedurally defaulted, we considered and
dismissed the argument on the ground that Wilson’s motion to defer
consideration (and the state Supreme Court’s grant of that motion)
only allowed him to raise these claims at a later date before the state
Supreme Court, and did not authorize him to raise them subsequently
in post-conviction relief proceedings. In so holding, we accepted,
without any argument from Wilson to the contrary, the state PCR
court’s conclusion that the state Supreme Court’s order "merely
authorized that Court, not [the state PCR court], in an appeal from the
state PCR action, if any to consider the matter de novo." Slip Op. at
25 (quoting J.A. 587).
In his petition for rehearing, Wilson now expansively advances the
argument that the state PCR court erred in its procedural default rul-
ings, and he grounds this argument on the specific language of the
request that he made to the South Carolina Supreme Court in his
motion to defer consideration, for the first time on this appeal provid-
ing citation to and quotations from this motion. (The contents of this
motion were mentioned in neither the opinion of the district court nor
the state post-conviction relief court.). As Wilson’s petition now
reveals, this motion asked the state Supreme Court, not merely, as our
panel opinion stated, "to review the reports with experts and to take
additional testimony," slip op. at 24, but also to "defer consideration
of the issues raised by appellant’s fourth exception . . . to such collat-
eral proceedings as may later be held . . . pursuant to the Post-
Conviction Procedures Act, S.C. Code § 17-27-10." J.A. 3837.
2The single sentence in Wilson’s 124-page brief referencing this argu-
ment stated, without citation, that "[t]hese [state procedural] rulings,
however, are completely inconsistent with the state Supreme Court’s
prior determination that the QCRB report should be litigated in post-
conviction." Petitioner’s Br. at 65. In a footnote on the same page, Wil-
son also argued erroneously that the state abandoned these claims in its
brief. Compare id. at 65 n.23 with Appellant’s Br. at 75-76 (arguing
expressly that Wilson procedurally defaulted these claims in state court).
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Despite Wilson’s failure to develop this argument or even to direct
the court to the source on which this argument depends, we amend
our opinion to reflect the actual requests made in Wilson’s motion to
defer consideration of his claims related to the QCRB report and, as
discussed below, the somewhat different conclusions that we now
reach on the question of whether Wilson’s procedural default in state
court bars our review of his federal claims here. We are willing to do
so in this circumstance because the requests made by Wilson in his
motion to the state supreme court, not brought to the court’s attention
until after it issued its opinion in this case, render the panel opinion’s
analysis of these claims unresponsive to the unique circumstances
surrounding the state post-conviction relief court’s determination that
Wilson had procedurally defaulted these claims. The mandate of the
court has not yet issued in this case, and, therefore, we may, at our
discretion, "amend what we previously decided to make it conform,"
to the facts of the case, see Alphin v. Henson, 552 F.2d 1033, 1035
(4th Cir. 1980), without need of finding that the case presents the sort
of "grave, unforeseen contingencies," which would be necessary to
recall a mandate that had already issued, see Calderon v. Thompson,
523 U.S. 538, 550 (1998).
After consideration of the cited motion and presented arguments,
we conclude that Wilson was not barred from raising these claims in
federal court for the reasons that we stated in our panel opinion. We
find, however, that Wilson is barred from challenging the trial court’s
in camera review of the QCRB report in federal court because he
defaulted that claim in state court due to his counsel’s invitation of
such review. We also hold that the state PCR court’s decision, affirm-
ing the trial court’s order quashing Wilson’s subpoena of the QCRB
report, was both not "objectively unreasonable" under 28 U.S.C.
§ 2254(d)(1) and harmless under the standard set forth in Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993). Therefore, we affirm our pre-
vious judgment, vacating the district court’s grant of the writ of
habeas corpus, but order that Part VI of our panel opinion is amended
so as to substitute the reasoning and conclusions below for the reason-
ing and conclusions that appear in Part VI of our panel opinion:
The Quality Care Review Board conducted an investigation into
the adequacy of Wilson’s treatment in the state mental health system
in South Carolina, following Wilson’s shooting spree at Oakwood
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Elementary School. The investigation culminated in a report (the
"QCRB report"), detailing Wilson’s history in the state mental health
system and tending to absolve the state of responsibility for Wilson’s
acts. Wilson subpoenaed the report from the Department of Mental
Health in April 1989. The department moved to quash the subpoena
and, at the suggestion of Wilson’s counsel, proposed that the state
trial court review the report in camera to determine the relevancy of
the documents. J.A. 944. Wilson’s counsel, Belser, told the court that
he had no problems with this procedure, J.A. 948, and, in fact,
informed the court that it would be reviewing the report in camera "at
our request." J.A. 944. After reviewing the report, the state trial court
found that it was not relevant to Wilson’s proceedings and quashed
the subpoena. J.A. 960.
In his appeal to the South Carolina Supreme Court, Wilson initially
listed the trial court’s denial of access to the report as Exception 4 in
his appeal, but, after the court gave Wilson access to the report, he
entered a motion for the court to "defer consideration of the issues
raised by appellant’s fourth exception . . . to such collateral proceed-
ings as may later be held . . . pursuant to the Post-Conviction Proce-
dures Act, S.C. Code § 17-27-10." J.A. 3837. The South Carolina
Supreme Court granted the motion, without explanation, on May 10,
1990, and, in its opinion addressing Wilson’s remaining claims, it did
not mention those related to the QCRB report. See generally, State v.
Wilson, 413 S.E.2d 19 (1992).
Wilson next attempted to raise his claims related to the QCRB
report before the state PCR court. The state PCR court rejected both
claims on procedural and substantive grounds. On procedural
grounds, it held that neither of Wilson’s claims could be raised before
a post-conviction relief court, because, under South Carolina law,
claims that could have been raised before a trial court or on direct
appeal may not be raised in post-conviction relief proceedings. J.A.
586; see Drayton v. Evatt, 430 S.E.2d 517, 519 (S.C. 1993) ("[E]rrors
which can be reviewed on direct appeal may not be asserted for the
first time, or reasserted, in post-conviction proceedings."). The state
PCR court reasoned that the state Supreme Court’s order granting
Wilson’s motion to defer did not alter the limited jurisdiction of a
post-conviction relief court under S.C. Code § 17-27-10. It explained,
"[t]he claim, as deferred by the South Carolina Supreme Court, is one
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solely within the appellate jurisdiction of the Supreme Court of South
Carolina because a trial court judge — at the time of the original
action — has already ruled on the matter." J.A. 588.
The state PCR court also held, in the alternative, that Wilson could
not challenge the trial court’s review of the QCRB report in camera,
either on direct appeal or in a PCR hearing, because Wilson’s counsel
invited the trial court’s action. J.A. 596-97.
The state court also rejected both of Wilson’s claims on substantive
grounds. It affirmed the trial court’s quashing of the subpoena on the
ground that, "it contained neither exculpatory nor mitigating evidence
that was undisclosed in a different form." J.A. 590. Likewise, the
PCR court rejected Wilson’s claim that the trial court improperly con-
sidered the QCRB report in sentencing him to death, finding that "the
sealed document was not considered by the trial judge for purposes
of either the acceptance of the plea of guilty but mentally ill or the
imposition of the particular sentence." J.A. 598 (emphases in origi-
nal).
In our panel opinion, we held that we were barred from considering
either of Wilson’s claims because Wilson either failed to exhaust, see
28 U.S.C. § 2254(b), or procedurally defaulted, see Coleman v.
Thompson, 501 U.S. 722, 750 (1991), his claims in state court. See
Slip Op. at 25-26. Reconsidering this holding in light of the specific
requests made by Wilson in his motion to the state Supreme Court to
"defer consideration of the issues raised by appellant’s fourth excep-
tion . . . to such collateral proceedings as may later be held . . . pursu-
ant to the Post-Conviction Procedures Act, S.C. Code § 17-27-10,"
J.A. 3837, we conclude that the procedural ground invoked by the
state PCR court, though itself sound and consistently applied, is inad-
equate in these particular circumstances to foreclose our review.
The state PCR court held that Wilson could not proceed with his
claims related to the QCRB report in post-conviction proceedings
because he could have raised these claims before the trial court or on
direct appeal. J.A. 586-88; Simmons v. State, 215 S.E.2d 883, 885-86
(S.C. 1975). Absent the state Supreme Court’s order granting Wil-
son’s motion to defer consideration of these claims to post-conviction
proceedings, see J.A. 3834-38, the state PCR court’s reliance on this
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"independent and adequate" state procedural rule would undoubtedly
bar him from raising those claims in federal court.3 However, the state
Supreme Court’s order granting Wilson’s motion presents the applica-
tion of this rule in an unlikely — and apparently unique — posture.
By allowing Wilson to defer consideration of his claims to post-
conviction relief proceedings, the order appears to sanction precisely
what the rule announced in Simmons, and applied consistently since,
prohibits: the consideration of issues that could have been raised at
trial or on direct appeal in a post-conviction relief proceeding. See
Simmons, 215 S.E.2d at 885-86.
Under these unusual circumstances, we must consider whether this
is an "exceptional case in which exorbitant application of a generally
sound rule renders the state ground inadequate to stop consideration
of a federal question." Lee v. Kemna, 534 U.S. 362, 376 (2002). We
believe that it is. As in Lee, Wilson "substantially complied with
[South Carolina’s] key rule." See 534 U.S. at 382-83. Wilson, after
all, did object to the trial court’s quashing of his subpoena, did list
that objection as an exception in his appeal of the trial court’s deci-
sion, and only failed to make his claim on direct appeal after he
received what he reasonably believed to be the blessing of the South
Carolina Supreme Court. Compare Lee, 534 U.S. at 382-83.4 Also as
in Lee, "no published [South Carolina] decision demands unmodified
application of the [r]ule[ ] in the [ ] situation [Wilson]’s case pre-
sented." Id. at 387. Wilson’s "predicament, from all that appears, was
one [South Carolina] courts had not confronted before." Id. at 382. In
these circumstances, we conclude that the application of the Simmons
3This rule is both "firmly established and regularly followed," see, e.g.,
Gibson v. State, 495 S.E.2d 426, 428 (S.C. 1998); Drayton, 430 S.E.2d
at 519; Cummings, 260 S.E.2d at 188; Irick v. State, 216 S.E.2d 545,
546-47 (S.C. 1975); Simmons, 216 S.E.2d at 885-86.
4While the order itself does not address whether or how it affected the
operation of the state’s procedural limitations on post-conviction relief,
we believe that Wilson’s reliance on it was reasonable in light of the
explicit request in his motion that "the Court issue its order deferring
consideration of the issues raised by appellant’s fourth exception . . . to
such collateral proceedings as may later be held in this case pursuant to
the Post-Conviction Procedures Act, S.C. Code § 17-27-10 et seq." J.A.
3837.
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rule to prevent Wilson from proceeding with his claim in state post-
conviction relief proceedings falls within that narrow class of cases
where an otherwise sound state rule proves not to be sufficiently ade-
quate to forbid federal review.
We nevertheless hold that we are barred from granting relief to
Wilson on his claim that the trial court improperly considered the
QCRB report in its sentencing decision. As the state PCR court held,
Wilson invited the trial court to take this action when he assured the
court that he had no problem with its consideration of the report in
camera. J.A. 594-95. Under South Carolina law, "the failure to object
to proceedings below waives the presentation of those issues on
appeal," or "in post-conviction absent an allegation of ineffective
assistance of counsel." See, e.g., Cummings v. State, 260 S.E.2d 187,
188 (S.C. 1979); Miller v. State, 236 S.E.2d 422, 428 (S.C. 1977)
(same). The preclusive effect of an invitation of error is, if possible,
more severe. See State v. Robinson, 147 S.E. 441, 443 (S.C. 1929)
(holding that "counsel is [ ] in no position to complain as to matters
. . . not only without objection on his part, but when solicited by
him"). This procedural rule is long-standing and has been strictly
applied in South Carolina and by this circuit, see, e.g., State v. Logan,
306 S.E.2d 622, 624 (S.C. 1983); Wilson v. Lindner, 8 F.3d 173, 175
(4th Cir. 1993) (en banc) (per curiam) (holding that "no exception to
the invited error doctrine has ever been adopted by this circuit"). It,
therefore, constitutes an adequate and independent basis for the state
PCR court’s rejection of Wilson’s claim.
Moreover, unlike the state PCR court’s procedural ruling based on
Simmons, this ruling is unaffected by the state Supreme Court’s order
granting Wilson’s motion to defer consideration. Wilson requested
that the South Carolina Supreme Court defer consideration of his
claim to post-conviction proceedings after he consented to the trial
court’s review of the report. The order, which only allowed Wilson
to defer consideration of his claims, did nothing to correct the preclu-
sive effect of this waiver. Accordingly, we vacate the district court’s
grant of relief on this claim. See Coleman, 501 U.S. at 750.
Because we hold that the state PCR court’s procedural ruling did
not rest on a sufficiently adequate state procedural ground on Wil-
son’s claim that the state PCR court unconstitutionally quashed his
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subpoena of the QCRB report, we now review the court’s rejection
of this claim on the merits. We reiterate that we may not grant a writ
of habeas corpus to Wilson unless we conclude either that the state
court’s decision was "contrary to, or an unreasonable application of,
clearly established Federal law," see 28 U.S.C. § 2254(d)(1), or that
its decision "was based on an unreasonable determination of the facts
in light of the evidence presented in State court proceedings," 28
U.S.C. § 2254(d)(2).
It is clear that the state PCR court’s decision was not "contrary to"
federal law. Although the state court did not quote — or even make
citation to — a federal case, this does not mean that it is "contrary to
. . . clearly established Federal law." See Mitchell v. Esparza, 124
S. Ct. 7, 11 (Nov. 3, 2003). In fact, the Supreme Court has held that,
with regard to the "contrary to" inquiry under section 2254(d)(1), "a
state court need not even be aware of [its] precedents, ‘so long as nei-
ther the reasoning nor the result contradicts them.’" Id. (quoting Early
v. Packer, 537 U.S. 3, 7-8 (2002) (per curiam)). The state PCR
court’s rejection of Wilson’s claim in this case was based on its con-
clusion that, "the trial judge properly found that [the QCRB report]
contained neither exculpatory nor mitigating evidence that was undis-
closed in a different form." J.A. 590. We believe this demonstrates
that the court was conducting the proper inquiry, under Skipper v.
South Carolina, 476 U.S. 1 (1986), and that therefore its decision was
not "contrary to . . . clearly established Federal law." See id. at 5
(holding that the relevant question is whether the court’s decision "de-
prived the petitioner of his right to place before the sentencer relevant
evidence in mitigation of punishment").
We next consider whether the state court applied the governing
legal rule unreasonably to the facts of Wilson’s case. See Williams,
529 U.S. at 407-08. After thoroughly reviewing the report, we hold
that it did not.
Wilson argues that the report contained details that demonstrated
that Beckman Mental Health Center, Self Memorial Hospital and the
Probate Court communicated inadequately with one another in regard
to Wilson’s care. The report refers to only two instances of miscom-
munication, however, both of which were exceedingly minor. First,
on April 10, 1988, Wilson was admitted to Self Memorial Hospital,
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"at the request of his family and without Beckman Center’s aware-
ness." J.A. 2959. Wilson’s case manager at the Beckman Center dis-
covered that he was being treated at Self Memorial five days later and
visited him shortly thereafter. Id. Second, in May, 1983, the Probate
Court prepared papers for Wilson’s emergency admission to the
South Carolina State Hospital in response to suicidal and homicidal
remarks that Wilson had made; however, Wilson’s "certifying psychi-
atrist" intervened and sent him to Self Memorial, instead, where Wil-
son would have access to private psychiatrists. Id. The report states
that the Beckman Center, where Wilson was not treated until June
1986, was not aware that Wilson had been treated at Self Memorial,
rather than South Carolina State Hospital, until this fact was discov-
ered by the QCRB’s investigation. J.A. 2959.
The state PCR court’s conclusion that these two incidents of mis-
communication failed to constitute mitigating evidence was eminently
reasonable. At worst, these two incidents taken together demonstrate
that the Beckman Center was not able to monitor perfectly, at all
times, actions taken by Wilson and his family with regard to Wilson’s
mental health. Neither incident shows evidence of mistreatment — or
even mismanagement — by the state. And, critically, there is no evi-
dence that either instance of miscommunication deprived Wilson of
care he needed or, for that matter, affected Wilson’s treatment at all.
Thus, it was not unreasonable for the state PCR court to conclude that
such evidence was not potentially mitigating. See Skipper, 476 U.S.
at 4-5.
The QCRB report also included the statement that, "[t]he Board
could find no documentation that any family member ever accompa-
nied [Wilson] to the clinic for counseling, or therapy, or that the Cen-
ter ever attempted to include them in treatment." J.A. 2959. The state
PCR court did not dispute that this statement was mitigating, but,
instead, concluded that Wilson had not been deprived of his right to
present the information to the sentencing court. The state court
explained that "the defense had access to and relied upon" the materi-
als on which the QCRB report’s conclusion was based, apparently
presuming that, because Wilson could have summarized the evidence
in the same fashion that the QCRB report did, the state trial court’s
ruling did not prevent him from presenting any evidence to the sen-
tencer. J.A. 592-93. We hold that this conclusion was, at the very
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least, not "objectively unreasonable." Though it may be argued that
the conclusion of a state-appointed Board would have been given
greater weight by the sentencer than, say, the testimony of an expert
witness for Wilson, see Skipper, 476 U.S. at 8, it was not unreason-
able for the state PCR court to conclude that this would not be so in
this particular case, where the QCRB report’s conclusion concerned
a mere summation of facts, equally available to Wilson and the
QCRB.
We also conclude that, even were the state court’s conclusion
unreasonable in this regard, Wilson’s inability to present this single,
mitigating conclusion from the QCRB report did not have a "substan-
tial and injurious effect" on the court’s ultimate decision to sentence
him to death. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
The available evidence regarding the involvement of Wilson’s family
in the treatment of his mental illnesses was more complicated than the
QCRB report’s bare conclusion indicates. Wilson’s family may not
have been active in Wilson’s treatment at the Beckman Center, but,
as the testimony of Dr. Baber, Wilson’s treating psychiatrist for the
period covered by the report, demonstrates, this lack of enthusiasm
for the Beckman Center did not signify a lack of interest in Wilson’s
well-being generally.5 When such equivocal evidence regarding the
involvement of Wilson’s family in his therapy is weighed against both
5As early as January, 1984, Wilson’s grandmother had been instrumen-
tal in getting Wilson to see Dr. Baber when Wilson began "having what
was considered to be threats of homicide and threats of suicide." J.A.
1207. Wilson’s mother also spoke to Dr. Baber at this time to confirm
with him Wilson’s claims that his father abused him. J.A. 1209. Even
more critically, Wilson’s grandmother and mother were the driving force
behind Wilson’s return to therapy in September 1987, approximately one
year before the shooting. Dr. Baber told the court,
I think his grandmother wanted him to come back into therapy
sessions. He was not particularly motivated towards his therapy
sessions. It was at the insistence of the mother and the grand-
mother that he attended therapy sessions.
J.A. 1211. Moreover, as Wilson’s behavior became more extreme in
1988, both his parents and his grandmother attempted to intervene to
have him admitted again to the state hospital, and, when that failed, to
Self Memorial. J.A. 1212.
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the mitigating evidence of Wilson’s severe mental illness and history
of physical abuse and the aggravating evidence surrounding Wilson’s
murder of two eight-year old girls in an elementary school, see J.A.
1557-58 (listing mitigating and aggravating factors found by the sen-
tencing court); Slip Op. at 18 n.12 (detailing mitigating evidence of
physical and verbal abuse), we believe that it is extremely unlikely
that it would have had any effect, much less a "substantial and injuri-
ous" one, on the court’s eventual decision to sentence Wilson to
death.
Thus, we conclude that the state PCR court’s conclusion was not
"objectively unreasonable" and that the effect of any error was harm-
less under Brecht, 507 U.S. at 637.
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