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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Filed: January 8, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-3
(CA-02-2030-0-10BD)
JAMES W. WILSON,
Petitioner - Appellee,
versus
JON E. OZMINT, Director, South Carolina Department of
Corrections; HENRY DARGAN MCMASTER, Attorney General, State
of South Carolina,
Respondents - Appellants.
O R D E R
The court amends its opinion filed December 17, 2003, as
follows:
On page 32, first full paragraph, line 15 -- the word “not”
is inserted after the word “was” and before the word “possible.”
For the Court - By Direction
____________________________
Clerk

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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;
HENRY DARGAN MCMASTER,
Attorney General, State of South
Carolina,
Respondents-Appellants. 
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Matthew J. Perry, Jr., Senior District Judge.
(CA-02-2030-0-10BD)
Argued: September 25, 2003
Decided: December 17, 2003
Before WILKINS, Chief Judge, and WIDENER and
LUTTIG, Circuit Judges.
Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Chief Judge Wilkins and Judge Widener joined.
COUNSEL
ARGUED: Donald John Zelenka, Assistant Deputy Attorney Gen-
eral, Columbia, South Carolina, for Appellants. Sheri Lynn Johnson,

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CORNELL LAW SCHOOL, Ithaca, New York, for Appellee. ON
BRIEF: Henry Dargan McMaster, Attorney General, John W. McIn-
tosh, Chief Deputy Attorney General, Columbia, South Carolina, for
Appellants. John H. Blume, BLUME & WEYBLE, Columbia, South
Carolina, for Appellee.
OPINION
LUTTIG, Circuit Judge:
The State of South Carolina appeals from the district court’s order
granting to capital defendant James W. ("Jamie") Wilson a writ of
habeas corpus under 28 U.S.C. § 2254. Because, as Wilson’s counsel
candidly conceded at argument, the district court did not review the
state court proceedings and judgments under the standards governing
federal habeas review, see 28 U.S.C. § 2254(d); Williams v. Taylor,
529 U.S. 362 (2000); Jarvis v. Bell, 236 F.3d 149 (4th Cir. 2000) (en
banc), and because Wilson is not entitled to relief under the applica-
ble standards governing federal habeas review of state court judg-
ments, we vacate the district court’s grant of the writ and remand with
instructions that Wilson’s habeas corpus petition be dismissed.
I.
The heinous acts which gave rise to Wilson’s incarceration were
described by the South Carolina Supreme Court as follows:
On the morning of September 26, 1988, Jamie Wilson
drove to his maternal grandmother’s house and stole her .22
caliber, nine-shot revolver. Wilson then drove to an Abbe-
ville discount store and purchased some .22 hollow-point
long rifle ammunition. Wilson discarded the bullets already
loaded in the gun, and reloaded the weapon with the more
destructive hollow-point bullets. Wilson next proceeded to
the Oakland Elementary School in Greenwood, where he
parked his 1974 Maverick. He entered the school, finding
his way to the cafeteria, where he stood quietly for a
moment. It was right at lunch time for many of the children.
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Next, Wilson pulled out the pistol and began shooting, pick-
ing his victims, both children and adults, at random. Wit-
nesses observed a look of hatred and rage masking Wilson’s
face.
Wilson fired until his gun was empty. He then went into
a restroom and reloaded the weapon, after which he entered
a classroom and opened fire again. After emptying his gun
a second time, Wilson threw the gun down and stepped out-
side through a window. A teacher spotted him and told him
to remain still with his hands up, which Wilson did. The
police then arrived and took Wilson into custody.
The terror created and damage inflicted by Wilson on
September 26 was considerable, and an entire nation was
shocked, as the unthinkable had occurred. One female first
grade teacher was shot once in the shoulder and once in the
left hand, with the bullet traveling through her hand and into
her throat. A young boy slumped forward onto a cafeteria
table after Wilson aimed his pistol at the boy’s temple and
fired, hitting the boy in the head. Two little girls, both age
eight, were shot dead. Children screamed; children fled;
children hid under their desks; other children were shot.
State v. Wilson, 413 S.E.2d 19, 20-21 (S.C. 1992).
Wilson was indicted on two counts of murder, nine counts of
assault and battery with intent to kill, and one count of illegally carry-
ing a firearm. Id. at 21. Before then-state Circuit Judge James E. Moore,1
Wilson attempted to plead "guilty but mentally ill" (GBMI) to sub-
stantially all the charges brought against him. Id. To enter such a plea,
Wilson was required by statute to show that, "because of mental dis-
ease or defect [he] lacked sufficient capacity to conform his conduct
to the requirements of the law." S.C. Code 17-24-20(A).2 The state
trial court held a three-day hearing, during which it heard twenty-four
1Judge Moore now sits on the South Carolina Supreme Court.
2S.C. Code § 17-24-20(A) provides that,
[a] defendant is guilty but mentally ill if, at the time of the
commission of the act constituting the offense, he had the capac-
ity to distinguish right from wrong or to recognize his act as
being wrong as defined in section 17-24-10(A), but because of
mental disease or defect he lacked sufficient capacity to conform
his conduct to the requirements of the law.
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witnesses, to determine whether Wilson satisfied this standard. J.A.
969-1520. At this hearing and throughout the proceedings before the
state trial court, Wilson was represented by attorneys William Nichol-
son and David Belser. At the hearing’s conclusion, the trial court
held, over the opposition of the state, that Wilson’s mental state at the
time of commission of the crime met the statutory standard for "guilty
but mentally ill" and, accordingly, allowed Wilson to enter his plea.
J.A. 1519.
The trial court thereafter gave Wilson’s counsel the option of tak-
ing a twenty-four hour break, as allowed by statute, before beginning
sentencing proceedings. J.A. 1521-22. After learning that the state did
not intend to present any additional evidence of aggravating circum-
stances, Wilson’s counsel declined to take the full twenty-four hours
and requested that the court proceed with the sentencing proceedings
later that afternoon. J.A. 1523-24. At sentencing, the parties agreed
to incorporate into the record to prove statutory aggravating and miti-
gating factors, "all of the evidence, testimony, that had been presented
in the hearing for the court to determine whether it accept[ed], or
reject[ed], [Wilson’s] plea." J.A. 1525. And, in fact, neither the state
nor the defense presented any additional evidence during sentencing.
J.A. 1527.
On May 9, 1989, based on all the evidence that had been presented
to it, the trial court sentenced Wilson to death. J.A. 1558. Wilson
appealed his sentence to the South Carolina Supreme Court, challeng-
ing both the availability of the death penalty for an individual plead-
ing "guilty but mentally ill" under S.C. Code § 17-24-20(A), and the
constitutionality of the death penalty when applied to such a person.
The court rejected both of Wilson’s challenges. See Wilson, 413
S.E.2d at 22, 27. Wilson next filed an application for post-conviction
relief in South Carolina state court, raising many of the same claims
brought before the district court and at issue in this appeal. The post-
conviction relief ("PCR") court rejected each of Wilson’s claims in a
painstaking eighty-eight page opinion.
On June 13, 2002, having been denied relief by the South Carolina
state courts, Wilson filed a petition for habeas corpus in federal dis-
trict court pursuant to 28 U.S.C. § 2254. The magistrate judge’s report
on Wilson’s petition again rejected all of Wilson’s claims, finding
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that Wilson had failed to make a showing that would satisfy the stan-
dards of review set forth in section 2254(d). Declining to accept this
recommendation, the district court subsequently reversed the findings
of the South Carolina state courts and granted Wilson’s petition for
a writ of habeas corpus on the basis of its finding of eight constitu-
tional errors in Wilson’s guilty plea proceedings and sentencing hear-
ing.
The State of South Carolina now appeals from the district court’s
order granting the writ. Wilson also appeals, claiming that the district
court erred by not granting the writ on the additional ground that the
imposition of the death sentence upon one who is unable to conform
his conduct to the requirements of law, violates the Eighth and Four-
teenth Amendments.
II.
In granting the writ of habeas corpus to Wilson, the district court
did not review, nor even purport to review, the judgments of the
South Carolina state courts under the standards governing federal
court review of state court judgments set forth in 28 U.S.C.
§§ 2254(d) & (e)(1). As even counsel for the petitioner admitted
before this court (though arguing for affirmance on different
grounds), this failure to apply the governing standards constitutes
clear error under the precedent of both the Supreme Court of the
United States and this Circuit. See Williams v. Taylor, 529 U.S. 362
(2000); Jarvis v. Bell, 236 F.3d 149 (4th Cir. 2000) (en banc).
Section 2254(d) provides that, "an application for a writ of habeas
corpus on behalf of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the adjudi-
cation of the claim," in state court satisfies the conditions set forth in
section 2254(d)(1) or (d)(2). 28 U.S.C. § 2254(d) (emphasis added).
Thus, by granting the writ without determining whether the state
court’s adjudication of Wilson’s claim satisfied either sections
2254(d)(1) or (d)(2), the district court failed even to conduct the anal-
ysis that is a precondition to grant of the writ of habeas corpus. For
this reason, the district court’s opinion is of little, if any, relevance to
the proper disposition of Wilson’s petition.
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Before a federal court may grant a writ of habeas corpus to a peti-
tioner in state custody, that court must conclude either that the state
court decision denying his claim was "contrary to, or involved an
unreasonable application of, clearly established federal law," section
2254(d)(1), or that the state court’s decision was "based on an unrea-
sonable determination of the facts in light of the evidence presented"
before the state court, section 2254(d)(2). The state court’s decision
is "contrary to . . . clearly established federal law," under
§ 2254(d)(1), where it "applies a rule that contradicts the governing
law set forth" by the Supreme Court of the United States or "confronts
a set of facts that are materially indistinguishable from a decision of
[the Supreme Court] and nevertheless arrives at a different result."
Williams, 529 U.S. at 406. In contrast, a state court’s decision "in-
volves an unreasonable application of[ ] clearly established federal
law," section 2254(d)(1), "if the state court identifies the correct gov-
erning legal rule from [the Supreme Court’s] cases but unreasonably
applies it to the facts of a particular state prisoner’s case." Id. at 407.
In assessing the reasonableness of the state court’s application of fed-
eral law, the federal courts are to review the result that the state court
reached, not "whether [its decision] [was] well reasoned." See Bell,
236 F.3d at 159; Wright v. Angelone, 151 F.3d 151, 157 (4th Cir.
1998); Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997).
Of course, even if the writ of habeas corpus is authorized under
section 2254(d), a petitioner still must show, in order to be entitled to
relief, that any constitutional errors committed "had substantial and
injurious effect or influence on the verdict" rendered by the jury. See
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Fullwood v. Lee,
290 F.3d 663, 679 (4th Cir. 2002) (applying Brecht after enactment
of AEDPA).
III.
Turning first to the state’s contentions on appeal, the state argues
that the district court erred in finding that Wilson’s guilty plea was
not "knowing, voluntary and intelligent." Because the state court’s
finding that Wilson’s plea was knowing, voluntary and intelligent was
not "objectively unreasonable," Williams, 529 U.S. at 407, we agree
that the district court erred in granting the writ on this ground.
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The Supreme Court has held that "waivers of constitutional rights,"
such as the right to a trial through a guilty plea, "not only must be vol-
untary but must be knowing, intelligent acts done with sufficient
awareness of the relevant circumstances and likely consequences."
Brady v. United States, 397 U.S. 742, 748 (1970). The state PCR
court rejected Wilson’s claim that his guilty plea was not "knowing,
voluntary or intelligent," based on its finding that "the record . . .
reveals that the plea of guilty but mentally ill was entered with an
understanding by [Wilson] and his counsel of the full consequences
that he was facing at the time the plea was entered." J.A. 618.
Not only was this conclusion not "objectively unreasonable," it was
quite obviously correct. The state trial court repeatedly informed Wil-
son of both the procedural and substantive consequences of his guilty
plea. During its colloquy with Wilson, the court informed him that the
death penalty was a possibility no less than five times. Each time,
Wilson answered that he understood.3 The record further discloses
3The following is taken from Wilson’s colloquy with the state trial
court prior to the entry of his plea:
Court: Do you understand that the punishment for one found
guilty or pleading guilty to murder may be either life imprison-
ment or death by electrocution? Do you understand that those are
the two punishments?
Wilson: Yes, sir.
Court: Do you understand what the court means when it says
death by electrocution?
Wilson: Yes, sir.
J.A. 926.
Court: If the court, after that hearing, accepts that plea of guilty
but mentally ill, do you understand, sir, that there would [be] an
additional hearing where this court, again without a jury, would
listen to any evidence that may be presented by either side. The
court would consider that evidence, and this court would decide
what that punishment would be on these indictments, in the case
of murder either life imprisonment, or death by electrocution?
Do you understand that?
Wilson: Yes, sir.
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that Wilson was aware that the state trial court, not a jury, would
make the decision as to whether to sentence Wilson to death, and that
the decision would be made by weighing aggravating and mitigating
evidence presented during the case. See J.A. 936-37.4
Wilson argues that the plea colloquy was nevertheless ineffective
in his case because it was unclear at the time of his plea whether the
death penalty was available for someone who was "guilty but men-
tally ill." The state PCR court was correct to reject this argument.
Both of Wilson’s attorneys testified before the state PCR court that,
in retrospect and at the time of Wilson’s sentencing, they understood
that the state trial court could sentence Wilson to death.5 Nicholson
J.A. 930.
Court: Do you understand, then, that if you plead guilty but
mentally ill and the court accepts that plea that you would give
up, or waive, that right of a jury to make that decision as to
whether you were to receive life imprisonment or death?
Wilson: Yes, sir.
J.A. 936.
Court: I’ve explained to you that the sentence in the case of
murder could be either life imprisonment, or death by electrocu-
tion. Do you understand that?
Wilson: Yes, sir.
J.A. 937.
4Again, the following is taken from Wilson’s plea colloquy with the
state trial court:
Court: Do you understand, too, Mr. Wilson, that if this court,
after this hearing to determine if the court will accept, or reject,
the plea of guilty but mentally ill, do you understand, sir, that if
the court accepts that plea that the section of the code, 17-24-70,
provides that the trial judge would sentence you as provided by
law for a defendant who is found guilty? Do you understand
that?
Wilson: Yes, sir.
J.A. 936-37.
5David Belser, co-counsel for Wilson, testified at the state PCR hear-
ing that he believed that the entry of a "guilty but mentally ill" sentence
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even testified at the state PCR hearing that he personally discussed
with Wilson the fact that, if Wilson were to plead guilty but mentally
ill, the decision of whether to sentence Wilson to life in prison or
death would be made by a judge, not a jury. J.A. 2870. Thus, it is
clear that both Wilson and his counsel were well aware of the possi-
bility that, if his plea of guilty but mentally ill was accepted, Wilson
could be sentenced to death.
We therefore conclude that the state PCR court’s conclusion that
Wilson’s plea of "guilty but mentally ill" was "knowing, voluntary
and intelligent" was not "objectively unreasonable." See Williams,
529 U.S. at 409. Accordingly, the district court also erred in granting
a writ of habeas corpus on this ground.
IV.
The state next challenges the district court’s finding that David
Belser, co-counsel for Wilson, was ineffective for his failure to
inform Wilson, before he entered his guilty plea, that Dr. Donald
Morgan, a psychiatrist who had already testified on Wilson’s behalf
in the guilty plea hearing, had come to believe that Wilson was
legally insane on the date of the shooting. Conducting the review of
the state PCR court decision required under sections 2254(d) and
(e)(1), we agree with the state and hold that neither the state PCR
court’s rejection of this ineffective assistance of counsel claim nor the
factual findings on which that rejection was based were unreasonable.
Dr. Donald Morgan testified for the defense at Wilson’s guilty plea
hearing that, in his opinion, Wilson met the legal standard for being
"guilty but mentally ill," at the time of the shootings, but not the
M’Naghten standard for legal insanity.6 Morgan was the first witness
meant that "Wilson would not get the death penalty or if he did, it would
never be upheld." J.A. 2784 (emphasis added). Similarly, William Nich-
olson, Wilson’s other counsel, testified that a plea of guilty but mentally
ill "would have some power on appeal and if he did receive the death
penalty, we had a belief that he could not receive the death penalty." J.A.
2882 (emphasis added).
6As codified by the state of South Carolina, the M’Naghten standard
asks whether the defendant, "lacked the capacity to distinguish moral or
legal right from moral or legal wrong or to recognize the particular act
charged as morally or legally wrong." S.C. Code § 17-24-10(A).
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to testify at the hearing and remained in the courtroom for the balance
of the testimony. Wilson argued before the state PCR court, and reas-
serts here, that, while listening to the remainder of witness testimony,
Dr. Morgan became convinced that Wilson was not only mentally ill
at the time of the shootings, but actually insane. Wilson further asserts
that, at some time before the conclusion of the guilty plea hearing,
Morgan informed David Belser, Wilson’s counsel, about his change
in opinion but that Belser neither informed Wilson of this fact nor put
Morgan on the stand to testify as to his change in opinion. Belser’s
failure to take either action, Wilson argues, constitutes ineffective
assistance of counsel.
The state PCR court rejected Wilson’s claim, based on a factual
determination that Dr. Morgan did not in fact have a change of opin-
ion during the guilty plea hearing and that, even if he did, he never
informed Belser that he had changed his professional medical opin-
ion. In support of this factual determination, the state PCR court
found there to be no evidence that Morgan informed anyone of any
change in his opinion, either at the time of the guilty plea hearing or
immediately afterwards. It also found that Morgan was unable to offer
a convincing explanation for a sudden change of opinion. Finally, it
found that Morgan’s testimony at the PCR hearing was tainted due to
his personal opposition to Wilson’s sentence of death, animus towards
Dr. Dietz, the state’s expert witness, and subsequent involvement with
Wilson’s defense team during the post-conviction proceedings. The
state PCR court also held that, even if Morgan did inform Belser of
a change in his opinion, Belser’s failure to take action on this infor-
mation was not ineffective assistance of counsel because Wilson
failed in his burden to show that he was prejudiced by any inaction
by Belser.
The heart of Wilson’s claim for habeas relief on this issue is that
the state PCR court’s decision relied upon factual determinations that
were "objectively unreasonable," under section 2254(d)(2), and that
are rebutted by "clear and convincing evidence," under sec-
tion 2254(e)(1).7
7Wilson also contends that the state PCR court’s holding as to Dr.
Morgan was "contrary to" the Supreme Court’s decision in Hill v. Lock-
hart in two respects. Both are meritless.
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Credibility determinations, such as those the state PCR court made
regarding Morgan, are factual determinations. As such, they "are pre-
sumed to be correct absent clear and convincing evidence to the con-
trary, and a decision adjudicated on the merits and based on a factual
determination will not be overturned on factual grounds unless objec-
tively unreasonable in light of the evidence presented in the state
court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)
(internal citations omitted). Applying these standards, we hold that
Wilson has failed in his burden to show, under section 2254(d)(2),
that the state PCR court’s rejection of this ineffective assistance of
counsel claim was based on "objectively unreasonable" factual deter-
minations.
As a preliminary matter, Wilson has failed to rebut by "clear and
convincing evidence" any of the facts relied upon by the state PCR
court in determining that Wilson’s testimony was not credible. See 28
U.S.C. § 2254(e)(1). Wilson argues that the testimony of Belser
First, he argues that the state PCR court erred in its reliance on our
holding in Savino v. Murray, 82 F.3d 593, 599 (4th Cir. 1996), to require
that, in order for Wilson to prevail on this ineffective assistance of coun-
sel claim, there be a reasonable possibility that the insanity defense
would have succeeded at trial. See J.A. 642-43. This was not "contrary
to . . . clearly established Federal law." § 2254(d)(1). Savino accurately
stated the Supreme Court’s holding in Hill, and the state PCR court was
correct to rely on it. See Hill, 474 U.S. 52, 59 (1985) (holding that a peti-
tioner must show prejudice to prevail in an ineffective assistance of
counsel claim and, "the resolution of the ‘prejudice’ inquiry will depend
largely on whether the affirmative defense likely would have succeeded
at trial").
Second, Wilson contends that the state PCR court’s decision was "con-
trary to" Supreme Court precedent because it required that "Jamie him-
self personally testify that had he been informed of the insanity defense,
he would have opted to go to trial rather than plead guilty." A review of
the opinion of the state PCR court opinion reveals, however, that it
required no such thing. Rather, the state PCR court considered the fact
that Wilson did not testify to be one factor, among many, that supported
its conclusion that Wilson failed to show that he would have changed his
plea if informed of Morgan’s changed opinion. J.A. 644.
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"flatly contradicts" the PCR court’s factual finding that Dr. Morgan
did not tell anyone of his change of opinion during the guilty plea
hearing. Petitioner’s Br. at 26. But this is not so. Belser testified only
that he remembered Morgan "wanting to discuss with me further
issues about criminal responsibility," not that Morgan informed him
that he had changed his opinion. J.A. 2722. And as to this, Belser tes-
tified only that "I don’t remember specifically what [Morgan] told
me." J.A. 2722. Belser’s testimony at the state PCR hearing, thus,
does not prove, contrary to Wilson’s contention, that Morgan told
Belser that he had come to believe that Wilson was insane.8
Accepting then the factual findings that the state PCR court relied
upon to support its determination that Morgan’s testimony at the PCR
hearing was not credible, we also find the credibility determination on
which the state PCR court’s decision was based not to be "objectively
unreasonable." At and before the plea hearing, Dr. Morgan — and
every other doctor to offer an opinion on Wilson’s mental state — had
opined that Wilson did not meet the legal standard for insanity. J.A.
637-38. Notwithstanding the significance of his alleged change in
opinion, Morgan never told his fellow witness and colleague at the
William S. Hall Institute, Dr. Geoffrey McKee, that he had changed
his opinion. Even when Morgan discussed the case with McKee in
1990, he did not mention that, despite his testimony at the guilty plea
hearing, he had come to believe that Wilson was legally insane at the
time of the murders. J.A. 641.
8Wilson also claims that the state PCR court erred in its factual finding
that, "at the time the plea was entered, even under Wilson’s current fac-
tual scenario, no one had opined that Wilson lacked the capacity or abil-
ity to differentiate right from wrong at the time of the alleged offense."
See J.A. 645. This finding is, of course, correct technically. Under Wil-
son’s factual scenario, however, Dr. Morgan had informed Belser that he
wished to be put back on the stand, "to tell Judge Moore that he had
changed his mind." J.A. 2304. Still, it is clear that the state PCR court’s
decision was not "based on" any error that inheres in this finding. See
§ 2254(d)(2) (stating that the state court’s decision must be "based on an
unreasonable determination of the facts"). In fact, the state PCR court
acknowledged that Dr. Morgan testified that he informed Belser of his
change of opinion at other points in its opinion. J.A. 639.
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Moreover, Dr. Morgan never offered a satisfactory explanation for
his change of opinion during the guilty plea hearing. Morgan was
fully aware of the content of the eye-witness testimony when he testi-
fied at the guilty plea hearing that, in his opinion, Wilson was not
insane; in fact, Morgan himself "reviewed and considered [the eye-
witnesses’] earlier statements" during his testimony at the guilty plea
hearing. J.A. 640-41. Additionally, to the extent that the witnesses’
testimony on the stand differed from their written testimony, to which
Morgan had access, the state PCR court found that "the witnesses’
testimony clarified their earlier statements" in ways that made it less,
not more, likely that Wilson was insane at the time he acted. J.A. 643
(finding that witnesses’ testimony tended to demonstrate that Wil-
son’s shooting at the school was not random and that Wilson
attempted to blame someone else when first confronted with the mur-
der). In fact, the only unchallenged reason that Morgan offered to the
state PCR court for his change of opinion was that "hearing," as
opposed to reading, the testimony of the live witnesses to Wilson’s
shooting caused him to reassess the significance of certain testimony.
Finally, Dr. Morgan’s sympathies were with Wilson at the state
PCR hearing and these sympathies may have influenced his testimony.9
Morgan continued his involvement with Wilson after the guilty plea
hearing, working to assist his post-conviction defense team. J.A. 640.
And Morgan’s personal opinion at the time of the guilty plea hearing
and at the time of the state PCR court hearing was that Wilson should
not be executed. J.A. 641.
These facts do not compel the credibility determination reached by
the state court, but they certainly provide sufficient basis, for purposes
of section 2254(d)(2), to support such a determination. We find that
the state PCR court’s dismissal of Wilson’s ineffective assistance of
counsel claims relating to Dr. Morgan was not based on factual deter-
minations that were "objectively unreasonable." Therefore, we agree
with the state PCR court’s judgment that Belser was not deficient for
9Wilson vigorously argues that the state PCR court erroneously based
its credibility determination on the fact that Morgan disliked Dr. Dietz,
the state’s psychiatric expert. Because we find the state PCR court’s
credibility determination to be otherwise amply supported, we need not
enter this factual thicket.
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failure to respond to Morgan’s changed opinion, for the simple reason
that Belser was never told that Morgan changed his mind.
V.
The state next argues that the district court erred in its grant of the
writ on Wilson’s claim that he received ineffective assistance due to
his counsel’s failure (1) to develop and present additional mitigating
evidence at sentencing, and (2) to investigate fully Wilson’s back-
ground by hiring a social worker to prepare a family and social his-
tory. The district court found that counsel’s failure to develop such
evidence fell "below the standard of reasonable competence," and
deprived Wilson "of a fair trial." J.A. 537. In reaching this conclusion,
however, the district court again reviewed the decision of the state
PCR court de novo, rather than under the standards set forth in
AEDPA. Applying, as we must, the standards of review required by
AEDPA, we find that the state PCR court’s rejection of Wilson’s inef-
fective assistance of counsel claim was not "objectively unreason-
able" and, therefore, vacate the order of the district court granting the
writ on these grounds.
Because the state PCR court correctly identified the governing
legal standard as that set forth in Strickland v. Washington, 466 U.S.
668 (1984), we limit our review to the question of whether that
court’s application of the Strickland standard was "objectively unrea-
sonable." See Williams, 529 U.S. at 409.
Strickland requires that a petitioner show that his counsel’s perfor-
mance was deficient, and that the deficiency prejudiced his defense,
in order to establish ineffective assistance of counsel. See Strickland,
466 U.S. at 687. The simple standard for assessing counsel’s compe-
tence is whether his "assistance was reasonable considering all the
circumstances." Strickland, 466 U.S. at 688. Due to the high level of
deference accorded to the judgments of counsel when those judg-
ments are based on a "thorough investigation of the law and the
facts," see Strickland, 466 U.S. at 490 (explaining that such judg-
ments are "virtually unchallengeable"), a court conducting the "rea-
sonableness" inquiry under Strickland in the context of a counsel’s
decision not to present mitigating evidence is not concerned so much
with the question of "whether counsel should have presented a mitiga-
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tion case" but, rather, "whether the investigation supporting counsel’s
decision not to introduce mitigating evidence of [the defendant’s]
background was itself reasonable." Wiggins, 123 S. Ct. at 2536
(emphasis in original). The level of deference to be accorded coun-
sel’s judgment in this regard depends on "the adequacy of the investi-
gations supporting those judgments." Wiggins, 123 S. Ct. at 2535. As
the Court in Strickland explained:
Strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchal-
lengeable; and strategic choices made after less than com-
plete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the cir-
cumstances, applying a heavy measure of deference to coun-
sel’s judgments.
Strickland, 466 U.S. at 690-91. This determination of reasonableness
requires a "context-dependent consideration of the challenged conduct
as seen from counsel’s perspective at the time." Id. at 688.
A.
Turning first to Belser and Nicholson’s decisions not to present
mitigation evidence beyond that presented at the guilty plea hearing,
we must decide whether the state PCR court’s conclusion that these
decisions were not "outside the wide range of professionally compe-
tent assistance," Strickland, 466 U.S. at 690, was "objectively unrea-
sonable," see § 2254(d)(1); Williams, 529 U.S. at 409. Based on the
thorough investigation undertaken by Belser and Nicholson and the
large amount of evidence that had already been presented in mitiga-
tion through the guilty plea hearing, we find that it was not.
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i.
We evaluate first the district court’s finding that it was unreason-
able under Strickland for Wilson’s counsel not to present, at sentenc-
ing, the additional testimony of six witnesses regarding his troubled
upbringing and social difficulties.10 As stated above, when conducting
Strickland’s reasonableness inquiry, "our principal concern is . . .
whether the investigation supporting counsel’s decision not to intro-
duce mitigating evidence of [the petitioner’s] background was itself
reasonable." See Wiggins, 123 S. Ct. at 2536 (emphasis in original).
Here, we conclude that counsel conducted an extensive investigation
into both Wilson’s family and social life. We also find that counsel
based their decision not to present additional evidence beyond that
introduced at the guilty plea hearing on the knowledge gained from
this investigation.
In his challenge to the state PCR court’s decisions, Wilson initially
claims that counsel’s decision not to present this additional informa-
tion was the result of mere neglect, rather than a strategic decision
based on the previous investigations of counsel. For this reason, Wil-
son argues, his counsel’s decision not to present evidence is entitled
to no deference under Strickland. The record simply does not support
Wilson in this regard. At the state PCR hearing, Nicholson testified
that the defense team’s decision not to present additional mitigation
10The six witnesses that Wilson claims his counsel should have pre-
sented are his father James T. Wilson, his sister Lynn Littleton, his driv-
ing teacher Emmett Hutto, his reverend James M. Blackwell, and doctors
Charles Baber and Geoffrey McKee. Wilson argues that his father would
have testified that he beat Wilson regularly to discipline him and chased
him around the house with a gun on occasion, testimony that Littleton,
Wilson’s sister, would have corroborated. Littleton would have also testi-
fied that her parents "did not want" Wilson and sent him off to live with
his grandparents, and that her father behaved inappropriately towards she
and her sister. Wilson further contends that Hutto, Wilson’s driving
teacher, and Blackwell, Wilson’s pastor, would have testified that Wilson
stood out as unusual among his peers for his "trance-like" or "zombie-
type" appearance. Finally, Wilson argues that Doctors Baber and McKee,
both of whom testified at Wilson’s guilty plea hearing, would have pre-
sented further mitigating evidence concerning Wilson’s dysfunctional
family life.
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evidence was based on its determination "that the mental illness evi-
dence was our best evidence in mitigation," a determination whose
merit was confirmed by the state trial court’s acceptance of Wilson’s
plea of "guilty but mentally ill." J.A. 2877. He also testified that "the
judge had enough to decide [whether to sentence Wilson to death],
and we felt confident that he would decide that he shouldn’t receive
the death penalty." Id. Nicholson stated further that he did not present
additional evidence of Wilson’s background because he judged it to
be "typical evidence," not likely to influence the trial court’s decision.
Id. From this testimony, it is clear that the defense team’s decision not
to present additional witnesses was strategic, not the product of
neglect. Put simply, Wilson’s counsel believed that their best mitiga-
tion evidence had been presented during the guilty plea hearing, and
that the additional evidence would only have detracted from the
power of the mitigation evidence that they had already presented.11
Turning then to the reasonableness of the investigation supporting
this strategic judgment, we find that Belser and Nicholson conducted
a substantial investigation into Wilson’s life history, and were well
aware of the content of the testimony that would have been presented
through the six witnesses that Wilson contends should have been
offered. In fact, at the time that they made the decision not to present
additional evidence, Belser and Nicholson had interviewed each of
the six witnesses that Wilson now relies upon, both for the purpose
of learning about Wilson’s family and social life and to prepare them
11The state PCR court speculated that Wilson’s counsel could have
decided against calling Wilson’s father and sister in order to avoid the
admission of additional damaging testimony as to "Wilson’s violence
and disrespect toward his parents, grandparents, or other authority fig-
ures," J.A. 612, although this was not the reason given under oath by
counsel for their decision. Even had this been a reason or the sole reason
for counsel’s decision, the decision still would have been reasonable, as
a strategy to avoid, not only repetition, but repetition in greater detail of
testimony as to Wilson’s prior violent acts. We decline to be drawn into
speculation as to whether the reason posited by the state PCR court also
underlay (or underlay alone) counsels’ decision not to call the Wilson
family witnesses. We have no basis upon which to question Nicholson’s
sworn testimony as to the reasons why the defense did not call Wilson’s
father and sister, and the reasonableness of the decision not to elicit their
testimony is amply supported by the reasons given by him under oath.
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for possible testimony. J.A. 2749-50, 2786-87 (Belser); 2850-54
(Nicholson). From these interviews, they were well aware of the kind
of testimony that these six witnesses would have provided. In addi-
tion, Belser and Nicholson had discussed Wilson’s family and social
background in the context of Wilson’s mental health with at least five
different medical experts, see, e.g., J.A. 2872-73, including Dr. Geof-
frey McKee, who had himself interviewed Wilson’s family members,
J.A. 1100. As Strickland makes clear, when counsel makes a strategic
choice after such a "thorough investigation of law and facts relevant
to plausible options," that choice is "virtually unchallengeable." See
Strickland, 466 U.S. at 690.
The reasonableness of the strategic decision made by Wilson’s
counsel is also supported by the fact that a substantial amount of the
evidence that Wilson alleges would have been introduced through the
testimony of additional witnesses had already been introduced
through the testimony of Drs. Morgan, McKee, Baber and Folingstad
during the guilty plea hearing,12 testimony that itself was, at least in
12Dr. Donald Morgan testified that Wilson’s father physically abused
him as a child, often cursing him, throwing things at him and beating him
with a belt. J.A. 1068-69. Morgan further testified that Wilson’s father
threatened him with a gun. J.A. 1069. Dr. Geoffrey McKee reported evi-
dence gained from extensive interviews with Wilson’s mother and grand-
mother that Wilson had shown obsessive compulsive symptoms since he
was 8 or 9. These included washing his hands compulsively, not allow-
ing any of his sisters to touch the refrigerator door, refusing to drink out
of anything but a Dixie cup, and only opening doors with a handkerchief.
J.A. 1128-29. His grandmother, with whom Wilson lived immediately
before his crime, also told Dr. McKee that Wilson had a fascination with
the dark and refused to allow the dining room lights to be turned on or
the drapes opened at any time, id., and that Wilson had suffered the death
of his grandfather and the murder of a neighbor in recent years. J.A.
1131. Dr. Charles Baber similarly testified at the guilty plea hearing that
Wilson came from a history of abuse in the home, that his father had on
occasion threatened to kill him, had hit him in the head with a can, and
that Wilson was singled out and picked on at school. J.A. 1208-10. Dr.
Baber also testified that he believed these pathologies in the home were
the "basic cause" of Wilson’s mental problems as an adolescent.
Additionally, Dr. Diane Folingstad testified that Wilson suffered bor-
derline personality disorder and schizotypal personality disorder. She tes-
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part, the product of interviews conducted with Wilson’s family mem-
bers. Cumulatively, these doctors testified that Wilson’s father had
abused him severely, beating him at various points with a belt, a can,
and a shoe and, on occasion, threatening him with a gun. They also
testified that Wilson’s only social interaction outside his family
involved a homosexual relationship that he had with a 42 year old
man, in which Wilson traded sex for drugs. J.A. 1071. It was reason-
able for Belser and Nicholson to conclude that the additional testi-
mony of Wilson’s father and sister to supplement these reports of
violence and sexual abuse would not have affected the decision of the
sentencing court.
Reviewing the decision that Belser and Nicholson made not to
present additional witnesses, as we must, in light of their substantial
investigation into Wilson’s family and social life and the large
amount of evidence that they had already introduced at the guilty plea
hearing, we conclude that the state PCR court did not unreasonably
conclude that their conduct fell well within the "wide range of profes-
sionally competent assistance," Strickland, 466 U.S. at 690. Thus, to
the extent that the district court’s grant of the writ of habeas corpus
was based on the failure of Wilson’s counsel to present additional
mitigating evidence in the form of these six witnesses, the district
court was in error.
ii.
We turn next to Wilson’s claim that his counsel was constitution-
ally deficient for failing to present mitigation evidence that the medi-
cation that he was taking caused him to have a "stony-faced"
appearance. Wilson asserts that this evidence was critical because it
would have rebutted the impression given by his appearance that he
did not feel remorse for his actions. The state PCR court rejected this
claim, finding that the decision of Wilson’s counsel not to present
additional testimony to explain the effects of Wilson’s medication
tified that Wilson’s grandmother had described Wilson as getting worse
over time, talking to himself and others who were not actually there, and
becoming increasingly paranoid about other people being out to get him.
Folingstad also reported that Wilson made "threats to his parents, [and]
threats to his grandparents." J.A. 1483.
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was not an oversight, but rather a strategic decision, based on the fact
that the defense had already put on evidence that Wilson’s "stony-
faced" appearance was evidence of his mental illness. J.A. 614; see
also J.A. 1487 (testimony of Dr. Diane Folingstad). Again, we agree
with this conclusion. It was entirely reasonable for the state PCR
court to find that Wilson’s counsel was not deficient in deciding to
cast Wilson’s appearance as the product of his mental illness, rather
than his medication. This choice was more consistent with the defense
team’s overall strategy in mitigation, that Wilson should not be exe-
cuted because he was mentally ill.
B.
The district court also held that Wilson received ineffective assis-
tance of counsel because Belser and Nicholson did not hire a social
service worker to conduct an extended family history investigation.
Wilson alleges that the failure of his counsel in this regard "bears a
striking resemblance to Wiggins v. Smith," in which the Supreme
Court recently held that counsel was deficient under Strickland for
failing to hire a social service worker to conduct an investigation into
the petitioner’s background. See generally, Wiggins v. Smith, 123
S. Ct. 2527 (June 26, 2003). Reviewing Wilson’s claim to determine
whether the state PCR court’s application of Strickland was "objec-
tively unreasonable," see Williams, 529 U.S. at 409, we find that the
similarities between this case and Wiggins are more superficial than
real and that the state PCR court’s rejection of Wilson’s ineffective
assistance claim on this ground was not "objectively unreasonable."
In Wiggins, the Supreme Court held that the decision by Wiggins’
counsel not to present mitigation evidence, and to instead "retry the
facts," at the sentencing stage, was a violation of Strickland’s govern-
ing legal principles and that it was "objectively unreasonable" for a
Maryland state court to conclude otherwise. Wiggins, 123 S. Ct. at
2542. Wiggins was clear that the failure of Wiggins’ counsel was not
that they ultimately decided to limit their investigation or that they
decided to focus on Wiggins’ culpability in mitigation, see id., but,
rather, that the "investigation said to support" those decisions was
itself unreasonable. Id. at 2538. Conducting an independent review of
the evidence, the court found that the entire "life history" investiga-
tion of the counsel in Wiggins was limited to reviewing "a one-page
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account of Wiggins’ ‘personal history’" contained in a pre-sentencing
report and to "tracking down" records from the Baltimore City
Department of Social Services, which described Wiggins’ placements
in Maryland’s foster care system. Id. at 2536. The court held that "the
scope of counsel’s investigation into [Wiggins’] background" was
unreasonably narrow in light of prevailing professional standards and
the particular evidence included in the social services report. Id. at
2539.
The decision of Wilson’s counsel not to commission an additional
investigative report stands in stark contrast to the decision made by
Wiggins’ counsel. Unlike in Wiggins, Wilson’s counsel made the
decision not to present additional mitigation evidence after a thorough
investigation into Wilson’s family life and social history. This investi-
gation included interviews with Wilson’s family members, teachers,
and numerous medical specialists, at least one of which had himself
interviewed individuals from Wilson’s family and social background.13
13The full investigation of Wilson’s counsel, Belser and Nicholson,
was substantial. Wilson’s counsel interviewed virtually every family
member in Wilson’s family, including Wilson’s father and his sister, in
order to "find out something about what Jamie was like in the years prior
to the crime." J.A. 2749. Belser explained that his purpose in conducting
these interviews was that he "wanted to have some kind of social history
that [he] could present to the sentencing body." Id. Second, Belser and
Nicholson also testified at the state PCR hearing that they interviewed all
of Wilson’s school teachers that would speak with them, including Wil-
son’s "driver’s ed teacher," Emmett Hutto, about testifying at Wilson’s
hearing or sentencing phase. J.A. 2786-87 (Belser); J.A. 2853-54 (Nich-
olson). As with his interviews with Wilson’s family members, Belser’s
purpose in interviewing Wilson’s teachers was "[t]o describe chronologi-
cally the gradual deterioration in his functioning from his early childhood
through adolescence and the difficulty that he had in school." J.A. 2787.
Nicholson noted that the defense team attempted to interview more of
Wilson’s teachers, but had difficulty because many of the teachers were
unwilling to talk to them. J.A. 2854. Third, Belser and Nicholson hired
or interviewed at least five medical experts, Doctors Donald Morgan,
Geoffrey McKee, Charles Baber, Harold Morgan and Diane Folingstad,
each of whom was familiar with Wilson’s mental condition and his fam-
ily and social history. Dr. McKee even "interviewed Mr. Wilson’s
mother and father and maternal and paternal grandmothers" in the prepa-
ration of his report on Wilson. J.A. 1100.
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J.A. 1100 (testimony of Dr. McKee). This thorough investigation pro-
vided Belser and Nicholson with the knowledge to make a "reason-
able professional judgment" about whether it would be helpful to hire
an additional researcher to look again at Wilson’s immediate and
extended family.14 Indeed, it appears that the Supreme Court reached
the same conclusion in similar circumstances,
[C]ounsel’s decision not to mount an all-out investigation
into petitioner’s background in search of mitigating circum-
stances was supported by reasonable professional judgment.
It appears that he did interview all potential witnesses who
had been called to his attention and that there was a reason-
Additionally, doctors McKee, Folingstad, Baber, and Donald Morgan
each testified on Wilson’s behalf at the guilty plea hearing, both that
Wilson met the legal standard for a plea of "guilty but mentally ill," and
that Wilson had been raised in a chaotic and abusive family environment.
14The wisdom of this strategic judgment was borne out by the results
of Patricia Feigley’s investigation. This investigation, which Wilson’s
post-conviction team did commission, produced little new evidence
related to Wilson’s own life. Consistent with the evidence produced in
the investigations conducted by Wilson’s counsel, this subsequent inves-
tigation found that Wilson’s father abused him, J.A. 2443, that his family
life was chaotic, J.A. 2444-46, that he abused prescription drugs, J.A.
2460-61, and that he showed signs of mental illness and paranoia from
a young age, J.A. 2470-74.
Feigley did discover evidence of substance abuse and mental illness in
Wilson’s extended family, which Belser and Nicholson’s investigation
into Wilson’s life did not uncover. Feigley testified that, in her opinion,
these findings tended to show "a genetic component" of mental illness in
Wilson’s family. J.A. 2462. Here too, however, counsel’s judgment that
they had conducted a sufficiently thorough investigation into Wilson’s
mental illness — and thus that further investigation by a social worker
into the life histories of Wilson’s extended family was unnecessary —
proved to be reasonable. After reviewing the evidence that Wilson’s
counsel did present, the state trial judge agreed with Wilson’s counsel
and found as mitigating factors that, at the time of the murders, Wilson
was "under the influence of mental, or emotional disturbance," and that
he was "unable to conform his conduct to the requirements of the law."
J.A. 1557-58.
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able basis for his strategic decision that an explanation of
petitioner’s history would not have minimized the risk of the
death penalty. Having made this judgment, he reasonably
determined that he need not undertake further investigation
to locate witnesses who would make statements about Ber-
ger’s past.
See Burger v. Kemp, 483 U.S. 776, 795 (1986).
Therefore, it was not "objectively unreasonable" for the state PCR
court to conclude that Belser and Nicholson’s decision not to commis-
sion an additional report regarding Wilson’s background and
extended family was a reasonable limitation on the scope of their
investigation. See Strickland, 466 U.S. at 691.
VI.
The state next contends that the district court erred in granting the
writ of habeas corpus to Wilson based on the state trial court’s order
quashing Wilson’s subpoena of a report prepared by the Quality Care
Review Board (QCRB) of the State Department of Mental Health
(DMH). The state argues that Wilson’s claims related to the QCRB
report are barred by state procedural rules and that the state trial court
was correct not to give Wilson access to the QCRB report.15 Because
we find that Wilson either failed to exhaust or abandoned this claim
in state court, we agree.
The district court granted the writ without addressing the state’s
procedural claims; rather, proceeding directly to the merits, the dis-
trict court found that the state trial judge erred, first, by refusing "to
consider non-statutory mitigating evidence," in violation of Wilson’s
rights under the Eighth Amendment, as set forth in Woodson v. North
Carolina, 428 U.S. 280, 304 (1976), and, second, somewhat ironi-
cally, by considering such evidence in sentencing Wilson to death in
violation of Wilson’s right to due process under Gardner v. Florida,
15Although Wilson claims that the state has abandoned this claim on
appeal, Petitioner’s Br. at 65 n.23, the state clearly asserts in its brief that
Wilson may not, under South Carolina procedural rules, raise this claim
here. Appellant’s Br. at 76.
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430 U.S. 349, 360 (1977). J.A. 543. Again, the district court erred
fundamentally. Not only did it fail to apply the standards of review
set forth in section 2254(d) or, for that matter, review the decision of
the state court at all, it also failed to address the state’s primary con-
tention, that Wilson is barred from raising this claim in his federal
habeas petition because he did not first allow the state courts an
opportunity to review it.
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
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 proposed that the state trial court review the report in camera to
determine the relevancy of the documents. Wilson’s counsel, Belser,
told the court that he had no problems with this procedure. J.A. 585.
After reviewing the report, the state trial court found that it was not
relevant to Wilson’s proceedings and quashed the subpoena.
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 issue in
order to allow counsel to "review the report with experts and to take
additional testimony." J.A. 587. 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. Most importantly for
our purposes, it found 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.
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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.").
Therefore, the state PCR court held that it did not have the jurisdic-
tion to consider the claim. J.A. 586-87. It also suggested to Wilson
that he pursue the claim directly with the South Carolina Supreme
Court, rather than through post-conviction relief proceedings. J.A.
587 ("[T]he deferred action by the Supreme Court merely authorized
that Court, not this court, in an appeal from the state PCR action, if
any, to consider the matter de novo.").
A federal court may not issue a writ of habeas corpus if the pris-
oner in state custody has 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 claim in state court. In light of the state
PCR court’s holding, we conclude that we are barred from reviewing
Wilson’s claim related to the QCRB report because Wilson failed to
exhaust his claim on direct appeal in state court, and may have even
abandoned it. As the state PCR court held, it is clear that Wilson was
barred by the doctrine set forth in Drayton from bringing this claim
in state PCR court because he could have raised it in his direct appeal.
See Drayton v. Evatt, 430 S.E.2d at 519. But this does not necessarily
mean that Wilson is barred from raising it in his federal habeas peti-
tion: if Wilson exhausted his claim in state court on direct appeal,
then the state court would have had an opportunity to address the
claim, regardless of whether he raised it improperly in his state post-
conviction hearing. Thus, absent other procedural hurdles, it would be
ripe for habeas review.
Wilson, however, also failed to give the state courts a chance to
pass on this claim in his direct appeal; first, by failing to object to the
consideration of the QCRB report by the state trial court in camera,
and then, by deferring consideration of his QCRB claim on direct
appeal before the South Carolina Supreme Court and, finally, by fail-
ing to raise it with that court at a later date, Wilson deprived the state
courts of the "opportunity to correct [the] constitutional violation"
that he now alleges in federal court. See Rose v. Lundy, 455 U.S. 509,
518 (1982) (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)). As
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such, he has yet to exhaust his claims in state court and, consequently,
section 2254(b) forbids relief to Wilson on these claims at this juncture.16
VII.
The state’s final contention on appeal is that the district court erred
in granting the writ to Wilson on the ground that he was not compe-
tent at the time that he entered his guilty plea. Again without applying
the deferential standards of review required by section 2254(d), the
district court held that "the petitioner was denied the right to be com-
petent at all stages of the trial and that he was denied the due process
of law." J.A. 552. Because we conclude that the state trial court’s fac-
tual and legal conclusions as to Wilson’s competency to enter a guilty
plea were not "objectively unreasonable," we hold that the district
court erred in granting the writ on this ground as well.
The state PCR court based its denial of Wilson’s claim, in part, on
its finding that Wilson was barred from presenting this claim in post-
conviction relief proceedings because he could have, but did not, raise
the issue on direct appeal. J.A. 626-27 (citing Drayton v. Evatt, 430
S.E.2d 517, 520 (1993)). The state raised the issue of procedural
default before the district court as a defense to Wilson’s habeas cor-
pus petition, see J.A. 152 n.18, but the district court failed to address
it in its order granting relief. This was error. "In all cases in which a
state prisoner has defaulted his federal claims in state court pursuant
to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice." Coleman
v. Thompson, 501 U.S. 722, 750 (1991).
16We note that this does not necessarily mean that Wilson may, at this
time, raise his claims on direct review in South Carolina state court. Sim-
ply because the South Carolina Supreme Court allowed Wilson to
"defer" his claims thirteen years ago does not mean that it must allow
Wilson to raise them now after the passage of more than a decade. This
is a matter of South Carolina’s procedural law, as to which we offer no
opinion.
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Notwithstanding the apparently dispositive effect of Wilson’s pro-
cedural default in state court, the state did not raise this issue before
us. And, because Wilson’s procedural default in state court does not
deprive a federal court of jurisdiction over Wilson’s substantive
claim, we are not required to consider Wilson’s default sua sponte.
See Trest v. Cain, 522 U.S. 87, 89 (1997). Rather, the decision of
whether "to decide a petitioner’s claim on the basis of procedural
default despite the failure of the state to properly preserve the proce-
dural default" rests in our discretion. Yeatts v. Angelone, 166 F.3d
255, 261-62 (4th Cir. 1999).
We decline to exercise that discretion here. Balancing, as we must,
"the interests of comity and judicial efficiency that transcend the par-
ties" against "the petitioner’s substantial interest in justice," id., we
conclude that, in this case, the interest in judicial efficiency, as well
as Wilson’s interest in "be[ing] afforded notice and an opportunity to
[ ] address the issue," Yeatts, 166 F.3d at 262, would be better served
by our consideration of his claim on the merits. Not only is Wilson’s
substantive claim "patently without merit," and therefore easily dis-
posed of, see id. at 261; but, in addition, the parties did not address
the effect of Wilson’s procedural default in their briefs or at oral argu-
ment, compare id. at 262 (deciding to address the petitioner’s proce-
dural default where the issue was "thoroughly briefed and argued")
with Roach v. Angelone, 176 F.3d 210, 215 n.3 (4th Cir. 1999)
(declining to disregard state’s waiver where the petitioner had not
been provided the opportunity to address the issue of his procedural
default), leaving this court either to construct out of whole cloth the
arguments of both the state and the petitioner on the issue or to order
additional briefing to allow the parties the opportunity to argue the
issue themselves. Cf. Trest, 522 U.S. at 91 (observing that, where the
parties have failed to brief the procedural default question, the "some-
what longer (and often fairer) route" is to "ask for further briefing").
We do not believe that either route would be a fruitful use of our time
in this case and, instead, proceed to the merits of Wilson’s claim.
Doing so, we conclude not only that Wilson has failed to show that
the state trial court’s competence determination was "objectively
unreasonable," but, in fact, has failed even to show that it was wrong.
The state trial court took special care to ascertain that Wilson was
competent, and its inquiry into his competence produced no evidence
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that he was mentally unfit to stand trial. These efforts more than satis-
fied the state court’s obligations to determine Wilson’s competence
to enter his guilty plea under clearly established Supreme Court pre-
cedent. See Drope v. Missouri, 420 U.S. 162, 172 (1975).
Although both the prosecution and the defense were willing to stip-
ulate to Wilson’s competence, the state trial court elected to conduct
a competency hearing before beginning the guilty plea hearing. J.A.
916. In the hearing, the state trial court interviewed Dr. McKee and
Wilson to ensure that Wilson was, in fact, of sound mind to proceed,
under the standards set forth in Drope, and interviewed Dr. Donald
Morgan and Lieutenant James L. Fowler to determine whether Wil-
son’s medication affected his capacity to understand the trial or assist
his counsel.
These interviews produced overwhelming evidence that Wilson
was competent to stand trial, that he understood the proceedings
against him and that he could assist his attorneys. See id. at 171. Dr.
McKee informed the court that he had evaluated Wilson on the morn-
ing of his testimony for the express purpose of determining his com-
petence and, as in November 1988 and February 1989, had concluded
that Wilson was "competent to stand trial, that he underst[ood] the
proceedings against him and [was] capable of assisting his attorneys
in his defense." J.A. 920. Next, in a colloquy with the court, Wilson
himself assured the court that this was true.
Thereafter, in response to a question from the court, Wilson stated
that he was taking anti-depressants and a tranquilizer. J.A. 933-34.
The trial court then postponed its determination on competence to
hear additional evidence regarding the effect that the medication had
on Wilson. The next day, Dr. Donald Morgan testified that Wilson’s
medication, "improved [Wilson’s] ability to" "understand the nature
of the proceedings, to answer questions by the court, or other individ-
uals, and to assist his counsel." J.A. 956. Dr. Morgan also told the
court that, on that morning (April 25, 1989), Wilson was "more alert,
more verbal, more cooperative than any of the previous times that I
have examined him." J.A. 956. On this basis, the state trial court
found, "as a fact beyond a reasonable doubt that this defendant is
competent to stand trial, to understand these proceedings, to under-
stand the nature of the charges against him, and the possible punish-
28 WILSON v. OZMINT

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ment, and that the defendant is able to assist his attorneys in these and
other proceedings. The court, therefore, finds that the defendant is
competent." J.A. 962. We believe this finding to be eminently reason-
able, even compelled, in light of the lack of competing evidence
before the state trial court.
Wilson asserts that the state trial court was nevertheless wrong to
rely on this evidence because Wilson’s counsel harbored private con-
cerns that Wilson was "teetering on the brink" of competence, which
they did not present to the trial court during the competency hearing.
Wilson claims that these concerns were brought to the attention of the
state trial court through comments made by counsel David Belser dur-
ing a hearing on February 16, 1989, in which Belser opposed a
motion for continuance on the ground that Wilson may not be compe-
tent at a later date. Wilson also faults Belser for preparing, but not fil-
ing, a motion for a new competency evaluation on the eve of his
guilty plea hearing, and for failing to inform Doctors McKee and
Morgan of certain acts that may have affected their belief that Wilson
was competent.
None of this is evidence that the state trial court erred in finding
Wilson to be competent. The state trial court conducted an indepen-
dent hearing, in which it interviewed two medical experts, McKee and
Morgan, both of whom had conducted evaluations of Wilson on the
day of their testimony. Morgan even testified that Wilson appeared to
be "more alert, more verbal, more cooperative than any of the previ-
ous times that [Morgan] had examined him." J.A. 956. Moreover, the
state trial court addressed Wilson separately to confirm the testimony
of doctors McKee and Morgan. Regardless of any private misgivings
harbored by Wilson’s counsel, we conclude that these evaluations
were sufficient to establish Wilson’s competence on the day of trial
and the state trial court did not err in relying on them.
VIII.
Wilson contends on appeal that the district court erred in denying
him a writ of habeas corpus on his claim that his sentence of death
constituted "cruel and unusual punishment" under the Eighth and
Fourteenth Amendments. In particular, Wilson claims that it violates
the Eighth and Fourteenth Amendments to execute an individual
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judged by a court to have "lack[ed] sufficient capacity to conform his
conduct to the requirements of the law." See S.C. Code § 17-24-
20(A). The South Carolina Supreme Court considered and rejected
this claim in State v. Wilson, 413 S.E.2d 19 (1992).
We may not grant habeas relief to Wilson on this claim unless we
determine that the state court’s decision was "contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28 U.S.C.
§ 2254(d)(1). In this case, "the governing legal principles" that
applied to Wilson’s claim "at the time the state court reached its deci-
sion," were set forth in the Supreme Court’s decision in Penry v.
Lynaugh, 492 U.S. 302, 331 (1989). See Lockyer v. Andrade, 538
U.S. 63, ___, 123 S. Ct. 1166, 1172 (March 5, 2003). Under the prin-
ciples set forth in Penry, a court was required to first determine
whether the punishment was considered "cruel and unusual" at the
time that the Bill of Rights was adopted," and, second, to determine
whether the punishment violated "evolving standards of decency," as
defined by "objective evidence of how our society views a particular
punishment today." Id.
Because these were the principles that the South Carolina Supreme
Court applied in its consideration of Wilson’s claim, we find that its
decision was not "contrary to . . . clearly established Federal law."
Thus, we must decide whether the South Carolina Supreme Court
unreasonably applied the principles set forth in Penry to Wilson, who
lacked the ability to conform his conduct to the requirements of law,
but who could recognize legal right from legal wrong. In conducting
this inquiry, it is not sufficient that we believe the state court applied
the governing federal law incorrectly. Rather, the state court’s appli-
cation must have been "objectively unreasonable." Williams, 529 U.S.
at 409.
Wilson does not contest the state court’s application of the first
prong of the Penry test, in which the state court held that the long-
standing common law prohibition against executing "idiots" applied
only to individuals "who had a total lack of reason or understanding,
or an inability to distinguish between good and evil," Penry, 492 U.S.
at 331-32, not individuals, like Wilson, who acted as a result of an "ir-
resistible impulse." Rather, Wilson disagrees with the South Carolina
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Supreme Court based on its review of the "evolving standards of
decency," as demonstrated by objective factors at the time it adjudi-
cated Wilson’s claim.
The state court’s consideration of these objective factors rested
heavily on the number of states in which it was possible for individu-
als, who were not insane under the M’Naghten standard but who nev-
ertheless committed their crime as a result of an "irresistible impulse,"
to be executed. See Wilson, 413 S.E.2d at 26. This reliance was
clearly appropriate, in light of both Supreme Court precedent, see
Penry, 492 U.S. at 331 ("The clearest and most reliable objective evi-
dence of contemporary values is the legislation enacted by the coun-
try’s legislatures."), and, as discussed below, the limited reliability of
other objective factors. Looking to the states, the state court found
that, although only three states had expressly sanctioned the execution
of these individuals, fourteen more appeared to have no legal mecha-
nism even to identify individuals acting pursuant to an "irresistible
impulse," much less protect them from execution.
The South Carolina Supreme Court did not accept Wilson’s asser-
tion that juries rarely sentenced individuals like him to death, because
that assertion was based only upon a review of individuals sentenced
to death in the three states that expressly allowed for individuals in
Wilson’s position to be sentenced to death, South Carolina, Delaware
and Pennsylvania. The court found that this picture was incomplete
based on its finding, explained above, that the vast majority of states
that allowed individuals like Wilson to be executed did not have legal
procedures to identify someone suffering from an "irresistible
impulse," but not insane under the M’Naghten standard. Thus, based
on the only sound objective evidence before it, the state court con-
cluded that it was "unconvinced that Wilson has proven a national
consensus exists against the imposition of the death penalty" upon
persons like Wilson. Wilson, 413 S.E.2d at 26-27.
Wilson argues in his appeal that a national consensus does exist
against the execution of individuals who lacked the capacity to con-
form their conduct to the law; he bases this assertion on his identifica-
tion of nineteen states in which "the trial court’s fact finding
concerning [Wilson’s] volitional capacity would have shielded" him
from a sentence of death. See Petitioner’s Br. at 106. In seventeen of
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these states, Wilson claims that an individual found to act pursuant to
an "irresistible impulse" would be protected from all criminal respon-
sibility and all punishment.
We do not believe that this evidence establishes that the South Car-
olina Supreme Court’s conclusion was "objectively unreasonable." As
an initial matter, Wilson’s argument is based on evidence of the
states’ contemporaneous policies, not the states’ policies in 1992;
therefore, to the extent that the states’ policies have evolved in the last
decade, Wilson asks that we evaluate the reasonableness of the state
court’s decision based on evidence that was not available to the state
court itself. We need not evaluate the effect of this error on the evi-
dence that Wilson presents, however, because we find that, even
accepting that each of the states that Wilson relies upon had the same
policy in 1992, the fact that nineteen states would not have allowed
Wilson to receive the death penalty does not, standing alone, establish
a national consensus against the execution of individuals like Wilson.
At best, it demonstrates that the number of states where the execution
of such individuals was not possible roughly equaled the number of states
in which the South Carolina Supreme Court found that such individu-
als could have been executed.
"It is the heavy burden of [the defendant] to establish a national
consensus against" the imposition of a penalty that the citizens of a
state have voted to impose. See Stanford v. Kentucky, 492 U.S. 361
(1989). We conclude that it was not "objectively unreasonable" for
the South Carolina Supreme Court to conclude that Wilson failed to
carry this heavy burden. Therefore, the district court’s denial of
habeas relief to Wilson on this ground was proper.
CONCLUSION
For the reasons stated above, the judgment of the district court
granting the writ of habeas corpus is vacated. The case is remanded
with instructions that Wilson’s petition be dismissed.
VACATED AND REMANDED
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