Federal Habeas Court Finds Both Trial and Post-Conviction Counsel Ineffective, Vacates Death Sentence

Sammie Stokes confessed to capital murder so his best chance of avoiding the death penalty was a strong presentation of mitigating evidence to sway the jury at sentencing. But Stokes` lawyers failed to pursue any meaningful mitigation, and the U.S. Court of Appeals held on August 19, 2021, that this not only amounted to ineffective assistance of counsel (IAC), but also found that Stokes` state post-conviction lawyers were ineffective to excuse that he procedurally-defaulted this claim, vacating his death sentence.

Stokes had a horrific childhood in rural South Carolina. Without recounting all the disturbing details the court expressed about his upbringing, it`s enough to say that an expert from the Center for Disease Control (CDC) tested Stokes under the well-known “Adverse Childhood Experiences” (ACE) standard and found that he scored a 9 out of possible 10 points. To put this in perspective, the expert noted that only 13 percent of the population have an ACE score of more than 3 points, and less than 1 percent score more than 6. Stokes` score put him in a class nearly by himself: His childhood was worse than 99.9 percent of the population, the expert said.

Despite all of this Stokes` two lawyers, who admittedly had no experience with mitigation defense, decided not to present any of the details of Stokes` childhood to the jury in efforts to avoid the death penalty. Instead, they hired a retired prison warden who said that prison staff could deter Stokes from further crime by using deadly force. “[Prison guards] have the ability … to effect lethal force if that person does not adequately follow certain rules and regulations,” this ex-warden testified before the jury. “I have ordered inmates killed because they did not follow the rules and regulations and that inmate has been killed.”

This was an attempt to convince the jury that life in prison was adequate to deter Stokes from further offenses. In response, the state presented “robust aggravating evidence” of Stokes` crimes to convince the jury to impose the death penalty — and they did so unanimously.

Stokes exhausted his state appeals without success, and then filed an application for post-conviction relief (PCR) in state court, claiming IAC because counsel failed to present any mitigating evidence at sentencing. He was appointed two different lawyers for this round of challenges but they pursued a different route, ignoring the failure-to-mitigate claim. The lower courts denied Stokes` petition and both the South Carolina and U.S. Supreme Courts refused to hear the case.

Federal Habeas Corpus

Stokes then turned to the federal courts and filed a habeas corpus petition in the district court, under 28 U.S.C. sec 2254, again raising the mitigation claim. With counsel present, the court held a limited evidentiary hearing to determine whether procedural-default should be excused based on PCR counsel`s failure to raise the mitigation claim earlier. Typically, a claim raised in a federal habeas petition that wasn`t addressed in the state court is “procedurally-defaulted,” prohibiting the federal court from addressing the claim in the first instance. sec 2254(b). The idea is that the state court must have the first opportunity to fix the error.

But when post-conviction counsel is ineffective for failing to raise the claim in state court, the Supreme Court held in Martinez v. Ryan, 566 U.S. 1 (2012), that the procedurally-defaulted claim may be heard by the federal habeas court if certain criteria are met:

1. The IAC claim regarding trial counsel is “substantial”,
2. Post-conviction counsel was ineffective for not raising the claim,
3. State post-conviction proceedings were the first opportunity to raise an IAC claim, and
4. State law requires IAC to be raised in the post-conviction proceedings, and not on direct appeal.

State Post-Conviction Lawyers Were Ineffective to Excuse Procedural Default

First, the court found Stokes` trial counsel IAC claim was substantial, because it had “some merit,” which is the same standard as the Supreme Court`s ruling for granting a certificate of appealability (COA) in a habeas case.

A petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322 (2003).

Stokes` trial-counsel IAC claim was substantial because, the Court said, “the basis for questioning trial counsel`s effectiveness is plain enough that PCR counsel`s failure to adequately pursue it was objectively unreasonable.”

Second, the Court found that PCR counsel were ineffective for failing to pursue the mitigation claim in state court. Capital defense counsel have the duty to investigate and present substantial mitigating evidence, which includes the obligation to conduct a thorough investigation of the defendant`s background,” the Supreme Court held in Williams v. Taylor, 529 U.S. 362 (2000).

While PCR counsel hired an investigator who uncovered significant mitigating evidence, they failed to hire an expert capable of analyzing those “red flags” showing trial counsel were ineffective, the Court said. “The basis for questioning trial counsel`s effectiveness is plain enough that PCR counsel`s failure to adequately pursue it was objectively unreasonable.”

The Court also clarified that Stokes didn`t have to show “prejudice” in order to establish PCR counsel were ineffective. A typical IAC claim regarding trial counsel requires showing (1) counsel`s performance was deficient, and (2) that absent the errors there`s a “reasonable probability” of a different outcome — or “prejudice.” Strickland v. Washington, 466 U.S. 668 (1984). However, for an IAC claim regarding PCR counsel, the standard is not so strict:

Asking the petitioner to show that PCR counsel`s ineffectiveness prejudiced the state proceedings would effectively require the petitioner to show that the defaulted claim is meritorious.

Note: Not all courts agree on this more lenient IAC standard for Martinez claims. See McKiver v. Sec`y Dept. Corr., 991 F.3d 1357, 1369 (11th Cir. 2021) (“McKiver must prove that his postconviction counsel performed deficiently and that the deficient performance prejudiced his defense.” (citing Strickland)).

Third and Fourth, South Carolina State law says that IAC claims regarding trial counsel must be raised in a post-conviction proceeding. Sigmon v. Stirling, 956 F.3d 183 (4th Cir. 2020). State court rules also require appointment of counsel in post-conviction proceedings when an evidentiary hearing is held, as was the situation in Stokes` PCR case. S.C. Rule Civ. Proc. 71.1(d).

Finding all four of the Martinez criteria met by Stokes, the Court next tackled an obstacle created by the Antiterrorism and Effective Death Penalty Act (AEDPA). Under sec 2254(d), a federal court must “defer” to a state court`s decision and cannot grant habeas relief unless that decision was (1) contrary or an unreasonable application of “clearly established federal law,” or (2) an “unreasonable determination of the facts” presented in state court. But this bar only applies if the state court decided the claim “on the merits.” That didn`t occur here because PCR counsel failed to pursue the mitigation claim, allowing the federal court to review Stokes` claim de novo, or as if the court were deciding his claim in the first instance.

The Ineffectiveness of Trial Counsel

Addressing Stokes` IAC claim regarding trial counsel, the Court applied Strickland`s two-step analysis and found that trial counsel were “constitutionally deficient,” their investigation of mitigation evidence was “inadequate,” and their decision not to present Stokes` tortured childhood to the jury was “unreasonable.”

The Court found no less than five reasons why Stokes` defense lawyers were ineffective: (1) they had no experience with mitigation defense, yet consulted no experiecned attorneys or mitigation experts, (2) their mitigation efforts totaled just 45 hours and didn`t begin until six months into their representation of Stokes, (3) they hired an inexperienced mitigation investigator, (4) they failed to develop any of the investigator`s findings, and (5) they “failed to pursue the indications of extreme childhood trauma, neglect, and abuse.”

The Court reiterated that mitigation has nothing to do with the defendant`s conduct, and everything to do with mitigating a defendant`s “moral culpability.”

Mitigation is not a defense to prosecution. It is not an excuse for the crime. It is not a reason the client should “get away with it.” Instead, mitigation is a means of introducing evidence of a disability or condition which inspires compassion, but which offers neither nor excuse for the capital crime…. It explains the influences that converged in the years, days, hours, minutes, and seconds leading up to the capital crimes, and how information was processed in a damaged brain.

But trial counsel never did this, and the lack of mitigation evidence may have swayed just a single juror, the Court said, enough for a different outcome: “In sum, trial counsel`s unreasonable mitigation efforts prejudiced Stokes. Given Stokes`s immediate confession, his defense turned almost exclusively on mitigation from its very outset. Yet trial counsel spent too little time on their investigation and failed to appreciate their findings,” the Court concluded. “Had the jury heard the unpresented evidence, the probability that at least one juror would have voted against death is great enough to undermine our confidence in the outcome.”

The Court therefore reversed the denial of Stokes` habeas petition and remanded with instructions for the district court to grant relief unless the state resentences Stokes. See: Stokes v. Stirling, 2021 U.S. App. LEXIS 24826 (4th Cir. Aug. 19, 2021).

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