Refusing to uphold an unconstitutional death sentence, the U.S. Court of Appeals for the Fourth Circuit held on March 22, 2023, that the State’s forfeiture of a procedural defense in a habeas corpus appeal could not be revived after a remand from the Supreme Court. See Stokes v. Stirling, 2023 U.S. App. LEXIS 6881 (Mar. 22, 2023).
Over 20 years ago, Sammie Stokes was convicted of murder and sentenced to death in a South Carolina State court. When all his appeals and state post-conviction challenges were denied, Stokes filed for habeas corpus relief under 28 U.S.C. § 2254 in federal court. He raised, among other claims, that his trial lawyers were constitutionally ineffective for not presenting mitigating evidence of his strained upbringing at sentencing. However, this claim was not exhausted in state court, as required by federal habeas law, so the magistrate judge held an evidentiary hearing to determine whether Stokes’s post-conviction review (PCR) counsel had failed to raise this claim.
The State objected to the federal court holding an evidentiary hearing, arguing that the Antiterrorism and Effective Death Penalty Act (AEDPA) bars the court from considering any evidence that was not part of the existing state-court record at the time of the federal habeas filing. This provision, under § 2254(e)(2), states:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
However, the federal court may hold an evidentiary hearing to determine whether state PCR counsel was ineffective for not raising a “substantial” claim in state court to excuse non-exhaustion of the claim in state court. Martinez v. Ryan, 566 U.S. 1 (2012). The State acknowledged this much but did object to the federal court’s use of any evidence obtained at the evidentiary hearing to reach the merits of Stokes’s claims.
When the magistrate judge submitted her report and recommendation (R&R), the judge found that Stokes’s ineffective assistance of counsel (IAC) claims were without merit. While the judge in fact relied on evidence obtained at the limited evidentiary hearing to reach this conclusion, the State failed to object to the R&R, instead agreeing with the final outcome. The district judge then adopted the R&R and denied Stokes’s habeas petition.
Stokes appealed, and the Fourth Circuit reversed the denial of relief. The Court, relying on the same evidence the magistrate had used, found that Stokes’s trial lawyers were ineffective. The State appealed to the Supreme Court, which then granted certiorari, vacated the Fourth Circuit’s order, and remanded for reconsideration in light of Shinn v. Ramirez, 142 S. Ct. 1718 (2022), where the Supreme Court held that a federal habeas court may not hold an evidentiary hearing unless the restrictive conditions of 28 U.S.C. § 2254(e)(2) are satisfied
On remand, the Fourth Circuit upheld its earlier decision that Stokes’s lawyers were ineffective and vacated his death sentence once again. The Court found that it was not bound by the Shinn ruling because the State had failed to properly raise the issue and therefore forfeited it on appeal. First, the Court concluded that the State not only failed to raise § 2254(e)(2) on appeal, but that it had also not objected to the R&R’s use of evidence that was barred by that provision in finding Stokes’s claims lacked merit. The Court said the State took its win without any questions.
Second, the Court dismissed the State’s argument that § 2254(e)(2) was jurisdictional and so the Court had to raise it sua sponte, or on its own. Pointing to numerous Supreme Court decisions that mandatory language in statutes does not always mean a provision is “jurisdictional,” the Court explained that § 2254(e)(2)’s language was one of those non-jurisdictional provisions. Indeed, the Supreme Court treated § 2254(e)(2) in Shinn as non-jurisdictional.
Third, the Court refused to “exercise its discretion” to excuse the State’s forfeiture of the procedural defense under § 2254(e)(2). While a court may raise a forfeited defense if the “interests of justice” so require, “a court must assure itself that the petitioner is not significantly prejudiced by the delayed focus on the issue and determine whether the interests of justice would be better served by reaching it,” the Court said.
The Fourth Circuit concluded that allowing the State to raise a forfeited argument that § 2254(e)(2) prevented the federal court from finding Stokes’s lawyers were ineffective would unfairly prejudice Stokes in this case:
It is difficult to conceive of a case where a party would be more “significantly prejudiced” by a decision to reach an unpreserved issue. We have already held that Stokes was deprived of his Sixth Amendment right to effective counsel during his capital sentencing. The State now urges us to strike that decision—and rubber-stamp an unconstitutional death sentence—based on an evidentiary limitation the State knew might apply but invited us to ignore on appeal. If excusing the State’s forfeiture in this scenario best served “the interests of justice,” justice would be a hollow word indeed.
The Court also criticized the State for “sandbagging” the court on the § 2254(e)(2) issue, because the State overlooked the Court using the evidence obtained in violation of § 2254(e)(2) to deny Stokes’s claims, but then said it was wrong when the Fourth Circuit overturned that outcome. The Court closed with this statement:
A § 2254 petitioner faces no shortage of procedural obstacles in federal court, most of which are unrelated to the actual merits of his or her constitutional claims. For petitioners like Stokes, who (through no fault of his own) did not exhaust a claim in state PCR proceedings, AEDPA erects a high wall to excusing that procedural default, even as § 2254(b)(3) shields states that fail to timely raise a procedural default defense. And even when new evidence would show cause for excusing a petitioner’s procedural default, that evidence is almost never admissible in federal court.
That the playing field in § 2254 cases tilts heavily in the State’s favor comes as no surprise—AEDPA was enacted to make winning habeas relief more difficult. But here, the State takes a step too far, telling us we must ignore its own flagrant forfeiture so it can enforce a death sentence we have already held was unconstitutional. Nothing in § 2254(e)(2), Shinn, or any other precedent requires us to reach such a perverse result, which would transform a “difficult” task for Stokes into a Sisyphean one.
Accordingly, the Fourth Circuit reinstated its prior decision vacating the denial of Stokes’s habeas petition and remanded for the State to grant Stokes a new sentencing hearing.