Byram v. Ozmint ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JASON SCOTT BYRAM, 
Petitioner-Appellant,
v.
JON E. OZMINT, Director, South
Carolina Department of Corrections;  No. 02-24
HENRY DARGAN MCMASTER,
Attorney General, State of South
Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Margaret B. Seymour, District Judge.
(CA-02-545-6-24AK)
Argued: February 27, 2003
Decided: August 6, 2003
Before WIDENER, WILKINSON, and NIEMEYER,
Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Widener and Judge Niemeyer joined.
COUNSEL
ARGUED: John Dewey Elliott, LAW OFFICE OF JOHN D.
ELLIOTT, Columbia, South Carolina; George Raymond McElveen,
2 BYRAM v. OZMINT
III, MCELVEEN & MCELVEEN, Columbia, South Carolina, for
Appellant. William Edgar Salter, III, Senior Assistant Attorney Gen-
eral, Columbia, South Carolina, for Appellees. ON BRIEF: Henry
Dargan McMaster, Attorney General, John W. McIntosh, Chief Dep-
uty Attorney General, Donald J. Zelenka, Assistant Deputy Attorney
General, Columbia, South Carolina, for Appellees.
OPINION
WILKINSON, Circuit Judge:
Appellant Jason Scott Byram was convicted by a South Carolina
jury of murder, first degree burglary, attempted armed robbery, and
grand larceny of a motor vehicle. He was sentenced to death for the
murder, as well as to life, twenty, and ten year terms of imprisonment
for his other crimes. After exhausting state remedies, Byram peti-
tioned the United States District Court for the District of South Caro-
lina for a writ of habeas corpus under 28 U.S.C. § 2254. The district
court rejected his claims, but issued a certificate of appealability pur-
suant to 28 U.S.C. § 2253(c). Byram now appeals the district court’s
dismissal of his petition. We affirm.
I.
On Sunday, May 23, 1993, at approximately 3:00 a.m., Julie John-
son, a school teacher and mother of three, was robbed and murdered
in her home. The assailant broke into Johnson’s home, stole her hand-
bag and van, and stabbed her to death with her own butcher knife.
Before dying, Mrs. Johnson indicated to her husband and the police
that she was attacked by an individual acting alone.
Police investigating the murder found Jason Scott Byram’s finger-
print at the crime scene and arrested Byram the afternoon of May 23.
After being informed of his rights and signing a written waiver,
Byram gave a statement to the police in which he admitted entering
the victim’s home and stabbing her to keep her quiet. The trial court
held a hearing on the admissibility of Byram’s confession and held
that the statements were freely, knowingly, and voluntarily made.
BYRAM v. OZMINT 3
Byram told the police that he had an accomplice named "Jim" whom
he had met the previous evening outside a bar in the area. The police
investigated this claim but found no evidence that anyone matching
Jim’s description had been in the area that night.
At trial, an individual who rented a room in the same boarding
house as Byram testified that he saw Byram in a white van on May
23. The witness stated that Byram had blood on his shirt and that
when asked about the van, Byram said it belonged to a friend and not
to tell anyone about it. The witness also testified that no one was in
the van with Byram.
Byram was represented at trial by Douglas Strickler as lead counsel
and public defender Lee Coggiola as second counsel. Strickler had
previously tried more than ten non-capital murder cases and partici-
pated in two death penalty cases. He had also represented a death row
petitioner for post-conviction relief (PCR). Coggiola had tried several
major felony cases before being appointed to represent Byram. In
addition, she had work experience at the Death Penalty Resource
Center. Strickler’s time records show that he spent approximately
623.5 hours preparing Byram’s case. Although Coggiola did not doc-
ument the amount of time she devoted to preparation, she testified
that she met with Byram at least thirty times before trial.
On March 7, 1995, Byram was convicted by a jury in Columbia,
South Carolina of murder, first-degree burglary, attempted armed rob-
bery, and grand larceny of a motor vehicle. During the sentencing
phase of the trial, the defense presented mitigating evidence. Trial
counsel retained forensic psychiatrist Dr. Donald Morgan and foren-
sic psychologist Dr. Geoff McKee to evaluate Byram and to deter-
mine if Byram possibly suffered from any brain damage. Evelyn
Califf, a social worker, and investigator Patti Rickborn also assisted
Coggiola in preparing the mitigation evidence. Califf testified that she
met with Byram five times and that she reviewed Byram’s school
records and a summary of his foster care placements. Rickborn con-
tacted several of Byram’s natural and adoptive family members and
helped Strickler obtain records pertaining to Byram’s adoption in Ala-
bama.
The trial court qualified Califf as an expert in the area of adoptions
and learning disabilities. During the sentencing phase of the trial,
4 BYRAM v. OZMINT
Califf testified about Byram’s troubled childhood and adolescence.
She related details of his early family life in an abusive home and the
fact that he was slow to develop as a young child. Califf also reported
that Byram had difficulties in school and that his intelligence was in
the "dull normal" range.
Despite the mitigation evidence presented by defense counsel, the
jury recommended imposition of the death penalty. The trial judge
reviewed this recommendation and determined that the evidence justi-
fied the punishment in this case and that the recommendation was not
the result of prejudice, passion or any other arbitrary factor. The trial
court therefore sentenced Byram to death.
The South Carolina Supreme Court affirmed Byram’s conviction
and sentence on April 28, 1997. State v. Byram, 485 S.E.2d 360 (S.C.
1997), rehearing denied (May 21, 1997). Byram then filed for state
post-conviction relief. After a hearing, the South Carolina Circuit
Court denied Byram’s request for relief. Byram then filed a petition
with the South Carolina Supreme Court, which the court denied on
January 11, 2002. Byram next filed a petition for writ of habeas cor-
pus with the United States District Court for the District of South Car-
olina. Respondents filed a motion for summary judgment on March
22, 2002, and the matter was referred to a United States magistrate
judge. The magistrate judge recommended dismissal. On October 2,
2002, the district court entered an order granting summary judgement
in favor of the State, but the district court issued a certificate of
appealability concerning his claims on January 10, 2003. Byram now
appeals the district court’s decision.
II.
If a state court has already resolved the merits of a claim for post-
conviction relief, a federal court may not grant a writ of habeas cor-
pus unless the state court’s decision was "contrary to, or involved an
unreasonable application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States." 28 U.S.C.
§ 2254(d)(1) (2000). A state court decision is contrary to clearly
established federal law if the state court "applies a rule that contra-
dicts the governing law set forth in [the Supreme Court’s] cases." Wil-
liams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is
BYRAM v. OZMINT 5
contrary to clearly established Supreme Court precedent "if the state
court confronts a set of facts that are materially indistinguishable from
a decision of [the Supreme Court] and nevertheless arrives at a result
different from [that] precedent." Id. at 406. Lastly, a state court deci-
sion involves an unreasonable application of clearly established fed-
eral law if it "correctly identifies the governing legal rule but applies
it unreasonably to the facts of a particular prisoner’s case." Id. at 407-
08.
In this case, Byram argues (1) that he was deprived of effective
assistance of counsel during the jury selection process because his
defense team used peremptory challenges to strike potential jurors for
reasons of race; and (2) that he was deprived of effective assistance
of counsel during the sentencing phase of trial because his lawyers
failed to present a sufficient case in mitigation of his sentence. The
district court found that it was not unreasonable for the state PCR
court to deny these federal claims.
III.
Byram argues that he received ineffective assistance of counsel
because his own defense counsel improperly selected jurors in viola-
tion of the Fourteenth Amendment. At trial, defense counsel exercised
nine out of ten peremptory strikes to exclude white jurors from the
venire and an additional four challenges to remove white jury alter-
nates. Byram contends that these strikes were based on the improper
consideration of race in jury selection.
In Batson v. Kentucky, 476 U.S. 79 (1986), and Georgia v. McCol-
lum, 505 U.S. 42 (1992), the Supreme Court held that it was constitu-
tionally impermissible for either the prosecution or the defense to use
race-based peremptory strikes. The Court set out a three step frame-
work for determining when a Batson violation has occurred. First, the
opponent of the strike must make a prima facie showing that a strike
was exercised on the basis of a juror’s race. Miller-El, 123 S. Ct. at
1040. Once this threshold showing has been made, the burden shifts
to the proponent of the strike to articulate a race-neutral explanation
for removing the juror in question. Id. If such a race-neutral reason
is articulated, the trial court must then determine whether the oppo-
nent of the strike has sufficiently rebutted this explanation and proven
6 BYRAM v. OZMINT
purposeful discrimination on the part of the individual exercising the
peremptory strike. Id.
Trial counsel Strickler testified at the PCR hearing that he was
aware of statistical studies that show African American jurors tend to
vote for the death penalty less often than jurors of other races. When
asked whether he had a personal opinion as to whether African Amer-
ican jurors are actually more lenient than white jurors, Strickler
replied:
I have an opinion based on voir dire examinations in a num-
ber of capital cases which is far and away African American
jurors exclude themselves from even being able to partici-
pate in the process at a far higher rate. In other words, my
opinion is that African American jurors — that those Afri-
can American jurors who have a sincere opposition to capi-
tal punishment will express it and will not participate as
opposed to white jurors who have or any juror actually who
has a sincere belief in the appropriateness of capital punish-
ment in all cases, being unwilling to state that and thereby
disqualify themselves.
Additionally, Byram contends that Strickler’s trial notes specifically
indicate whether certain members of the venire were black or white.
We review this claim on the merits under the deferential AEDPA
standard.
In Batson inquiries, "the decisive question will be whether coun-
sel’s race-neutral explanation for a peremptory challenge should be
believed." Miller-El, 123 S. Ct. at 1041. Because there is rarely any
direct evidence of the attorney’s state of mind when he made the chal-
lenge, "the best evidence often will be the demeanor of the attorney
who exercises the challenge." Id. This type of credibility assessment
lies "peculiarly within a trial judge’s province. Id. (internal citations
omitted).
At Byram’s trial, the State requested a Batson hearing to determine
the reasons for defense counsel’s peremptory challenges of white
jurors. During the hearing, Strickler denied that the challenges were
racially motivated and stated that jury selection was based on defense
BYRAM v. OZMINT 7
counsel’s impressions of the responses given by potential jurors.
Strickler explained that defense counsel used a rating system for each
juror and attempted to seat those jurors who scored higher on the
scale. The Solicitor was dissatisfied with this explanation, and the
trial judge accordingly asked Strickler to give the reason for each
individual strike.
Strickler stated that he struck juror Page because she responded
strongly when the trial court asked about her willingness to impose
the death penalty and because she had children in school where the
victim had been a teacher. Strickler asserted that he struck juror Preg-
nall because he answered the question about his ability to impose the
death penalty quickly but hesitated when responding to the question
of whether he would be able to impose a life sentence. Similarly,
Strickler stated that he struck juror Neely because he did not hesitate
when asked about his willingness to impose a death sentence, but
seemed hesitant to impose a life sentence or to consider mitigating
circumstances. And juror Walker was removed from the pool because
he did not hesitate when asked whether he could impose a death sen-
tence but responded less quickly when asked about his ability to
return a life sentence.
Juror Dansby was struck, according to Strickler, because he had
never before served on a jury, because he lived near the family of the
victim, and because trial counsel perceived him as more likely to vote
for the death penalty. Juror Amidon was struck because he knew the
Solicitor’s father, and juror Head was struck because he worked with
the victim’s husband. Strickler stated that he struck juror Roof
because it appeared that she had trouble understanding the questions
at voir dire and that he struck juror Brown because he was "strong"
on death.
The trial judge ultimately ruled that there was not sufficient indica-
tion of a racial motivation to quash the panel. Based on his first hand
observations of defense counsel, the trial court decided to credit
Strickler’s explanations for the peremptory strikes. A court reviewing
such a decision from a sterile record must give great deference to the
trial court’s determination and may grant habeas relief only if the trial
court’s determination was objectively unreasonable. Miller-El, 123
S. Ct. at 1041.
8 BYRAM v. OZMINT
We find that the state court in this case did not unreasonably apply
Batson to the facts presented. A juror’s inclination to impose the
death penalty is a legitimate consideration in counsel’s exercise of
peremptory challenges. United States v. Barnette, 211 F.3d 803, 811
(4th Cir. 2000). And the trial court’s ruling that this proper consider-
ation was the basis of a strategic decision by defense counsel will not
be disturbed without evidence to the contrary. Accordingly, we affirm
the district court’s determination that Byram was not denied effective
assistance of counsel with respect to this claim. The trial court’s
application of Batson was neither contrary to, nor an unreasonable
application of, clearly established federal law.
IV.
Byram additionally argues that his trial counsel’s performance at
sentencing was ineffective because counsel did not have a coherent
strategy for developing all available mitigation evidence. Byram con-
tends that the absence of a strategy resulted in counsel’s failure to
present factual evidence about his childhood that would have alerted
the jury to the traumatic circumstances of his youth, including evi-
dence that he suffered brain damage as a result of fetal alcohol syn-
drome (FAS) and evidence that he suffered abuse and neglect as a
child. According to Byram, this failure deprived him of his Sixth
Amendment right to effective representation during the penalty phase
of his trial, undermining confidence in the outcome of that phase of
the proceedings.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court set out a two-part test for evaluating ineffective assistance of
counsel claims. First, the defendant "must show that counsel’s perfor-
mance was deficient." Strickland, 466 U.S. at 687. In order to show
this deficiency, the defendant must produce evidence that "counsel’s
representation fell below an objective standard of reasonableness." Id.
at 688. Less than complete investigations may form the basis for stra-
tegic choices, so long as "‘reasonable professional judgments support
the limitations on investigation.’" Wiggins v. Smith, 123 S. Ct. 2527,
2541 (2003)(quoting Strickland, 466 U.S. at 690-91).
Second, the defendant must show that the deficient performance
resulted in actual prejudice to his case. A showing of prejudice
BYRAM v. OZMINT 9
requires the defendant to prove that "counsel’s errors were so serious
as to deprive the defendant of a fair trial." Strickland, 466 U.S. at 687.
In the context of a capital sentencing proceeding, the question is
whether "‘but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’" Wiggins, 123 S. Ct. at 2542(quoting Strickland, 466 U.S. at 694). Assessing prejudice requires
this Court to "reweigh the evidence in aggravation against the totality
of available mitigating evidence." Wiggins, 123 S. Ct. at 2542. In
order to determine whether South Carolina state courts applied federal
law concerning the ineffective performance of counsel in an unrea-
sonable way, we undertake a preliminary consideration of this two
part test. See Miller-El, 123 S. Ct. at 1040.
It is the responsibility of counsel to adequately investigate and
present evidence in mitigation of guilt. Williams v. Taylor, 529 U.S.
at 395. However, counsel is only required to make a reasonable inves-
tigation for possible mitigating evidence. Matthews v. Evatt, 105 F.3d
907, 919 (4th Cir. 1997). Moreover, review of counsel’s strategic
decisions as to which evidence to present at trial is "highly deferen-
tial," and there is a presumption that "counsel’s conduct falls within
the wide range of reasonable professional assistance." Strickland, 466
U.S. at 689.
Byram has not shown that his counsel’s performance fell below an
objective standard of reasonableness. In fact, the record shows that
both Strickler and Coggiola spent a substantial amount of time prepar-
ing Byram’s case. Strickler logged 623.5 hours of pre-trial prepara-
tion and Coggiola testified that she met with Byram at least thirty
times before trial. As part of their pre-trial preparation, they retained
a forensic psychologist and a forensic psychiatrist, Drs. Morgan and
McKee. The experts conducted EEG and MRI tests on Byram to
determine whether he suffered from any organic brain damage. Cog-
giola testified that she carefully reviewed the psychiatric findings
with Strickler, and that the lawyers decided that the suggestions of
antisocial behavior that McKee and Morgan found could have been
harmful to Byram’s defense. Based upon the information and evalua-
tions, counsel decided not to present the experts’ testimony. This stra-
tegic decision not to present psychological evidence was a reasonable
one because such evidence "is a double-edged sword that might as
easily have condemned [defendant] to death as excused his actions."
10 BYRAM v. OZMINT
Truesdale v. Moore, 142 F.3d 749, 755 (4th Cir. 1998). And a failure
to ‘shop around’ for a favorable expert opinion after an evaluation
yields little in mitigating evidence does not constitute ineffective
assistance. Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir. 1992).
Unlike in Wiggins, 123 S. Ct. at 2537, 2538, where counsel fell far
short of "well-defined norms" requiring the discovery of "all reason-
ably available mitigating evidence" and "chose to abandon their
investigation at an unreasonable juncture," counsel here spent consid-
erable time developing a picture of Byram’s life. Trial counsel
retained social worker Evelyn Califf to present a psychosocial assess-
ment of Byram during the sentencing phase of the trial and hired pri-
vate investigator Patti Rickborn to help develop the mitigation case.
Califf testified that she met with Byram five times before trial,
reviewed Byram’s adoption and school records from Alabama, and
interviewed Byram’s adoptive family members. Rickborn contacted
several of Byram’s natural and adoptive family members, including
Byram’s birth mother, Olae Mae Chandler. In order to investigate
Byram’s claim of FAS, Rickborn asked Chandler about possible alco-
hol abuse during her pregnancy, which she denied. The EEG and MRI
tests showed no evidence of FAS, and nothing in the birth mother’s
medical records indicated alcohol consumption during pregnancy.
Based upon Rickborn’s investigation and the absence of any evidence
of organic brain dysfunction, trial counsel concluded that they did not
have a sufficient factual basis to present FAS as evidence in mitiga-
tion.
Despite this thorough investigation, Byram faults trial counsel for
failing to obtain his adoption records, which might have provided
more evidence that he suffered from FAS and more evidence of early
childhood trauma. A failure to obtain available records, however,
does not show that counsel’s investigation was inadequate. Jones v.
Murray, 947 F.2d 1106, 1114 (4th Cir. 1991). Attorneys will not be
found ineffective unless they fail to "make a reasonable investigation
for possible mitigating evidence." Matthews v. Evatt, 105 F.3d at 919(emphasis added). And "the reasonableness of an investigation, or a
decision by counsel that forecloses the need for an investigation, must
be considered in light of the scarcity of counsel’s time and resources
in preparing for a sentencing hearing and the reality that counsel must
BYRAM v. OZMINT 11
concentrate his efforts on the strongest arguments in favor of mitiga-
tion." McWee v. Weldon, 283 F.3d 179, 188 (4th Cir. 2002).
Rickborn did obtain some records concerning Byram’s adoption
and made reasonable efforts to obtain his actual adoption records.
Strickler also attempted to obtain the records. He traveled to Alabama
to try to get social worker files concerning Byram’s early years in fos-
ter care and in adoption, but was unsuccessful. Although PCR counsel
did eventually manage to obtain the records, the PCR hearing had to
be continued several times because PCR counsel could not obtain the
records. The state PCR court found that trial counsel had "devoted
extraordinary time and effort in developing the case in mitigation"
and "articulated credible explanations for their strategic decisions for
developing the mitigation case that they ultimately presented." The
PCR court determined that "counsel’s assistance was reasonable
under prevailing norms of professional conduct" and that the decision
to stop pursuing FAS evidence was a matter of sound trial strategy.
Moreover, even if additional information or records on Byram’s
childhood could have been obtained, this is "not a case where coun-
sel’s failure to thoroughly investigate kept the jury completely in the
dark as to [defendant’s] alleged mental problems." McWee v. Weldon,
283 F.3d at 189. This situation is different from that in Wiggins where
counsel, during the penalty phase of trial, focused on contesting guilt
rather than presenting evidence in mitigation. Wiggins, 123 S. Ct. at
2538. Counsel in Wiggins presented "a halfhearted mitigation case,"
id. at 2538, while in the present case the jury heard extensive testi-
mony and arguments regarding Byram’s troubled childhood and ado-
lescence. Califf testified that Byram weighed only three pounds at
birth and was developmentally delayed as a baby. She presented evi-
dence that Byram’s records reflected at least six changes in custody
before he was adopted at age four, that Byram’s actions suggested
that he was physically abused in his past, and that Byram’s adoptive
parents suffered marital difficulties. She specifically noted that Byram
had emotional difficulties as a young child and that his multiple foster
care placements might have made it difficult for him to form bonds.
Califf further testified that Byram possibly suffered from attention
deficit disorder or hyperactivity as a child, and that Byram tested in
the dull normal range for intelligence.
12 BYRAM v. OZMINT
In light of the wealth of information presented by trial counsel,
additional information about Byram’s childhood would have added
little. There was no "reasonable probability" that the outcome would
have been different had trial counsel conducted an even more exhaus-
tive investigation into Byram’s background. Indeed, the evidence pre-
sented before the PCR court was largely cumulative. And Byram
offers no evidence to support his claim that greater supervision of
Califf or better communication between the members of his defense
team would have produced a different result in his case. Therefore,
Byram has failed to show that the state courts of South Carolina
applied clearly established federal law concerning the ineffective per-
formance of counsel in an unreasonable way.
V.
We therefore affirm the district court’s dismissal of Byram’s peti-
tion.
AFFIRMED.