Argued: October 31, 2018
from the United States District Court for the District of
South Carolina, at Greenville. J. Michelle Childs, District
Jane Brown, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellants.
C. Farber, WINSTON & STRAWN LLP, New York, New York, for
Tsier, WHITE & CASE LLP, New York, New York, for Amicus
Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney
General, Alphonso Simon Jr., Senior Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellants.
William Harry Ehlies, II, Greenville, South Carolina; Teresa
L. Norris, Charleston, South Carolina, for Appellee.
C. Pell, Amity Boye, WHITE & CASE LLP, New York, New
York, for Amicus Curiae.
NIEMEYER, AGEE and DIAZ, Circuit Judges.
shooting and killing his former girlfriend, Charles
Christopher Williams was convicted by a South Carolina jury
of kidnapping, murder, and possession of a firearm during a
violent crime. He was sentenced to death for the murder.
After exhausting state remedies, Williams petitioned the
United States District Court for the District of South
Carolina for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The district court denied or stayed all of
Williams' claims, except Ground Six, which asserted a
claim of ineffective assistance of counsel resulting from
trial counsel's failure to investigate potentially
mitigating evidence of Fetal Alcohol Syndrome
("FAS"). On this ground, the district court granted
Williams' petition and the State now appeals. For the
reasons that follow, we affirm the judgment of the district
morning of September 3, 2003, Williams entered a Greenville,
South Carolina grocery store where his former girlfriend,
Maranda Williams, worked. He confronted her, then forced her
into a store office, where he held her at gunpoint for
approximately 90 minutes. During this period she called 911
and hostage negotiators tried to convince Williams to release
her. She eventually attempted to escape, but Williams pursued
her, shooting her four times and killing her. Upon hearing
the shots, law enforcement officers entered the store and
apprehended Williams. Following his arrest, Williams gave a
statement in which he confessed to the crimes for which he
was later charged. In February 2005, a Greenville County,
South Carolina, jury convicted Williams of kidnapping,
murder, and possession of a firearm during a violent crime.
trial, Williams was represented by attorneys William Nettles
and John Mauldin, both of whom were experienced in capital
cases. Nettles had handled approximately five death penalty
cases through trial and sentencing, as well as a handful of
post-conviction relief cases. Mauldin had overseen
"close to a dozen [capital cases] to verdict" and
worked on nearly three times as many cases after a death
notice had been filed. J.A. 493- 94.
preparation for the penalty phase, Nettles and Mauldin
assembled a defense team that included, among others, social
worker Jan Vogelsang, clinical neuropsychologist Dr. James
Evans, clinical psychiatrist Dr. Robert Richards, neurologist
Dr. David Griesemer, and forensic psychiatrist Dr. Seymour
Halleck. As part of the investigation, Vogelsang gathered
information about Williams' upbringing. She interviewed
Williams' father, who told her that he had observed
Williams' mother, Daisy Huckaby, drinking while pregnant,
though he was unable to provide any additional details.
Vogelsang also interviewed Williams' sister, who recalled
that Huckaby drank while pregnant with Williams, but could
not say how much. (The record indicates that Vogelsang either
failed to ask Huckaby about her drinking or that Huckaby
denied drinking while pregnant.)
defense team experts assessed Williams for neurological and
psychological issues. Following an evaluation, Dr. Evans
concluded that Williams suffered neurological impairments as
the result of frontal lobe damage and, consequently, had
learning difficulties. Dr. Richards examined Williams and
diagnosed him with bipolar and obsessive-compulsive disorder.
Finally, following an MRI and neurological exam the week
prior to the trial, Dr. Griesemer reported that, though there
were some cognitive issues, Williams' MRI showed a normal
the penalty phase,  defense counsel presented mitigating
evidence of Williams' troubled childhood-including his
mother's alcoholism-as well as his mental illness and
difficulties in school. To this end, counsel presented
testimony from Williams' father and sister; Williams'
first grade teacher; a co-worker of Daisy Huckaby; and their
experts, including Dr. Richards, who testified about his
diagnoses, and Dr. Halleck, who opined that Williams suffered
from major depressive disorder and obsessive-compulsive
disorder but was able to, with difficulty, conform his
behavior to the requirements of the law. Moreover, through
his cross-examination of the state psychiatrist, Nettles
elicited additional mitigation testimony, including
information about Williams' trouble with his parents'
divorce, Huckaby's alcoholism, Williams' difficulty
in school, and his untreated attention deficit disorder. In
turn, the State alleged a single aggravating factor:
"Murder was committed while in the commission of
kidnapping." J.A. 809.
second day of penalty phase deliberations, the jury sent a
note to the trial court stating it was deadlocked nine to
three in favor of death. Williams moved for a mistrial but
the trial court denied the motion and instead gave an
Allen charge. The jury resumed its deliberations
and, after three hours and 45 minutes, returned a sentence of
death. The Supreme Court of South Carolina affirmed
Williams' convictions and death sentence, State v.
Williams, 690 S.E.2d 62 (S.C. 2010), and the United
States Supreme Court denied his petition for a writ of
certiorari, Williams v. South Carolina, 562 U.S. 899
November 2010, Williams filed a petition for post-conviction
relief in the Greenville County, South Carolina Circuit Court
("PCR court"), asserting errors that included trial
counsel's failure to investigate signs that Williams
suffered from FAS- namely, evidence of Huckaby's drinking
during her pregnancy and Williams' corresponding brain
damage. In January 2013, the PCR court held an evidentiary
hearing at which three FAS experts testified on Williams'
behalf. Dr. Richard Adler, a forensic psychologist, diagnosed
Williams with Partial Fetal Alcohol Syndrome, a form of FAS.
Neuropsychologist Dr. Paul Connor testified that his
assessment of Williams indicated severe functional
impairments and damage to the corpus callosum, all consistent
with or symptomatic of FAS. Finally, Dr. Natalie Novick
Brown, a forensic psychologist, concluded that Williams'
executive functions-including "self-regulation" and
"behavior control"-were impaired due to FAS,
leading to behavioral difficulties, including impulse control
problems and coping skills equivalent to those of a nine year
old. J.A. 588. All three experts acknowledged that at the
time of the trial in 2005, a widely recognized protocol to
forensically assess FAS in the criminal justice context had
not yet been fully developed, but that individual
practitioners had been addressing FAS and had developed a
framework for diagnosing the condition and treating its
counsel also testified, but neither could recall a mitigation
investigation into FAS, or why such an investigation was not
conducted. Mauldin testified that although FAS awareness had
become much more prevalent in the years since Williams'
trial, the issue "certainly existed well before"
the 2003 American Bar Association Guidelines for the
Appointment and Performance of Defense Counsel in Death
Penalty Cases. J.A. 500. The commentary in these
Guidelines designated FAS as a potentially mitigating factor
to be investigated by counsel in capital cases. He further
acknowledged that, in hindsight, several issues should have
indicated a potential FAS diagnosis for Williams when he was
preparing for trial. First, Mauldin testified that he had
reports in his files that indicated Huckaby drank during her
pregnancy. Mauldin acknowledged that at the time of the
trial, such drinking should have signaled a potential FAS
issue for him. With this information about Huckaby's
drinking, he should have, as a first step, directed a
neurologist to conduct whatever testing would have been
necessary to determine whether Williams was affected by FAS.
Nonetheless, Mauldin testified, "I honestly cannot say
why [Huckaby's drinking] wasn't a red flag for me
eight years ago." J.A. 500. "[A]s extraordinary as
that seems," he continued, "I can't explain why
there was no discussion or follow-up on that." J.A. 512.
Second, Mauldin testified that the developmental delays and
learning problems exhibited by Williams were issues he should
have associated with FAS. Finally, Mauldin also explained
that some of the follow-up information the defense team
experts were seeking was of the type he should have
associated with FAS. Specifically, Mauldin testified that at
the time of the trial he was aware of the correlation between
a significantly smaller head circumference at birth and FAS
and knew that Dr. Richards, as of August 2004, had become
interested in potential brain damage and had requested
records containing the circumference of Williams' head at
birth and recommended an MRI of Williams' brain.
Nonetheless, Mauldin was unable to explain why the records
were not produced to Dr. Richards, or why an MRI was not
conducted until the week prior to the beginning of the trial
in February 2005, rather than in August 2004.
testified that he was aware of the ABA Guidelines mandating
investigation of mitigating evidence, including personal,
family, and medical history, as part of penalty phase
preparations. But he could not remember at what point he
developed an "understanding" of FAS. J.A. 465. He
did recall that the subject of Huckaby's drinking came
up, but testified that he was focused on it as evidence of
Williams' difficult childhood, not of FAS. He also
recalled some evidence of neurological damage. Nonetheless,
he did not recall any discussion about FAS or FAS being
considered as a potentially mitigating factor.
denying Williams' petition, the PCR court concluded:
[T]his Court finds that trial counsel had evidence that
[Williams'] mother drank during pregnancy, and that trial
counsel was aware of the resulting complications, including
brain damage. Trial counsel also had evidence that [Williams]
possibly suffered brain damage, based on Dr. Evans'
reports. Trial counsel presented this information, along with
other mitigation evidence, to the defense experts.
Considering all of the information it had available and in
consultation with its experts, trial counsel developed a
cogent strategy to present mitigation evidence- including
evidence of the mother's alcohol addiction-but also
made a strategic decision not to present to the jury
evidence of brain damage or a diagnosis of Fetal Alcohol
Syndrome (though trial counsel was unable to articulate
the reasons for that strategic decision). Instead, trial
counsel's strategy was to present mitigation evidence
regarding [Williams'] troubled childhood and his [other
disorders], as diagnosed by defense experts.
J.A. 665 (emphases added). Finally, the PCR court also found
that, even if Williams had presented evidence of FAS to the
jury, it was unlikely that the jury would have returned a
different sentence. The PCR court based its conclusion in
part on a survey of eight jury verdicts from other
jurisdictions demonstrating that defendants are sentenced to
death in spite of mitigating evidence of FAS or organic brain
damage. The South Carolina Supreme Court dismissed
Williams' petition for writ of certiorari, Williams
v. South Carolina, No. 2016-MO-012, 2016 WL
1458174 (S.C. Apr. 13, 2016), as did the United States
Supreme Court, Williams v. South Carolina, 137 S.Ct.
initiating habeas proceedings in the district court in
November 2016, Williams filed an amended § 2254 petition
in February 2017, asserting 15 grounds for relief, of which
only the first six are at issue on appeal. Ground One
asserted that the trial court's Allen charge was
improperly coercive. Ground Two asserted that the State
elicited prejudicial testimony from its forensic psychiatrist
by asking her if she became involved only in cases in which
"the death penalty may be considered."
Compare J.A. 23-25, with J.A. 276. Grounds
Three and Four asserted that trial counsel failed to properly
object to a series of allegedly prejudicial comments made
during the State's closing argument. Ground Five asserted
that trial counsel was ineffective for failing to assert
Williams' right to seek assistance from the German
government under the Vienna Convention on Consular Relations
based on his German citizenship. And of particular importance
to this appeal, Ground Six asserted Williams was denied
effective assistance of counsel after trial counsel failed to
investigate evidence of FAS.
case was referred to a magistrate judge, who recommended the
petition be granted as to Ground Six, and that Williams'
death sentence be vacated as a result. The magistrate judge
concluded that the PCR court's finding that trial counsel
"made a strategic decision" was unreasonable given
that this finding was directly contradicted by trial
counsel's PCR testimony. Compare J.A. 885,
with J.A. 665. The magistrate judge also concluded
that Williams established prejudice: because the State put
forward only one aggravating factor and "the jury was
deprived of powerful [mitigating] evidence," a
reasonable probability existed that the jury would have
returned a life sentence had this additional mitigating
evidence been presented and credited by the jury. J.A. 888.
Finally, the ...