Filed: Dec. 21, 2004
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-12 ELIAS HANNA SYRIANI, Petitioner - Appellant, versus MARVIN POLK, Warden, Central Prison, Raleigh, North Carolina, Respondent - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge. (CA-00-208-3-MU) Argued: September 28, 2004 Decided: December 21, 2004 Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges. Affirmed by unpublis
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-12 ELIAS HANNA SYRIANI, Petitioner - Appellant, versus MARVIN POLK, Warden, Central Prison, Raleigh, North Carolina, Respondent - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge. (CA-00-208-3-MU) Argued: September 28, 2004 Decided: December 21, 2004 Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges. Affirmed by unpublish..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-12
ELIAS HANNA SYRIANI,
Petitioner - Appellant,
versus
MARVIN POLK, Warden, Central Prison, Raleigh,
North Carolina,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CA-00-208-3-MU)
Argued: September 28, 2004 Decided: December 21, 2004
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Traxler wrote the opinion,
in which Judge Niemeyer and Judge Shedd joined.
ARGUED: Henderson Hill, FERGUSON, STEIN, CHAMBERS, ADKINS, GRESHAM
& SUMTER, Charlotte, North Carolina, for Appellant. Edwin William
Welch, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Jacob H. Sussman, FERGUSON,
STEIN, CHAMBERS, ADKINS, GRESHAM & SUMTER, Charlotte, North
Carolina, for Appellant. Roy Cooper, North Carolina Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
TRAXLER, Circuit Judge:
Elias Hanna Syriani was convicted by a North Carolina jury of
the capital murder of his wife and sentenced to death. After
unsuccessfully challenging his convictions in state court on direct
review and in state habeas proceedings, Syriani filed a petition
for writ of habeas corpus in federal district court. See 28
U.S.C.A. § 2254 (West 1994 & Supp. 2004). The district court
denied his application for relief, but granted his certificate of
appealability. For the reasons set forth below, we affirm.
I.
Elias Syriani was convicted of stabbing to death with a
screwdriver his estranged wife, Teresa Yousef Syriani. Shortly
before the attack, Teresa had obtained a protective order from a
North Carolina court requiring Syriani to move out of the marital
home and to stay away from her and their four children. Syriani
moved to a nearby hotel.
The facts underlying Teresa’s death are fully set forth in the
North Carolina Supreme Court’s opinion on Syriani’s direct appeal.
See State v. Syriani, 428 S.E.2d 118 (N.C. 1993). The court
summarized the evidence of the attack as follows:
On 28 July 1990, around 11:20 p.m., defendant
drove to their home, but his wife had not
returned from work. As she drove her
automobile onto a nearby street, defendant
blocked her way with his van. Defendant got
out of his van, gestured, and chased after her
3
car as she put it in reverse. As his wife sat
in her car, defendant began stabbing her with
a screwdriver through the open door or window,
while their ten-year-old son John sat in the
seat beside her. John was unable to stop his
father; he got out of the car and ran home to
get his older sister [Rose].
Id. at 121. John told Rose that Syriani was killing their mother.
He then ran to a friend’s house, and the two boys returned to
Teresa’s car. When they arrived, however, they found Syriani still
there, kneeling at the open door and stabbing Teresa. At some
point, Syriani stopped his attack, walked back to the van, and
yelled in Arabic, “Go home, bastard,” to John. J.A. 367. Rose ran
to her mother, who was still conscious at the time. She arrived in
time to see her father get into the van, look directly at her, and
drive away.
Two neighbors witnessed the attack. Boyd Wilson testified
that the sound of children yelling outside prompted him to look out
the window of his home. He saw a van across the street with the
door open and the interior lights on. He returned to his den and
sat down, but heard more noises and yelling, prompting him to again
look out the window. This time, he saw Syriani walking across the
street towards the van. Syriani got into the van, fumbled with
something, and then walked back across the street to a car parked
in the driveway next to Wilson’s house. Syriani leaned inside the
car and the car began to shake. When Wilson went outside to see
what was wrong, he observed Syriani yelling something at John and
4
his friend. Syriani then got into the van and drove away. Wilson
heard a young woman yelling, “[s]omebody help my mother,” and ran
to the car. J.A. 250. He found Teresa covered in blood.
According to Wilson, Teresa looked “like somebody [who] had been
shot in the face with a load of buckshot.” J.A. 252.
Another neighbor, Thomas O’Connor, testified that he looked
out the window of his home and saw a man stabbing into a car with
what appeared to be a screwdriver. O’Connor ran outside and yelled
at the man. The man turned and made eye contact, but continued to
stab into the car. O’Connor ran inside to call the police, but
arrived back outside in time to see a van pulling away from the
neighborhood. According to O’Connor, the man stopped the van, got
out of the vehicle, and started walking back towards the car. When
he saw O’Connor, however, he returned to the van and drove away.
Immediately after stabbing his wife, Syriani fled to a nearby
fire station and sought medical treatment for scratches on his
face, arms, and chest. He told the firemen that his wife had
assaulted him. He was arrested by the police at the fire station
shortly thereafter and taken, at his request, to the emergency
room. The emergency room physician testified that Syriani had a
bruise on his hand, an abrasion on his lower leg, and minor
scratches on his nose and shoulder. He testified that Syriani told
him that he had been assaulted by his wife. Syriani was charged
with assault with a deadly weapon with intent to kill. Twenty-
5
eight days after the attack, Teresa died as a result of a wound
that penetrated three inches into her brain. Syriani was then
charged with capital murder.
At trial, Syriani and his sister Odeet testified about
Syriani’s cultural and social background and his arranged marriage
to Teresa. Odeet and Syriani were both born in Jerusalem, in
Palestine at the time. Syriani’s family, however, was Catholic, a
minority in the Arab community. They lived in a one-room house in
Jerusalem, and their father was a laborer. His mother did not work
outside the home. According to Syriani, his father developed
cancer when Syriani was twelve years old and could no longer work.
Because he was the oldest boy, Syriani had to quit school (he was
in the sixth grade at the time) and work to help his mother raise
the other five children. He testified that the family, including
his father and mother, all moved to Amman, Jordan, and rented a
home there. He testified that his father lived another three or
four years after he developed cancer, but was never able to return
to work. According to Syriani, he first trained as a machinist
making very low wages. When he was 19 years old, Syriani began
working as a civilian machinist in the Jordanian Army, but
testified his wages were still low. He worked for the Army for
approximately nine years. He testified that his mother went to
work as a housekeeper to help, but that his sisters did not work
because, in his culture, women did not work outside the home. As
6
explained by Syriani, “we don’t have a job for a woman. A woman,
they take care of a family.” J.A. 766. Women “go to school to
finish school, and then they engage and then they get married.”
J.A. 766. However, Syriani testified that his sisters could not
attend school because their family could not afford to buy the
books and other things necessary from them to attend the Jordanian
schools. After Syriani left his job with the Army, he began
working as a machinist for a company in Jordan and, in addition,
began working in a radio station singing Arabic.
Syriani testified that in the mid-1970s, his mother quit
working and he was primarily taking care of the family’s needs. At
this point, Syriani testified that he felt financially able to
marry. He explained the traditions and customs of an Arabic
marriage. According to Syriani, when a man decides to get married,
his family begins to look for a woman within their culture and
religion. When the family finds an appropriate woman, there is an
engagement to allow the couple to get to know each other. “[A]fter
that, if they like each other, they get married. And after they
get married, they have kids. And most of the people, they live
without divorce.” J.A. 771. According to Syriani, there was very
little divorce in Jordan, “maybe five percent, something like
that.” J.A. 771. Most families, he testified, “live forever with
the kids, with the family.” J.A. 771.
7
Syriani and Odeet testified that Syriani met and married
Teresa, who had previously immigrated to the United States and was
living in New Jersey, through George Asmarish, a friend of
Syriani’s who had immigrated to the United States in 1969.
Asmarish wrote to Syriani and told him that he had met a family
with “a nice girl if [Syriani] would like to get married.” J.A.
773. Syriani and Teresa exchanged pictures and wrote to one
another for about three months. Teresa then traveled to Jordan for
the wedding. After two or three weeks, Teresa returned to the
United States. Syriani joined her two months later.1
Syriani testified that after he joined Teresa in the United
States, he stayed in her father’s house for about three days. He
and Teresa then moved to Washington, D.C., where he had friends, to
work. After about three months, the couple moved to the Chicago
area where Syriani could work as a machinist. Although Teresa
worked briefly outside the home during the early months of their
marriage, she quit working after their first child, Rose, was born.
Their children (Rose, Sara, John, and Janet) were all born while
they were living in Chicago. The family spoke primarily Arabic in
the home.
In 1986, Syriani moved his family to Charlotte, North
Carolina, to begin a new job. In Illinois, Teresa had not worked
1
The State called as a witness Teresa’s sister, Alice
Safar. She also testified about the arranged marriage of her
sister to Syriani.
8
outside the home since the birth of their first child and had
dressed according to Arabic tradition, which included wearing no
makeup. After the move, however, Teresa expressed a desire to work
outside the home. When she took a job working evenings at a nearby
gas station, Syriani disapproved. She learned to drive and met new
friends, and she began to wear makeup and dress in a more American
fashion. According to Syriani, they began to argue. “She
change[d] [alot]. After three, four months, my wife [was] someone
else. I try to get better with her, but she -- at that time I
wasn’t happy from her change because she changed fast, very fast.”
J.A. 791. Marital problems escalated, problems that, according to
Syriani, had not existed before the move to Charlotte.
Although Syriani admitted striking his wife three or four
times during the first five years of their marriage, he denied
physically abusing her after that time. According to Syriani, the
reverse was true. He testified that Teresa hit him almost every
day in front of the children and that she called the police several
times even though he was not doing anything to her. According to
Syriani, the “last three months she used to beat [him],” J.A. 835,
but he “didn’t touch her,” J.A. 836. He testified that his
daughters laughed at him when Teresa hit him. He also denied ever
physically abusing the children and testified that he had only
spanked them on rare occasions for their misbehavior.
9
The children offered a much different view of the marriage.
According to them, domestic violence had always been characteristic
of the marriage, although it escalated after the move to Charlotte.
John and Rose testified that their parents argued frequently, and
they described several specific instances of domestic violence
between their parents during these years.2 One such incident,
which occurred in the summer of 1988, culminated in the police
taking Teresa and the children to a battered women’s shelter, which
was followed by a short stay with Teresa’s sister in New Jersey.
John and Rose testified that in 1990, their parents began to argue
more and more. Syriani did not like Teresa’s departure from the
traditional Arabic customs and beliefs; he wanted her to quit
working outside the home and stay at home with the children and be
a housewife again.
In June 1990, Teresa told Syriani that she intended to divorce
him. Syriani, in accordance with Arabic traditions, wrote to
2
For example, John testified that his parents argued
several times a week. He saw his father slap his mother and
backhand her across the ear on one occasion, and overheard his
father call his mother a whore when they argued. Rose testified
that her parents fought constantly. Moreover, her father had
threatened them with a bat, chased her mother with the bat,
screamed and cursed at them, and called her and her mother whores.
She testified that her mother would try to defend herself, but when
she thought Syriani would hit her, she would run upstairs and join
the children. Rose testified that her father frequently became
angry and would break furniture to scare them. She also testified
that her father beat her and, on one occasion, grabbed her around
her throat with his hand and told her he was going to kill her. On
another occasion, he grabbed her by the hair and kicked her
repeatedly for scratching his van.
10
Teresa’s brothers in Jerusalem and Minnesota for help, but to no
avail. There was evidence that Syriani threatened to kill Teresa
if she ever left him. Nevertheless, Teresa took the children and
temporarily moved into a motel. She then obtained a court order
requiring Syriani to leave the marital home and to stay away from
her and the children. According to Syriani, Teresa appeared at
their home with two policemen and the order and told him that he
had to relinquish his house keys and leave. Syriani testified that
he took his clothes and began living in motels. Teresa rebuffed
Syriani’s attempts at reconciliation and rejected his request that
they seek marital counseling.
According to Syriani, in the late evening hours of July 28,
1990, he was watching the road that Teresa and John would travel
home from her job at the gas station, and he became worried because
Teresa’s car had not yet passed. Thinking that he had missed her,
he drove to the neighborhood, but he did not see her car. As he
was driving out, he saw Teresa’s car pull into the neighborhood.
He testified that he stopped his van to talk to her, but he denied
blocking her path of travel. According to Syriani, Teresa stopped
her car as well and he approached the driver’s side window, which
was down. Syriani testified that he was worried and hurt. He
testified that he asked Teresa, “With whom did you leave my kids,
by themselves?” J.A. 815. According to Syriani, Teresa did not
like what he said and scratched his face. He pushed her away from
11
his face, but Teresa opened the car door and hit him with enough
force to cause an injury to his leg. According to Syriani, he
grabbed the door, but by that time she had put the car in reverse.
He testified that he had a “screwdriver in [his] pocket, and [he]
hit her from the window.” J.A. 817. Syriani testified that he was
moving with the door, with the car moving in reverse. He testified
that he did not intend to hurt her or kill her, and only remembers
hitting her three or four times.
In addition to presenting the testimony of Syriani regarding
the events of that night, Syriani’s counsel called a number of
neighbors and co-workers who testified that Syriani was a gentle,
hard-working man, with a good nature and character, and that the
Syriani household was a loving and happy one.
In closing argument, trial counsel urged the jury to find that
Syriani and Teresa, embroiled in an emotional divorce situation,
had become engaged in an argument, and that Syriani had responded
reasonably and in self-defense to his being scratched, hit by the
door, and carried backwards down the street by the moving car. He
argued that there was no evidence of premeditation and deliberation
on Syriani’s part, which was necessary to convict Syriani of first
degree murder, and that there was also no malice, which was
necessary to convict Syriani of second degree murder. At most,
counsel argued, the jury should consider Syriani’s actions as
voluntary manslaughter because he had responded to Teresa’s attack
12
and inflicted the fatal wound, without malice, but in the heat of
passion. The jury found Syriani guilty of first-degree murder on
the basis of premeditation and deliberation.
During the penalty phase of the trial, counsel again presented
Syriani as a hardworking immigrant who lost control of his emotions
on the night that he stabbed his wife. Counsel primarily relied
upon the testimony of the neighbors and acquaintances who had
testified during the guilt phase as to Syriani’s good character and
work ethic. Counsel also presented evidence that Syriani, while
released on bond, did not attempt to flee the country and, instead,
took steps to ensure that his children were cared for and given a
home with his mother and sister Odeet, who had by that time also
immigrated to the United States and settled in the Chicago area.
Counsel also presented the testimony of a Mecklenburg County jailor
that Syriani had adjusted well to incarceration and had been a
model prisoner. Syriani testified during the penalty phase as
well. He testified that he loved his wife and that, at the time of
the assault, he was very emotional and upset; he felt as if he were
losing his wife and children and had lost control of his family.
He testified that he was deeply sorry for what he had done.
In rebuttal, the State presented the testimony of Sara
Syriani, the couple’s middle daughter. Sara testified that she
witnessed her father chase her mother with a pair of scissors
during one argument, backhand her mother in the ear while they were
13
riding in the car on another occasion, and pull her mother down the
stairs by her hair and rip her shirt on yet another occasion. She
also testified that Syriani had pushed her down and kicked her
while she was looking for a shoe that she had lost.
At the conclusion of the penalty phase, the jury found as an
aggravating factor that the murder of Teresa was especially
heinous, atrocious, or cruel. The jury also found eight mitigating
circumstances, but unanimously decided that the aggravating
circumstance outweighed these mitigating circumstances and
recommended that Syriani be sentenced to death. On direct appeal,
the North Carolina Supreme Court affirmed Syriani’s conviction and
death sentence, see Syriani, 428 S.E.2d at 121, and the United
States Supreme Court denied Syriani’s petition for writ of
certiorari, see Syriani v. North Carolina, 510 U.S. 948 (1993).
After his conviction, new counsel was appointed to represent
Syriani in his efforts to obtain post-conviction relief. Syriani
filed his motion for appropriate relief (“MAR”) in the North
Carolina Superior Court alleging, inter alia, that his trial
counsel had provided constitutionally deficient legal assistance
during the penalty phase of his trial by failing to investigate and
present mitigating evidence of Syriani’s cultural and social
background in Palestine and Jordan and by failing to investigate
and present mitigating evidence of mental illness. The state court
granted Syriani’s request for funds to hire an investigator and a
14
translator and granted Syriani’s request for an independent
psychological and psychiatric examination.
At the conclusion of an evidentiary hearing, the state MAR
court ruled that Syriani failed to prove that his counsel’s
representation during the penalty phase was deficient and, in any
event, that Syriani had received “a fair trial that produced
reliable results.” J.A. 2425. Consequently, the state court
denied Syriani relief, and the North Carolina Supreme Court denied
review. See State v. Syriani, 536 S.E.2d 319 (N.C. 1999).
Syriani then filed a petition for a writ of habeas corpus in
the district court pursuant to 28 U.S.C.A. § 2254, again alleging
ineffective assistance of counsel. The district court denied the
petition, but granted Syriani’s application for a certificate of
appealability, see 28 U.S.C.A. § 2253 (West Supp. 2004), as to
Syriani’s claim that he received ineffective assistance of counsel
during the penalty phase of the trial. This appeal followed.3
II.
The Sixth Amendment requires that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence,” U.S. Const. amend. VI, and
that such assistance be effective, see Strickland v. Washington,
3
We subsequently denied Syriani’s motion to expand the
certificate of appealability to include a claim that the state MAR
proceedings deprived Syriani of a full and fair opportunity to
develop his ineffective assistance of counsel claim.
15
466 U.S. 668, 686 (1984). In order to establish an ineffective
assistance of counsel claim, Syriani was required to establish (1)
that his “counsel’s representation fell below an objective standard
of reasonableness,” measured by the “prevailing professional
norms,” id. at 688, and (2) “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different,” id. at 694. “Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.” Id. at 687.
Because Syriani’s Sixth Amendment claim was adjudicated on the
merits by the North Carolina state court, Syriani’s claims are
subject to the deferential standards set forth in the amendments to
28 U.S.C.A. § 2254(d), enacted as part of the Antiterrorism and
Effective Death Penalty Act of 1996. A federal habeas court is
precluded from granting habeas relief unless it concludes that the
state court’s adjudication of a claim “resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States” or “resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.A. § 2254(d);
see also Williams v. Taylor, 529 U.S. 362, 412 (2000).
16
However, Syriani argues that the state MAR court, when
evaluating the second prong of Strickland’s test, i.e., the
“prejudice” prong, misread the Supreme Court’s decision in Lockhart
v. Fretwell, 506 U.S. 364 (1993), as requiring a determination that
there is a reasonable probability that, absent counsel’s errors,
the result of the proceeding would have been different and, if so,
that the defendant did not receive “a fair trial that produced
reliable results.” J.A. 2425. We agree.
The Supreme Court has “dismissed the idea that we must
separately inquire into fundamental fairness even if a petitioner
is able to show that his lawyer was ineffective and that the
ineffectiveness probably affected the outcome of the proceeding.”
Tucker v. Catoe, 221 F.3d 600, 608 (4th Cir. 2000) (citing
Williams, 529 U.S. at 391-93). Because the North Carolina court
interjected an additional “fundamental fairness” inquiry into the
prejudice prong of Strickland, its determination that any deficient
performance on the part of Syriani’s counsel was not prejudicial
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.A. § 2254(d). Accordingly, we
review the state court’s adjudication of the deficient performance
test to determine whether it is an unreasonable application of the
principles set forth by the Supreme Court, but we review the state
court’s application of the prejudice prong to Syriani’s
17
ineffectiveness claim de novo, unconstrained by the deference
mandated by the AEDPA.
III.
Syriani claims that trial counsel unreasonably failed to
present mitigating evidence related to his cultural background and
mental health and that, had Syriani’s jury been provided with this
additional evidence, “there is a reasonable probability that at
least one juror would have struck a different balance.” See
Wiggins v. Smith, 539 U.S. 510, 537 (2003). For the reasons that
follow, we disagree.
A.
We begin with Syriani’s claim that trial counsel unreasonably
failed to investigate and present mitigating evidence of his
cultural background and social history. Syriani asserts that, had
counsel conducted a thorough investigation into the first thirty-
seven years of his life in Palestine and Jordan, they would have
uncovered a number of family members, friends, and co-workers in
Jordan who were willing to testify about his difficult life before
he immigrated to the United States.
Syriani did not testify at the state MAR hearing about his
background. Rather, through summaries of interviews conducted by
others of these family members and acquaintances, and through
interviews that Syriani had with the “cultural expert” retained on
his behalf for the MAR proceeding, Syriani presented a number of
18
additional facts about his life in Palestine and Jordan. According
to this additional evidence, Syriani’s home in Palestine was
annexed to the Israeli state when Syriani was twelve years old.
Although Syriani did not directly live in a war zone, the Israelis
rounded up all the men in his village, including his father, and
took them to concentration camps. A year or two later, his father
was released to return home and the family moved to Jordan where
one of his sisters already lived. Syriani claims that his father
was unable to work and that his father was laughed at by others in
the community. No one respected his father in Jordan, not even his
mother, who was cruel and indifferent to him. According to
Syriani, “She used to hit him with her shoe just like my wife
[Teresa] used to raise her hand against me in the last year of our
marriage.” J.A. 2300. The family was socially isolated as a
result. Syriani also suspected that his mother had extramarital
affairs during these years, which “shamed him deeply.” J.A. 2301.
Syriani and his family lived in extreme poverty and his mother
abused him physically and emotionally. According to Syriani, he
wet the bed until he was fifteen years old, and his mother
humiliated him for this problem.
In addition to the claim that counsel was ineffective for
failing to uncover and present this additional personal history,
Syriani asserts that trial counsel was ineffective for failing to
retain a “cultural expert” to provide the jury with testimony about
19
the fundamental differences between Arabic and Western culture,
Syriani’s difficulties with his cultural assimilation into this
country, and how this difficulty affected his behavior on the night
of the attack. As a result of these failures, Syriani asserts that
the jury was “unable to understand the influence of culture on
[his] ideas, thinking process, ideals and methods of
communication.” J.A. 1161. An expert in Arabic culture and
history, Syriani claims, would have been able to explain and place
in context this clash of American and Arab culture.
Post-conviction counsel took this step, retaining Dr. Akram
Khater, Ph.D., a history professor from North Carolina State
University who specializes in Arabic history and culture, to
evaluate Syriani. Dr. Akram conducted interviews with Syriani and
developed a social and family history, and presented this evidence
to the state MAR court by affidavit. In particular, Dr. Akram
provided more detailed information about the norms and traditions
in the Arab culture and, in particular, the expectations and
accepted behaviors of men and women in a traditional Arabic
marriage, which Syriani strove to maintain with Teresa.
In death penalty cases, defense attorneys are required to
undertake a reasonable investigation into possible mitigating
evidence that can be presented during the penalty phase. See
Wiggins, 539 U.S. at 521-23. “[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision that
20
makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must
be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.”
Strickland, 466 U.S. at 691. “[T]here is a presumption that
‘counsel’s conduct falls within the wide range of reasonable
professional assistance.’” Byram v. Ozmint, 339 F.3d 203, 209 (4th
Cir. 2003) (quoting Strickland, 466 U.S. at 689).
“[I]n deciding whether [counsel] exercised reasonable
professional judgment,” we “focus on whether the investigation
supporting counsel’s decision not to introduce mitigating evidence
of [defendant’s] background was itself reasonable.” Wiggins, 539
U.S. at 522-23 (internal alteration and quotation marks omitted).
“Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the
effort would be to assist the defendant at sentencing. Nor does
Strickland require defense counsel to present mitigating evidence
at sentencing in every case.” Wiggins, 539 U.S. at 533. Also,
[t]he reasonableness of counsel’s actions may
be determined or substantially influenced by
the defendant’s own statements or actions.
Counsel’s actions are usually based, quite
properly, on informed strategic choices made
by the defendant and on information supplied
by the defendant. In particular, what
investigation decisions are reasonable depends
critically on such information.
Strickland, 466 U.S. at 691.
21
We do not view counsel’s investigation of Syriani’s background
and social history as constitutionally deficient.
First, trial counsel’s investigation into Syriani’s background
was not rendered unreasonable because they failed to locate and
interview witnesses in the country of Jordan. Syriani was
represented at trial by Mr. John Plumides, who acted as lead
counsel, and Mr. Andrew Trakas, who was second chair counsel. Both
were experienced trial counsel, particularly Mr. Plumides who had
tried capital cases before. At the time of the murder, Syriani was
not a recent immigrant to the United States. He and Teresa married
in 1974, and he immigrated to this country within several weeks of
the marriage. He learned to speak English, and had been living,
working, and raising children in the United States for fifteen
years when he attacked his wife. Thus, there was no reason for
counsel to believe that he would be unable to present a competent
mitigation case without traveling to Palestine and Jordan, or
sending an investigator there, to interview family members,
friends, and co-workers who had known Syriani more than a decade
earlier.
Second, Syriani’s counsel undertook reasonable efforts to
investigate Syriani’s cultural background. Mr. Trakas testified
that he met with Syriani on a regular basis prior to trial, at
least once or twice a week, to discuss various aspects of his case,
including an explanation of the two-tier approach to a capital
22
trial. Mr. Plumides also visited Syriani on a less frequent basis.
Counsel testified that they had a good rapport with Syriani and no
difficulty communicating with him. Counsel also obtained and
presented information from Syriani’s sister Odeet, and interviewed
Syriani’s brother when he visited from Jordan.
Finally, it is clear that Syriani’s counsel understood and
adequately presented the cultural aspects of the case, and
successfully highlighted their mitigating value. In particular,
Mr. Plumides demonstrated that he fully understood Syriani’s
marriage arrangement and the cultural differences between his life
in Jordan and his life in the United States.4 Counsel presented
information about Syriani’s unique cultural background to the jury,
through the testimony of Syriani and Odeet. And, counsel referred
to the differences between Arabic and American culture during his
closing argument to the jury, including reminding the jury of
Syriani’s unique difficulty in coping with his wife’s adoption of
more American behaviors, such as driving, working outside the home,
and wearing makeup and a more americanized wardrobe.5
4
Indeed, Mr. Plumides had a unique understanding of them.
Mr. Plumides’s parents had immigrated to the United States and were
the product of an arranged marriage.
5
For example, counsel pointed out that Syriani had “lived
as a very poor man and worked his way up to his own home,” that
“[h]e lived in one room in Jerusalem with all his family, all his
brothers and sister[s], and his ill father and mother,” that “he
went to work when he was 12 years old,” and that he supported his
family and “created a very distinctive sense of pride in his life
style.” J.A. 895. He highlighted the fact that the changes in
23
In sum, we cannot say that trial counsel’s failure to travel
to Jordan to interview family members and friends of Syriani from
years before, or failure to retain a “cultural expert” to testify
as to the effect his Arabic heritage might have had upon his
actions during the marriage and on the night he inflicted the fatal
wounds upon his wife, constituted ineffective assistance of
counsel. Counsel interviewed Syriani and his sister living in the
United States, as well as a sibling who visited from Jordan, and
presented a great deal of evidence of Syriani’s background to the
jury. The information presented did not include the details
contained in Dr. Khater’s affidavit. However, there is no claim
that Syriani, Odeet, or the visiting brother conveyed this
background information to counsel when they were interviewed. And,
it appears that the vast majority of this “undiscovered” evidence
came from Syriani himself when he was interviewed by Dr. Akram in
preparation for the MAR. In this regard, we note that, while
Syriani did not testify at the MAR hearing, he presented no such
history in his testimony during the guilt phase or penalty phase.
Indeed, in at least one very important respect, Syriani’s testimony
Teresa prompted Syriani’s actions that night, that “[s]he became
[a]mericanized” and “started wearing lipstick.” J.A. 905. He
reminded the jury that, “in their land and their customs, a woman’s
place was in the home,” that “divorce in [Syriani’s country] was
five percent,” “[t]hat the home was secure,” and that “[t]hey
didn’t have divorce.” J.A. 905. And, he highlighted the fact that
Syriani “couldn’t understand why his wife was leaving him, of all
things.” J.A. 906.
24
at trial conflicts with the background offered through the
summaries of other witnesses at the MAR hearing.6
However, even if we were to conclude that counsel should have
done more in their investigation of this aspect of the case, we
would affirm the denial of habeas relief because Syriani failed to
demonstrate that there is a reasonable probability that the outcome
of the penalty phase would have been different. Counsel presented
evidence of Syriani’s background and cultural differences and their
effect upon his actions that night. The jury unanimously found, as
a mitigating factor, that Syriani was raised in a foreign culture.
Clearly, the jurors knew and understood the cultural issues
involved in this case, and weighed them, but concluded that this
did not outweigh the aggravating nature of the attack.
B.
We turn now to Syriani’s assertion that he received
ineffective assistance of counsel because counsel failed to
investigate and present mitigating evidence that he suffered from
various mental health problems related to his background and his
problems with cultural assimilation in this country.
6
Syriani did not relate that his father had been taken
prisoner and ridiculed after his release, causing him to have to
leave school at age twelve to work and support the family in
Jordan. Rather, Syriani testified when he was twelve years old,
his father developed cancer and could no longer work and, because
Syriani was the oldest boy, he had to quit school to support the
family.
25
Prior to trial, counsel arranged for Syriani to undergo a
competency examination at Dorothea Dix Hospital by Dr. James G.
Groce. Syriani was admitted on October 11, 1990, and remained
there until his discharge on October 24, 1990. At the conclusion
of the evaluation, Dr. Groce determined that Syriani suffered from
an adjustment disorder with depressed mood, but noted no other
psychiatric diagnoses. According to Dr. Groce, Syriani was
“frustrated, jealous and depressed during the period of time that
he was separated from his wife,” but that “he would have been able
to understand the nature and quality of his actions and the
difference in right and wrong at the time in question.” J.A. 2158.
Dr. Groce related that his evaluation and diagnosis were based on
“interviews with the patient, the result of physical examination,
laboratory studies, observation of his ward behavior during the
time that he was in the hospital and information received from the
patient’s attorney, the clerk of court, the county jail, the
patient’s mother and an investigating detective.” J.A. 2156. At
no time did Dr. Groce contact trial counsel or request any
additional information that may have been necessary to complete the
evaluation.
Mr. Plumides testified that, after reviewing the report and
independently researching the diagnosis, he made the decision not
to request additional evaluations or call Dr. Groce as a witness.
Given Dr. Groce’s opinions regarding Syriani’s ability to
26
understand his actions that night, he believed that Dr. Groce’s
testimony regarding Syriani’s depressed nature would hurt Syriani
more than help him at trial.
Syriani contends that trial counsel was ineffective and that
this decision not to do more was based on an incomplete
investigation. Specifically, Syriani points to the fact that trial
counsel did not contact Dr. Groce to discuss his findings, request
the entirety of the file from Dorothea Dix Hospital, or provide Dr.
Groce with any information concerning Syriani’s cultural
background. Syriani also points to the fact that trial counsel was
aware that, shortly after Syriani was arrested, he told his son
John that his “brain had blown up,” told his daughter that he had
“gone crazy,” and told another individual that he “had lost
control” at the time of the crime. J.A. 2114-15. Syriani asserts
that competent counsel, armed with this information, would have
requested additional information and evaluation from Dr. Groce and
would have asked Dr. Groce to explore potential mitigating
circumstances related to Syriani’s mental condition, or obtained a
separate psychological evaluation for purposes of uncovering
mitigating evidence.
To demonstrate the mitigating evidence that such an
investigation would have uncovered, Syriani points to the
evaluation performed by Dr. Robert Rollins, who is also with
Dorothea Dix Hospital, in preparation for the post-conviction
27
hearing. Dr. Rollins reviewed the records of Dr. Groce, an
affidavit prepared by Dr. Khater concerning Syriani’s cultural
background, and interviewed Syriani on two occasions. According to
Dr. Rollins, Syriani had (1) mild symptoms of post traumatic stress
disorder related to events in his childhood and to “the distressing
feelings regarding the death of his wife,” J.A. 2010; (2) rigid
beliefs and behavior which he characterized as a personality
disorder that narrowed the range of choices available to Syriani
when dealing with a situation and which affected his judgment and
behavior control; and (3) an adjustment disorder or depression
related to the disintegration of his family. In addition, Dr.
Rollins noted that, while not separate diagnoses, Syriani was
having relational problems and a cultural problem reflected by his
view of the appropriate roles of husband and wife and his inability
to cope with the changes in this relationship. According to Dr.
Rollins, “Syriani felt very strongly that he was responsible for
the behavior of his wife and children and he was actually quite
ashamed that they didn’t behave as he wished.” J.A. 2025.
Syriani argues that if trial counsel had requested a mental
health evaluation for purposes of mitigation evidence, as opposed
to just for a competency determination, they would have discovered
these mental and emotional problems and, had they presented this
evidence to the jury, there is a reasonable probability that the
jury would not have sentenced Syriani to death.
28
The state MAR court rejected this claim of deficient
performance, ruling that trial counsel had arranged to have Syriani
examined by a mental health expert, evaluated that report along
with the information provided by Syriani, and made the “reasonable
strategic decision not to call Dr. Groce as a witness because they
considered that he would do more harm to their case than good.”
J.A. 2374. Having received an opinion that Syriani suffered only
from an “‘adjustment disorder with depressed mood’” and “having
used their own professional judgment in evaluating defendant’s
statements to them and the evidence against defendant,” the state
MAR court concluded that “trial counsel had no obligation to shop
around for additional opinions of mental health experts.” J.A.
2374 (internal quotation marks omitted). In addition, the state
MAR court ruled that Syriani had failed to demonstrate that he was
prejudiced by the alleged deficiencies of counsel. The district
court ruled that trial counsel’s representation was not deficient
performance and, consequently, did not address the second prong of
Strickland.
In his testimony, Dr. Groce made it clear that he was only
retained to prepare a competency evaluation, and that he was at no
time charged with the task of evaluating Syriani’s mental health
status for purposes of mitigation evidence. Had he been retained
to perform the latter task, Dr. Groce testified, he would have
ordered an additional battery of tests. Accordingly, we are not
29
convinced that trial counsel’s efforts to uncover this type of
mitigating evidence was reasonable. However, we need not decide
whether the state court’s determination to the contrary was an
unreasonable application of the first prong of Strickland because
we are satisfied that there is no reasonable probability that, had
the jury been aware of the information presented by Dr. Rollins
during the MAR proceeding, the result of Syriani’s sentencing
proceeding would have been different.
To establish a Sixth Amendment violation, Syriani was required
to show that any failure on the part of his trial counsel
prejudiced his defense. To establish this necessary prejudice,
Syriani had to demonstrate “‘that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.’”
Wiggins, 539 U.S. at 534 (quoting Strickland, 466 U.S. at 694). In
the death penalty context, to assess prejudice, the court
“reweigh[s] the evidence in aggravation against the totality of the
available mitigating evidence.” Id. Prejudice requires “a
reasonable probability that at least one juror would have struck a
different balance.” Id. at 537.
The aggravating evidence in this case was particularly
compelling. While subject to a protective order arising from
earlier incidents of domestic violence, Syriani blocked his wife
30
and son’s path to their home with his van, approached the vehicle,
and chased Teresa as she attempted to get away from him by placing
the car in reverse. He then opened the driver’s door, and brutally
stabbed his wife with a screwdriver in the head and face, while
their ten-year-old son was in the passenger seat and over his
attempts to protect his mother from this brutal onslaught. The
evidence revealed that the assault was prolonged and calculated.
After John ran for help, he and his friend returned to help his
mother, only to find Syriani still stabbing Teresa. According to
Mr. Wilson, at one point Syriani crossed the street, returned to
his van, fumbled with something, and then returned to Teresa’s
vehicle to continue the attack. And, Mr. O’Connor’s testimony
suggests that Syriani intended to go back a third time to resume
his assault upon Teresa, but changed his mind when he saw O’Connor
approaching Teresa’s vehicle.
As noted by the North Carolina Supreme Court, the pain and
suffering to Teresa and her children was extraordinary:
[D]efendant stabbed his victim twenty-eight
times. While many of the wounds were to
[Teresa’s] face and neck, several were to her
arms and hands, suggesting that she tried to
defend herself or ward off the blows.
Further, one wound penetrated her brain three
inches, causing hemorrhaging and swelling in
the brain. Another blow fractured her jaw and
several of her teeth. These blows did not
cause immediate death. The victim was able to
communicate with her daughter Rose moments
after the attack, and, as well, with the
attending emergency room assistant upon her
arrival at the hospital. Further, a tube was
31
placed through her nose to her lungs to assist
her breathing. She died twenty-eight days
later as a result of the three-inch puncture
wound to her brain, after having suffered
stroke, infarct or paralysis. Defendant
correctly assesses the record as devoid of
expert testimony that his victim suffered
“inordinate” pain, but notwithstanding, the
jury could reasonably infer from this evidence
that the victim sustained and endured
agonizing physical pain before becoming
unconscious or comatose. Further, this
evidence supports a finding that the killing
was excessively brutal and conscienceless,
pitiless and unnecessarily torturous. . . .
Additionally, the evidence that defendant had
abused his wife to the extent that she had
left the house with her children; that he had
threatened to kill her should she ever leave
him; that only two weeks prior to the killing
she had an ex parte domestic violence order
served on defendant, requiring him to leave
their home, and that defendant had tried to
talk to her or the children, which overtures
she had rebuffed, suggests that she feared her
husband. The jury could reasonably infer that
the victim, upon seeing defendant’s van that
night, being blocked by the van, observing his
getting out and shaking his fist at her, and
then attacking her as she tried to reverse the
car, suffered and endured psychological
torture or anxiety not only for herself but
for her young son who was sitting beside her
trying to stop his father.
Syriani, 428 S.E.2d 141-42 (citations omitted).
For his part, Syriani, after brutally assaulting his wife in
the presence of his son, called his son a bastard as he left, drove
to a nearby fire station to seek medical treatment for his minor
injuries, requested that the police take him to the emergency room
to be treated for his minor injuries when they arrived at the fire
32
station to arrest him, and told the firemen and the emergency room
physicians that Teresa had assaulted him.
Weighed against this aggravating evidence, Syriani advances
evidence that he was raised in poverty, suffered from mild post-
traumatic stress disorder (caused by his upbringing or his murder
of his wife or both), depression, and difficulty coping with the
americanization of his wife and break-up of their marriage, which
Dr. Rollins classifies as “personality disorders” affecting his
ability to control his behavior.
The evidence presented at the MAR hearing was more extensive
than that presented during the trial. But it is not so drastically
different from that which the jury actually did consider and weigh
as to lead us to conclude that the result might have been
different. As a result of the efforts of defense counsel presented
with a very difficult case, the jurors were made aware that Syriani
was raised in a unique cultural setting and that he was subject to
mental and emotional disturbances at the time of the murder.
Indeed, the jury unanimously found, as mitigating factors, that
Syriani had been raised in a different culture and that he
committed the murder while he was under the influence of mental or
emotional disturbance. Seven members of the jury found, as a
mitigating factor, that Syriani was aggravated by events following
the issuance of the ex parte domestic order. And, several of the
jurors found that Syriani understood the severity of his conduct,
33
had demonstrated an ability to abide by lawful authority since his
incarceration, had a history of good work habits, had a history of
being a good family provider, and had been a person of good
character or reputation in the community in which he lived. The
jury unanimously rejected, however, as mitigating circumstances
that Syriani had no significant history of prior criminal activity,
and that Syriani had demonstrated remorse for his actions.7
In short, Syriani’s jurors were obviously aware of the
cultural and social aspects underlying the murder, as well as the
emotional and mental deficiencies associated with it, and
unanimously found these factors to be mitigating in character.
Yet, weighed against the aggravating evidence, they unanimously
found that these mitigating circumstances, coupled with any others,
did not outweigh the aggravating circumstances and recommended a
sentence of death. In light of the totality of the evidence
presented at trial and in the state habeas proceeding, we conclude
that Syriani has failed to demonstrate a reasonable probability
7
Syriani denied having ever abused his children or his
wife, and attempted to convey to the jury a scenario in which he
“snapped” out of concern for his wife and children and fear that he
was losing his family in the divorce. His children testified about
their father’s history of having a violent temper and his abuse of
their mother and the children, as well as of the incident when the
police took Teresa and the children to a battered women’s shelter.
Trial counsel introduced evidence that Syriani had no prior
criminal convictions, either in his home country or in the United
States. However, the State argued to the jury that they should
reject this mitigating factor based upon the testimony that Syriani
had been abusive to his family.
34
that, but for counsel’s failure to present the additional evidence
of Syriani’s cultural, social, and mental background, his sentence
would have been different. Syriani, therefore, has failed to
establish that he suffered prejudice from the alleged deficient
conduct of counsel.
IV.
For the foregoing reasons, we affirm the district court’s
denial of Syriani’s petition for writ of habeas corpus.
AFFIRMED
35
