court concluded that, even "[a]ssuming that
the new defense experts would have testified as they did in
the state PCR proceeding, . . . there was no constitutional vio-
lation because the original verdicts [were] worthy of confi-
dence." First PCR Order 76 (internal quotation marks
omitted). The court elaborated:

     Now, and before, the jury would be told the same
     thing — the defendant’s print was located outside
     the home and there are no prints of the defendant
     located inside the home. Further, the alleged latent
     print on the toilet, if identifiable, is of little value. As
     each defense witness conceded, they could not elimi-
     nate Mrs. Edwards from being the maker because
     her finger tip prints were not available for identifica-
     tion. Further, her palm print was already located near
     the same area.

        The situation with E-5 would be much different if
     it was a bloody print suggesting a post-crime place-
     ment. However, it was an unidentified latent print or
     an unidentifiable latent print. Even the possibility
     that it did not belong to [Elmore] or the victim would
     not mandate a new trial. The evidence is not exoner-
     ating. The mere fact that an unidentified print is
     found at the scene does not mean the owner of that
                       ELMORE v. OZMINT                       97
    print was Mrs. Edwards’ assailant or [that the print
    was] impressed contemporaneous with the crime.
    Here, the jury was told (or could have been told
    based upon the SLED report) that the latent print on
    the toilet was not identified with Edward Elmore.
    Nothing has changed since the trial that would have
    affected what the jury heard. If it was error in the
    expert opinion of Agent DeFreese with respect to E-
    5 on the toilet, it was not constitutional error.
    [Elmore’s] claims to the contrary are without sup-
    port.

Id. at 76-77 (internal 
quotation marks omitted); see also 
id. at
109 ("[T]he 
fingerprint evidence claim does not ‘support’ Mr.
Elmore’s innocence, it merely reveals a print left by an
unidentified person at some time in the past. It is not the exis-
tence of other prints in the home, it is the fact that Elmore’s
print was found that is significant."). Finally, the court
remarked that "[t]he problem with [Elmore’s] argument is that
it fails to recognize that expert opinion in the forensic area
can often not be consistent" — that is, "experts may disagree
as to results." 
Id. at 78.

   Assessing 
the fingerprint evidence as part of Elmore’s inef-
fective assistance claim, the state PCR court did not squarely
address the performance prong of Strickland. See First PCR
Order 24-25. Elsewhere in its decision, however, the court
observed that Elmore could not obtain a new trial premised on
the fingerprint being "after-discovered evidence," because
"the evidence of the print was as available in 1982 through
1987 as it is today and could have been analyzed [by the
defense] with ‘due diligence.’" 
Id. at 78 n.2. 
In any event, the
court rejected the fingerprint evidence aspect of Elmore’s
ineffective assistance claim under Strickland’s prejudice
prong, for the same reason it deemed the print to be immate-
rial under Brady: the existence of an additional identifiable
print in the Edwards home, and the exclusion of Elmore as the
98                         ELMORE v. OZMINT
print’s source, "did not undermine confidence in the outcome
of this case." 
Id. at 25.

   The 
state PCR court further concluded that Elmore failed
to substantiate a Brady, Giglio/Napue, or Strickland claim
premised on the "E-1" and "E-3" prints that were lifted, along
with Elmore’s "E-2" thumbprint, from the exterior frame of
the back door into the Edwards home. See First PCR Order
25, 77-78. Although DeFreese had reported in 1982 that nei-
ther E-1 nor E-3 was identifiable, he conceded during the
PCR proceedings that he had been incorrect with respect to
one of those prints; meanwhile, Elmore’s experts Starling and
Scalise opined that both E-1 and E-3 were identifiable, and
Starling excluded Elmore as their source. In considering the
import of that evidence, the court highlighted three points:

       First, it was conceded that Mr. Elmore’s [E-2 thumb-
       print was] located in the same area of the door frame
       [as the E-1 and E-3 prints]. Second, the mere fact of
       an unidentified print outside the house does not con-
       nect it necessarily with Mrs. Edwards’ death, absent
       other circumstantial evidence, such as Mr. Elmore’s
       hair being consistent with the numerous hairs found
       on the victim’s bed. Third, the jury was told of the
       other prints28 and knew they had not been identified
       with Elmore.

Id. at 77-78. The 
court concluded that the new information
about the E-1 and E-3 prints did "not mandate a new trial,"
because it did "not undermine confidence in the [1984 ver-
dict]." Id.; see also 
id. at 25 (explaining 
same).

  As for Elmore’s E-2 thumbprint, the state PCR court did
not mention Scalise’s evidence challenging the 1984 testi-

   The "other prints" referred to by the state PCR court are apparently the
  28

two identifiable prints found inside the Edwards home and matched to
Mrs. Edwards.
                       ELMORE v. OZMINT                       99
mony of DeFreese and four Greenwood city police officers
that the print appeared to be "fresh." Notably, however, the
court has not referred to the thumbprint as being fresh when
summarizing the evidence against Elmore. Additionally, the
First PCR Order contains no discussion of Scalise’s revela-
tions that the E-2 print was upside-down and wrapped around
the door frame, nor Scalise’s opinion that such placement was
consistent with someone performing chores, but inconsistent
with someone knocking on the door and waiting for Mrs.
Edwards to answer.

                               f.

   With respect to James Gilliam’s recantation of his 1982,
1984, and 1987 trial accounts of Elmore’s spontaneous jail-
house confession, the state PCR court assessed, inter alia,
claims under Giglio/Napue and Strickland. The court recog-
nized that the premise of the Giglio/Napue claim was that Gil-
liam’s "recantation of his earlier trial testimony was true," and
that "the state should have known the earlier testimony was
false" and "revealed the falsity of the confession previously."
First PCR Order 49. The court rejected the proposition, how-
ever, that Gilliam’s PCR testimony was reliable and his trial
testimony unreliable. In so doing, the court observed:

    Why Gilliam chose to recant his [trial] testimony is
    not evident, but that does not mean that his new ver-
    sion has credibility and I hold that it does not.
    [Elmore’s claim] must be dismissed for the lack of
    credibility in the recantation.

Id. at 60; see 
also 
id. at 109 ("[T]his 
Court finds that James
Gilliam did not testify falsely at the three trials — the post
conviction relief recantations are the matters not worthy of
belief."). The court also ruled that Elmore’s trial counsel —
having moved in 1984 to exclude Gilliam’s testimony and
then having "vigorously cross-examine[d]" him in an "at-
tempt[ ] to suggest that [he] was getting favorable treatment"
100                    ELMORE v. OZMINT
for his account of Elmore’s confession — was not constitu-
tionally ineffective in dealing with Gilliam as a witness. 
Id. at
10-11. Simply 
put, according to the court, "[t]here was noth-
ing more counsel could have done which would have proba-
bly changed the result." 
Id. at 11.

                               g.
   The state PCR court considered the testimony of Dr. Jona-
than Venn in the context of assessing Elmore’s Strickland
contention that his trial lawyers were deficient in failing to
present expert psychological evidence that his statement to
investigators — that if he killed Mrs. Edwards, he did not
remember doing so — was not inculpatory. The court con-
cluded, inter alia, that because Elmore had testified during the
1982 trial that he had not made any such statement, counsel
could not "be deemed deficient for failing to present specula-
tive testimony [during the 1984 trial] that the comment was
the product of a memory deficit or low intelligence." First
PCR Order 47. Additionally, the court observed that such tes-
timony, "if presented, would not have undermined confidence
in the outcome where it was in support of the fact that [the
statement] was made and could be truthful!" 
Id.

                               h.

   As a 
general matter, the state PCR court underscored that
Elmore had "been convicted two times of the murder of Doro-
thy Edwards in Greenwood and sentenced to death three
times." First PCR Order 4. The court also referred to Elmore’s
"attempts to undermine confidence in those sound verdicts"
— though the 1982 convictions and death sentence were over-
turned by the Supreme Court of South Carolina because of
reversible error by the trial judge, and the 1984 death sentence
was vacated by the Supreme Court of the United States for
improper exclusion of mitigation evidence. See 
id. In any
event, 
the state PCR court determined that — during the guilt
phase of the 1984 trial, as well as the 1987 sentencing-phase-
                           ELMORE v. OZMINT                           101
only trial — "counsel for [Elmore], the investigating law
enforcement officers, and the prosecution performed within
the mandates required by the United States Constitution." 
Id.
at 4-5.

   Specific 
to Elmore’s multi-faceted claim that his 1984
defense team rendered constitutionally deficient assistance,
the state PCR court recognized that Elmore’s prior testimony,
"etched into the record in 1982, had an effect on how counsel
would prepare and present the case in the retrial in 1984."
First PCR Order 9. The court cited Elmore’s 1982 testimony
concerning

       his location on Saturday and Sunday, his denial of
       any involvement in the death of Mrs. Edwards, his
       admission of knowing Mrs. Edwards and having
       been both inside and outside her house, his denial
       that he made any comments to [the police] concern-
       ing if he killed him [sic] he did not remember, his
       denial of any communication about the crime at all
       with James Gilliam, his concession that he wore the
       jeans, coat, and shoes on the same night Mrs.
       Edwards was killed, and his removal and loss of the
       white shirt he was wearing.

Id. at 8-9. Without 
explaining why that testimony (with one
exception) interfered with trial counsel’s ability to engage in
the tactics that Elmore asserted were necessary for a fair trial
— particularly a pretrial investigation of the State’s forensic
evidence — the court concluded that "[c]ounsel was neither
‘deficient’ or [sic] has Sixth Amendment prejudice been
shown with respect to the second trial." 
Id. at 9.29
  29
     The one exception to the state PCR court’s failure to explain why
Elmore’s 1982 testimony interfered with a proposed tactic for the 1984
trial was this: As discussed above, the court ruled that the defense team
was not deficient in 1984 by failing to present expert testimony on
Elmore’s memory deficits to explain his "if he killed Mrs. Edwards, he did
not remember doing so" statement to the police, because, at the 1982 trial,
Elmore had denied making any such statement. See First PCR Order 47.
102                       ELMORE v. OZMINT
   Finally, the state PCR court declared that there was "over-
whelming evidence . . . that solely pointed to the guilt of
Edward Elmore." First PCR Order 119. According to the
court, "[v]iewed from the juror’s perspective in the 1984 trial,
the only choice based upon the evidence was to convict." 
Id.
at 120.30

                                   V.
                                   A.

   Elmore pursued an appeal from the First PCR Order in the
Supreme Court of South Carolina. In late October 1998, while
that appeal was pending, the State revealed that it had located
a box containing physical evidence — previously claimed to
be missing — that Elmore had persistently sought in the PCR
proceedings. The most significant piece of once-missing evi-
dence was "Item T," which included the unmatched Cauca-
sian hair recovered from Mrs. Edwards’s bloody abdomen
during her autopsy. Item T was found, along with other
Edwards murder evidence, in hair analyst Earl Wells’s private
office at SLED headquarters in Columbia, where it apparently
had been stored away for nearly seventeen years.

                                   1.

  As early as the proceedings culminating in the First PCR
Order of July 3, 1997, Elmore had underscored discrepancies
between the written reports of Dr. Sandra Conradi and Earl
Wells concerning the contents of Item T. According to Dr.
Conradi’s autopsy report, "[e]xamination of [Mrs. Edwards’s]
  30
     The state PCR court’s observations about the "overwhelming evi-
dence" against Elmore were made in the course of assessing his Sixth
Amendment claim that the 1984 trial was not conducted before an impar-
tial jury. See supra note 1. That claim is premised on PCR evidence that
a 1984 juror, after being selected for the jury and while preparing to be
sequestered for the duration of the proceedings, had improper and prejudi-
cial contact with a juror from the 1982 trial.
                       ELMORE v. OZMINT                       103
chest and abdomen reveal[ed] occasional dark colored tightly
curled apparent pubic hair." J.A. 3617. Dr. Conradi signed a
subsequent log of "Evidence Transferred" to the police,
reflecting the transfer of "fibers, hairs from chest & abdo-
men." 
Id. at 3628. After 
receiving and analyzing that evidence
(by then designated as Item T), Wells reported that it con-
sisted of "[b]lue fibers." 
Id. at 3630. An 
additional record
indicates that, at the time of Elmore’s first trial in 1982, Wells
transferred custody of Item T to the Greenwood City Police
Department. See 
id. at 1777.

   Item 
T was neither referenced nor introduced during any of
Elmore’s three trials, and the conflicting reports of Dr. Con-
radi and Wells went unnoticed and unquestioned by Elmore’s
defense team. Contrastingly, Elmore’s PCR counsel discerned
the discrepancies and repeatedly sought access to Item T to
resolve them, but was foreclosed in those efforts by the
State’s claim that Item T was missing. See, e.g., J.A. 2301-02
(representation to state PCR court by Assistant Deputy Attor-
ney General Donald J. Zelenka in 1995 that "[w]e’ve been
doing diligent searches" for the missing evidence, "but I have
it pretty much upon firm information that those matters are no
longer in existence"); 
id. at 1616-19 (1995 
PCR deposition
testimony of Wells that Item T was among evidence turned
over to city police in 1982 and, to his knowledge, had never
been returned to him or anyone else at SLED).

   Dr. Conradi testified during the state PCR court’s 1995 evi-
dentiary hearing that, although she reported both fibers and
hairs in Item T, it was "just a quick designation of what" the
Item T materials might be. J.A. 2704. Furthermore, Dr. Con-
radi cautioned that it was "not unusual" to mistake hairs for
fibers or fibers for hairs. 
Id. at 2684. She 
explained: "What we
attempt to do is collect the evidence . . . and transfer it to
somebody who can see what it is. We have called hairs fibers
and fibers hairs before." 
Id. at 2704.

  For 
his part, Wells testified at the hearing on direct exami-
nation by the State that his "microscopic examination
104                    ELMORE v. OZMINT
revealed that the only thing present in [Item T] was blue
fibers; no hair." J.A. 2792. On cross-examination, Elmore’s
PCR counsel asked Wells whether he had "independent
knowledge" that Item T contained blue fibers only, or whether
he was "simply making an assumption" based on his written
report. 
Id. at 2820. Wells 
insisted that it was "not an assump-
tion" that the Item T materials were limited to blue fibers. 
Id.
He proclaimed: "I 
have examined the items that were con-
tained in that exhibit. Those items proved to be blue fibers.
No hairs. Just blue fibers." 
Id. According to Wells, 
"it was
wrong for [Dr. Conradi] to identify fibers and hair." 
Id.

   Relying on that 
1995 testimony, the state PCR court
rejected Elmore’s Sixth Amendment Strickland contention
that his trial lawyers rendered ineffective assistance by failing
to investigate the discrepancies between Dr. Conradi’s and
Wells’s descriptions of Item T. See First PCR Order 32. In so
ruling, the court found that Item T consisted solely of blue
fibers, and explained that "[d]efense counsel cannot be
deemed ineffective for failing to develop that blue fibers were
found on the victim’s body rather than hair." 
Id. Indeed,
according to 
the court, Elmore "failed to show either deficient
performance or prejudice." 
Id. Elmore thereafter filed 
his
appeal from the First PCR Order in the state supreme court.

                               2.

   On October 29, 1998, Assistant Deputy Attorney General
Zelenka advised Elmore’s PCR counsel that Edwards murder
evidence had been discovered in Wells’s private office at
SLED headquarters, where the parties met on November 19,
1998, to discern what had been found. As it turned out, the
evidence included four microscopic slides mounted with the
Item T materials — four human hairs, three animal hair frag-
ments, and a single blue fiber. Consequently, on December 4,
1998, the parties filed a joint motion in the state supreme
court to dismiss without prejudice Elmore’s pending appeal
from the First PCR Order, and to remand to the state PCR
                         ELMORE v. OZMINT                         105
court for further proceedings, including a reopening of the
evidentiary record. The state supreme court granted the par-
ties’ motion by its order of January 8, 1999.31

   In a subsequent deposition, Zelenka testified concerning the
discovery of the Item T slides and other evidence in Wells’s
office. Zelenka explained that, in mid-October 1998, follow-
ing an inquiry from the state supreme court about missing
exhibits from the state PCR court’s 1995 evidentiary hearing,
he contacted Wells "to see if somehow he may have had
[those exhibits] in his possession for some reason." J.A. 3510.
Wells responded to the inquiry on October 28 or 29, saying
that he did not possess the sought-after exhibits, but that he
had "located a box of [other] Elmore materials" during a
move from one private office to another within SLED head-
quarters. 
Id. Wells also said 
"he had been meaning to call
[Zelenka] about that"; Wells did not specify (and Zelenka did
not inquire) when the evidence had been discovered. 
Id. at
3510-11. Zelenka 
was not sure where in Wells’s office the
Item T slides had been located, but recalled it might have
been in a filing cabinet. See 
id. at 3517.

   The 
State offered to have Wells testify during the state PCR
court’s initial remand hearing of April 9, 1999, but Elmore’s
PCR counsel objected on the ground that such testimony
should await further analysis of Item T. See J.A. 3363-64. The
court sustained Elmore’s objection, marked for identification
the four Item T slides and other evidence that had been dis-
covered in Wells’s possession, and released that evidence to
Elmore’s lawyers for testing. See 
id. at 3364-71.

   That 
June, Elmore’s hair expert, analytical microscopist
Skip Palenik, determined that the first Item T slide contained
a Caucasian pubic hair inconsistent with Mrs. Edwards. See
J.A. 3564-65. Additionally, Palenik reported that the second
  31
    The state supreme court’s January 8, 1999 remand order is found at
J.A. 3354.
106                     ELMORE v. OZMINT
slide included a Caucasian hair fragment unsuitable for micro-
scopic comparison, three animal hair fragments, plus the sin-
gle blue fiber; that the third slide contained a Caucasian head
hair that might be suitable for comparison if properly
mounted; and that the fourth slide contained a Caucasian head
hair that was consistent with Mrs. Edwards. See 
id. at 3565-
66.
   At a status conference of July 1, 1999, Elmore requested
the state PCR court to grant immediate relief — a new trial
— on the basis of Palenik’s finding of the unmatched Cauca-
sian pubic hair. See J.A. 3403-04. The State opposed
Elmore’s new trial request as "a little premature," and sought
to have the Item T slides analyzed by an independent expert
of its choosing, plus re-examined by Wells. See 
id. at 3407-
09. 
Counsel for Elmore indicated opposition to Wells’s fur-
ther hair analysis, explaining that it would be

      absolutely of no value to this Court to have Mr.
      Wells look at the hair again. . . . Mr. Wells has had
      the hair in his possession for 17 years[, and] is the
      person who received this hair evidence from Sandra
      Conradi[,] who mounted it on slides, who examined
      it under a microscope and then wrote down the result
      of his analysis as blue fiber. Mr. Wells at this point
      has maybe more interest in the outcome of this anal-
      ysis of that hair evidence than Mr. Elmore does.

Id. at 3410-11. The 
court deferred ruling on Elmore’s new
trial request, authorized independent testing by the State, and
denied permission for re-examination by Wells or any other
SLED agent. 
Id. at 3412.

   Thereafter, 
the State submitted the four Item T slides to
Myron T. Scholberg, a retired FBI forensic scientist, for
microscopic examination. According to Scholberg’s affidavit,
"the presence of hair was immediately apparent and clearly
visible, that is to say that hair was visible on these slides to
                          ELMORE v. OZMINT                          107
the naked eye." J.A. 3638. Scholberg averred that "I do not
know or see how Mr. Wells could have looked at the four
microscopic slides and honestly reported that the four Item T
slides only contained blue fiber." 
Id. Scholberg disagreed,
however, 
with Palenik’s conclusion that the Caucasian pubic
hair on the first slide was inconsistent with Mrs. Edwards.
Rather, Scholberg found that the hair on the first slide was
consistent with Mrs. Edwards, as were the hairs on the third
and fourth slides. See 
id. at 3566-67. Like 
Palenik, Scholberg
found that the second slide contained a Caucasian hair frag-
ment unsuitable for microscopic comparison, three animal
hair fragments, and the lone fiber. See 
id.

   In the face 
of the diverging opinions of Palenik and Schol-
berg, the parties agreed to subject the Item T materials to
mitochondrial DNA testing, which had then only recently
been deemed admissible by the state supreme court. The final
results of the DNA testing, performed by LabCorp in North
Carolina, were reported on November 26, 2000. See J.A.
3635-37. In line with Scholberg’s analysis, the DNA testing
indicated that the hairs on the first, third, and fourth slides
belonged to Mrs. Edwards or her maternal relative. See 
id. at
3637. Significantly, 
however, the DNA testing also revealed
that the second slide’s previously uncompared Caucasian hair
fragment "could not have originated from Dorothy Edwards."
Id.32

                                   3.

   Relying on the DNA test results excluding Mrs. Edwards
as the source of one of the Item T Caucasian hairs, Elmore
filed a motion for summary judgment, by which he again
requested immediate relief in the form of a new trial. In his
  32
    It is not clear from the record whether the unmatched Caucasian hair
contained on the second Item T slide is a head hair or a pubic hair, or
whether any effort was made to determine the source of the second slide’s
three animal hair fragments and single blue fiber.
108                    ELMORE v. OZMINT
supporting memorandum, Elmore explained that, although he
had "raised many grounds for relief," he sought summary
judgment on "a straightforward claim of state misconduct,
including concealment of material exculpatory evidence and
perjured testimony by law enforcement officers." J.A. 3540.
As part of its opposition to Elmore’s motion, the State prof-
fered an affidavit executed by Wells, who stated that, as of his
1995 PCR testimony, he was "of the belief that [he] did not
possess any evidentiary material" concerning the Edwards
murder. 
Id. at 3573. Wells 
also averred, arguably contrary to
his 1995 testimony, that he had fully "relied upon [his 1982
written] report in responding to questions concerning the test-
ing." 
Id. ("During my testimony 
at the state post-conviction
relief hearing in March 1995 I testified concerning my analy-
sis of item ‘T’ and relied solely upon my April 2, 1982 report
and my standard practice upon review of my case documenta-
tion."). According to Wells, he found Item T and the other
once-missing evidence in his office "[d]uring late October
1998," and he did not inspect that evidence until November
19, 1998, when counsel for the parties met with him at SLED
headquarters. 
Id. at 3574. At 
that time, Wells made "a visual
inspection of some of the material and determined it included
hair in addition to fibers through the use of a stereo micro-
scope." 
Id.

   During a hearing 
conducted on December 21, 2000, the
state PCR court, without objection, converted Elmore’s sum-
mary judgment motion to a motion to alter or amend the First
PCR Order. See J.A. 3585 ("Right or wrong, I treat it as a
motion to alter or amend, you get the same result if I alter it
or amend it so as to grant the relief, you get the same results
if I deny it."). Elmore’s PCR lawyers focused their arguments
on the Fourteenth Amendment Brady claim and alleged per-
jury concerning Item T, and also reminded the court of previ-
ously raised issues, including irregularities in the blood,
fingerprint, and other hair evidence, the recantation of James
Gilliam, and Elmore’s low level of intelligence and memory
problems. One of those lawyers summarized:
                      ELMORE v. OZMINT                        109
    Item-T is, in and of itself, is enough to grant a new
    trial. The results are exculpatory, they are clearly
    exculpatory. Caucasian hair . . . found on the dead
    abdomen of the victim, [not belonging] to the victim
    or to Mr. Elmore. That, you know, in and of itself is
    a reason you should alter or amend the judgment in
    this case and grant a new trial to Mr. Elmore. But
    Item-T does not stand alone[,] as powerful as it is, as
    exculpatory as the results are, it doesn’t stand alone.
    And the suspicious nature of how it was found [—]
    I guess sometimes the cover up is always worse than
    the lie, but the continuing to have lies about what it
    was, who had it when, again casts essentially a pale
    of suspicion over everything in this case.

Id. at 3594. Focusing 
on the forty-five pubic hairs allegedly
recovered from Mrs. Edwards’s bed, the lawyer asserted that
"the hair evidence was always suspicious to begin with, [and]
I think now in light of [the Item T] evidence and what this
Court has seen[,] it’s much beyond merely suspicious." 
Id. In
the lawyer’s 
words, "the whole thing really stinks." 
Id. at
3594-95.

   In 
response, the State conceded that Item T had been misre-
ported as encompassing solely blue fibers, but maintained that
the unmatched Caucasian hair discovered therein was not
material under Brady (nor prejudicial under Strickland)
because Mrs. Edwards "could easily have picked up stray
hairs" during the violent assault in her home that were "com-
pletely unrelated to this crime." J.A. 3602. Moreover, accord-
ing to the State, other evidence — such as Elmore’s
thumbprint outside the house, the Type A blood on his cloth-
ing, the microscopically consistent pubic hairs on Mrs.
Edwards’s bed, and Gilliam’s account of Elmore’s jailhouse
confession — "point[ed] to Mr. Elmore as being . . . the
appropriate Defendant in this case." 
Id.

  At the close 
of the hearing, the state PCR court orally ruled
that, although it would amend the First PCR Order to address
110                     ELMORE v. OZMINT
the subsequent developments with respect to Item T, it would
not award Elmore a new trial. See J.A. 3614. In so ruling, the
court accepted the State’s position, explaining: "Obviously
[Item T] should have been disclosed to counsel at the time,
but as far as impacting on the [1984 verdict], I don’t think that
it would have." 

indicated that the First PCR
Order’s disposition of all other grounds for relief would stand.
Id. In closing, the 
court remarked, "Good luck to everybody,
I’m out of here." 
Id.

   On January 4, 
2001, prior to the state PCR court’s issuance
of a written order memorializing its December 21, 2000 oral
ruling, Elmore filed a motion for reconsideration and addi-
tional fact development. Elmore maintained therein that his
lawyers "were caught off guard by the ‘conversion’ of" his
summary judgment motion to a motion to alter or amend, and
had expected "there would be opportunities for further fact
development" if the motion were denied. J.A. 3641
("[C]ounsel for Mr. Elmore did not make sufficiently clear at
the hearing that if the court believed the present record was
not sufficient to grant post-conviction relief, [Elmore] was
entitled to take advantage of the opportunity provided by the
South Carolina Rules of Civil Procedure to seek the court’s
assistance in additional fact development."). Elmore asserted
that he should yet be entitled to pursue motions for authoriza-
tion to do the following:

      *Exhume the body of Mr. James Holloway in order
      to obtain a DNA sample (to determine if the [unmat-
      ched Item T] hair belongs to him) and to see if it is
      possible to still obtain finger prints (to check against
      the unidentified prints found on the toilet seat in the
      victim’s private bathroom);

      *Obtain a court order for the release of any other fin-
      gerprint cards, etc., which may exist for Mr. Hol-
      loway;
                       ELMORE v. OZMINT                       111
      *Review the personnel records of SLED Agent Earl
      Wells and other officers involved in this case;

      *Review SLED records to determine when Mr.
      Wells, in fact, moved offices; . . .

      *Conduct DNA testing of the shoe and blue jean
      pants introduced at trial, but without waiving
      [Elmore’s] objection to the tainted chain of custody
      of the shoes and pants and noting that [Elmore] fully
      believes that the few small areas of Type A blood
      . . . identified on the shoe and pants were either
      placed their [sic] when the items were inexplicably
      removed from SLED by former neighbor to James
      Holloway[,] SLED agent Tom Henderson, . . . prior
      to the items being tested — or that testing of the
      items would further exonerate [Elmore]; and

      *Conduct DNA testing of the scrapings taken from
      under the victim’s fingernails.

Id.

   The State opposed 
Elmore’s motion for reconsideration and
additional fact development, contending that his lawyers had
demonstrated consent to the conversion of the summary judg-
ment motion and had never before indicated a need for further
discovery despite ample opportunities to do so. See J.A. 3644-
47. The State also asserted that "further discovery is simply
not supported by reason," and that the specific request "to
exhume the body of Mr. James Holloway is made without any
legal or factual showing." 
Id. at 3647-48. In 
reply, Elmore
maintained that his summary judgment motion served the
interests of judicial economy and efficient use of financial
resources. See 
id. at 3651. Elmore 
further contended that
"[j]ustice requires that [the requested additional] testing occur
before the state executes [him], and the appropriate time and
place to do this crucial testing is now and in the state court’s
112                    ELMORE v. OZMINT
jurisdiction." 
Id. Nonetheless, Elmore indicated 
that he was
amenable to "less intrusive methods of obtaining" Holloway’s
DNA than the exhumation of his body. 
Id. at 3652.

                               4.
   By its Second PCR Order of February 26, 2001, the state
PCR court memorialized its December 21, 2000 oral ruling,
and denied Elmore’s motion for reconsideration and addi-
tional fact development. At the outset of its decision, the court
observed that it was disallowing Elmore a new trial premised
on the unmatched Item T hair; nevertheless, the court recog-
nized that such "hair evidence is new evidence not available
at the earlier hearings which" required amendment of the First
PCR Order’s discussion of Elmore’s previously raised Item T
Strickland contention. See Second PCR Order 3-4.

   In addressing the merits of Elmore’s more recent Item T
Brady claim, the state PCR court recognized: "That the hair
evidence taken from the victim’s body should have been dis-
closed during discovery cannot be denied." Second PCR
Order 4. The court noted, however, that Elmore’s "position
that Agent Wells knowingly withheld this evidence is refuted
by both his Affidavit and the fact that it was he, not another
source, who discovered the missing evidence and reported the
discovery in October of 1998 to Mr. Zelenka." 
Id. It is not
clear whether the court ruled that the State improperly sup-
pressed Item T despite Wells’s mere negligence, or that
Wells’s mere negligence excused the suppression. Mean-
while, the court plainly dismissed the notion that Wells had
committed perjury in his 1995 PCR testimony. See 
id.
(accepting Wells’s "sworn 
statement that his previous testi-
mony was incorrect but was based upon his then recollec-
tion"). And, the court did not confront the issue of why
Wells’s 1982 written report reflected that Item T consisted
solely of "[b]lue fibers." J.A. 3630.

  Relevant to the issue of Brady materiality, the state PCR
court underscored that only one unmatched Caucasian hair
                       ELMORE v. OZMINT                      113
was found among the Item T materials, and indicated that the
Item T evidence would be more compelling if "numerous
hairs removed from the body were Caucasian and inconsistent
with the victim’s hair as established by the latest DNA test-
ing." Second PCR Order 4. The court concluded:

    One hair from the victim’s body from the bedroom
    floor that could have come from various sources
    does not mandate a new trial[,] especially where
    even if the state of the art DNA testing existed in
    [the 1980s], the test results would be the same, i.e.
    one Caucasian hair from the body not consistent with
    the victim’s hair.

Id. at 5. The 
court also alluded to the forty-five pubic hairs
that were microscopically consistent with Elmore and alleg-
edly found on Mrs. Edwards’s bed, noting Elmore’s failure to
request DNA testing of those hairs. See 
id.

   Revisiting Elmore’s previously 
raised Item T Strickland
contention, the state PCR court "decline[d] to find [Elmore’s]
counsel ineffective for not further pursuing the fiber evi-
dence." Second PCR Order 4. The court seemed to rely on the
prejudice prong of Strickland, rather than the performance
prong. That is, in the course of its discussion relevant to
Brady materiality, the court remarked that Elmore "failed to
prove a Sixth Amendment violation due to attorney defi-
ciency" — thereby indicating that Elmore’s Strickland con-
tention failed for absence of prejudice, just as his Brady claim
fell short for lack of materiality. 
Id. at 5.

   Finally, 
on its denial of Elmore’s request for additional fact
development, the state PCR court observed that "[t]he argu-
ment that counsel was misled by the [conversion of the sum-
mary judgment motion] is not compelling," and the court
criticized Elmore’s lawyers for "apparently assum[ing] I
would order a new trial based on argument not proof." Second
PCR Order 6. The court also noted that "[t]his case has been
114                         ELMORE v. OZMINT
on remand since 1999, the final hearing held and extensive
investigation performed. I will not now authorize further test-
ing. The case was remanded by consent to examine the miss-
ing hair evidence, not to reopen the evidentiary hearing." 
Id.
As to specific 
items sought by Elmore, the court denied his
"request to inspect SLED Agent Wells’ file," because Elmore
had disregarded prior opportunities to obtain that evidence. 

withheld permission to exhume the body of
Jimmy Holloway, explaining: "Holloway himself testified he
was in the victim’s home when the body was found. Even if
DNA testing showed the single [unmatched Item T] hair to be
Holloway’s, the prior jury verdicts would not have been
undermined." 
Id. at 5.33
  33
    At a subsequent hearing of May 7, 2001, the state PCR court advised
the parties that it would correct an erroneous reference in the Second PCR
Order to the unmatched Item T hair as being "non-Caucasian" (rather than
"Caucasian"), which the court did by order of May 18, 2001. Also during
the May hearing, Elmore’s lawyers returned evidence that had been
entrusted to them for review and testing, including that reported in Octo-
ber 1998 as having been found in Wells’s private office at SLED head-
quarters. The items being resubmitted to the court also included two boxes
of evidence — some not previously disclosed to Elmore — that had been
discovered in the possession of the Greenwood City Police Department
and transferred to the custody of Elmore’s lawyers in late April 1999, fol-
lowing the January 1999 remand by the Supreme Court of South Carolina.
Those boxes contained physical evidence (such as Mrs. Edwards’s bloody
robe, scrapings from beneath her fingernails, and an unknown material
removed from behind her left ear), plus police reports and diagrams, notes
of witness interviews, and three strips of negatives of photographs taken
at the crime scene. One of those photographs showed the bed in Mrs.
Edwards’s bedroom where forty-five of Elmore’s pubic hairs were alleg-
edly discovered. According to Elmore, the photograph specifically showed
"crime scene equipment — cameras, cases, and other processing materials
— all over the top of the bed on which the hair was allegedly found. No
hair was visible in the photograph." Br. of Appellant 7-8. In returning the
photograph and other evidence to the state PCR court, Elmore’s lawyers
indicated that they were doing so as a result of the court’s ruling that there
would be no testing or consideration of evidence that was not the subject
of the remand order — including the evidence discovered post-remand in
the hands of the city police. See J.A. 3689-90.
                      ELMORE v. OZMINT                    115
                             B.

   Following the state PCR court’s issuance of the Second
PCR Order, Elmore revived his appeal in the Supreme Court
of South Carolina, now challenging both the First PCR Order
and the Second PCR Order. On June 10, 2003, the state
supreme court granted a writ of certiorari on every question
presented, including the Sixth and Fourteenth Amendment
claims at issue herein. After briefing and oral argument, how-
ever, the court dismissed the writ as improvidently granted by
order of July 12, 2004. Elmore filed a petition for rehearing
from the denial of certiorari, in which he notified the court
that the State had agreed to conduct additional DNA testing
that could prove exonerating. On September 20, 2004,
Elmore’s rehearing petition was denied.

                             VI.

                             A.

   On September 22, 2004, having exhausted his Sixth and
Fourteenth Amendment claims in the South Carolina courts
and facing an imminent October 15, 2004 execution date,
Elmore initiated these federal habeas corpus proceedings in
the District of South Carolina. On October 5, 2004, the dis-
trict court granted a stay of Elmore’s execution, and, during
a status conference of December 7, 2004, the parties
requested court supervision over the further DNA testing that
they had agreed to conduct by consent. Thereafter, the court
directed delivery of evidence to SLED Agents Ira Jeffcoat and
Kenneth L. Bogan, whom the parties agreed would conduct
the DNA tests (unless more complicated mitochondrial DNA
testing proved necessary). The evidence designated for testing
included the hairs allegedly recovered from Mrs. Edwards’s
bed, scrapings from beneath her fingernails, and blood found
on Elmore’s pants and shoes.

   On July 5, 2005, Elmore filed his 28 U.S.C. § 2254 peti-
tion, in which he asserted not only exhausted claims, but also
116                        ELMORE v. OZMINT
the unexhausted claim that, because he is mentally retarded,
his execution would contravene the Eighth Amendment under
Atkins v. Virginia, 
536 U.S. 304 
(2002). The Supreme Court
of the United States had decided Atkins on June 20, 2002,
while Elmore’s petition for certiorari was pending in the
Supreme Court of South Carolina as part of the state PCR
proceedings; the state supreme court subsequently granted
Elmore the writ of certiorari on June 10, 2003, ten days shy
of the one-year anniversary of the Atkins decision. Notably,
Atkins abrogated South Carolina precedent deeming the exe-
cution of mentally retarded prisoners to be constitutional. See
State v. Jones, 
378 S.E.2d 594
, 597 (S.C. 1989). Moreover, a
South Carolina statute imposes a one-year limitations period
for filing a PCR claim premised on a newly recognized con-
stitutional standard or right. See S.C. Code Ann. § 17-27-
45(B).

   The respondents in these federal habeas proceedings — Jon
Ozmint, Director of the South Carolina Department of Cor-
rections, and Henry McMaster, the State’s Attorney General
(collectively, the "Respondents") — answered Elmore’s
§ 2254 petition and moved for summary judgment on Septem-
ber 6, 2005. The Respondents contended, inter alia, that the
Atkins claim (unlike Elmore’s other claims) was barred for
failure to exhaust state remedies. See 28 U.S.C. § 2254(b)(1)
(providing that a state prisoner’s petition for a writ of habeas
corpus "shall not be granted unless it appears that" the peti-
tioner "has exhausted the remedies available in the courts of
the State"). In his response of September 26, 2005, Elmore
requested the district court, pursuant to Rhines v. Weber, 
544
U.S. 269 
(2005), to stay his petition and hold the federal pro-
ceedings in abeyance while he returned to state court to
exhaust his Atkins claim. The following day, September 27,
2005, Elmore indeed initiated parallel Atkins litigation in the
state PCR court with the filing of his second PCR application.34
  34
    The respondents in the parallel state Atkins litigation were the State of
South Carolina and Ozmint, collectively referred to as the "State" in our
discussion of those PCR proceedings.
                           ELMORE v. OZMINT                            117
   In subsequent memoranda requested by the district court on
the stay issue, the parties outlined their competing positions
on the applicability of Rhines, which instructs that a stay is
appropriate "if the petitioner had good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious,
and there is no indication that the petitioner engaged in inten-
tionally dilatory litigation 
tactics." 544 U.S. at 278
. Naturally,
Elmore claimed eligibility for the Rhines stay and abeyance
procedure. By contrast, the Respondents contended both that
Elmore lacked good cause for his failure to exhaust and that
his Atkins claim was not potentially meritorious, because
Elmore had failed to comply with South Carolina’s statute of
limitations by asserting the claim in state court within one
year of Atkins being decided, and, alternatively, because
Elmore is not in fact mentally retarded. With their Rhines
memorandum, the Respondents filed copies of the State’s
pleadings in the parallel state Atkins litigation, making the
same timeliness and merits contentions.35

   The district court denied Elmore’s stay request by its order
and opinion of April 25, 2006, and refused to alter or amend
that ruling by order and opinion of August 11, 2006.36 In the
latter decision, the court explained that Elmore could not jus-
tify his failure to initiate the state Atkins litigation within
South Carolina’s one-year limitations period and, thus, failed
to satisfy Rhines’s requirement of good cause for the failure
to exhaust.

  In the meantime, on October 27, 2005, the magistrate judge
had issued his report and recommendation, stating that the
  35
      In asserting that Elmore is not mentally retarded, the Respondents
maintained that — under principles of res judicata, issue preclusion, and
collateral estoppel — Elmore was stuck with the 1995 PCR testimony of
his expert, Dr. Jonathan Venn. See supra note 22 (relaying Dr. Venn’s
opinion that "‘Mr. Elmore is not mentally retarded, but he’s just a notch
above being mentally retarded’" (quoting J.A. 2362)).
   36
      The district court’s April 25, 2006 order and opinion is found at J.A.
4671-77, and its August 11, 2006 order and opinion at J.A. 4689-91.
118                         ELMORE v. OZMINT
district court should grant the Respondents’ summary judg-
ment motion and deny Elmore relief on all of his pending
§ 2254 claims — a disposition that the district court imple-
mented by its order and opinion of May 17, 2007, denying
Elmore a writ of habeas corpus, and its order and opinion of
August 3, 2007, refusing to alter or amend the judgment.37
The claims pursued by Elmore in his § 2254 petition, in addi-
tion to the Atkins claim, included the following: the Strickland
and Brady claims premised on the suppression of the unmat-
ched "Item T" Caucasian hair removed from Mrs. Edwards’s
bloody abdomen during her autopsy; the Strickland and
Giglio/Napue claims involving the forty-five pubic hairs
allegedly found on Mrs. Edwards’s bed; the Strickland claim
concerning the medical examiner’s time-of-death opinion; the
Strickland, Brady, and Giglio/Napue claims related to the fin-
gerprint evidence; and the Giglio/Napue claim based on
James Gilliam’s since-recanted account of Elmore’s spontane-
ous jailhouse confession. Those claims comprise the Sixth
Amendment ineffective assistance claim and the Fourteenth
Amendment due process claim now before us.38

   The magistrate judge demonstrated no hesitation in con-
cluding that the state PCR court’s adjudication of Elmore’s
claims passed muster under § 2254, and the district court
largely did the same in its initial order denying the writ, but
for one exception: The district court recognized that the state
PCR court’s finding that Earl Wells did not knowingly sup-
  37
      The magistrate judge’s October 27, 2005 report and recommendation
is found at J.A. 4397-4537, the district court’s May 17, 2007 order and
opinion at J.A. 4692-4762, and its August 3, 2007 order and opinion at
J.A. 4964A-Q.
   38
      Elmore also pursued in the district court, as he does in this appeal, the
Sixth Amendment claim that his 1984 trial was not conducted before an
impartial jury. See supra note 1. Elmore elected to abandon other claims
exhausted and rejected in the South Carolina courts, i.e., the Strickland
and Brady claims concerning the possible culpability of Mrs. Edwards’s
neighbor, Jimmy Holloway, plus the Strickland claims premised on the
blood evidence and the testimony of Gilliam and Dr. Venn.
                          ELMORE v. OZMINT                           119
press Item T was irrelevant under Brady. See Brady v. Mary-
land, 
373 U.S. 83
, 87 (1963) ("[T]he suppression by the
prosecution of evidence favorable to an accused . . . violates
due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of
the prosecution." (emphasis added)). Nevertheless, the district
court agreed with the state PCR court’s conclusion that the
suppression of Item T was immaterial to the 1984 verdict.

   In seeking to alter or amend the judgment, Elmore pointed
out that the parties were awaiting the results of the DNA test-
ing being overseen by the district court, and he provided
notice of a June 13, 2007 decision of the state PCR court
denying without prejudice the State’s motion to dismiss his
parallel state Atkins litigation as time-barred. The district
court was not swayed to disturb its judgment, however,
explaining that Elmore could present any exonerating DNA
test results in a second § 2254 petition, and that the state PCR
court might yet enforce a statute of limitations bar on his
Atkins claim. Thereafter, on October 9, 2007, the district court
granted Elmore the certificate of appealability necessary for
this appeal on issues involving all of his live § 2254 claims.
See 28 U.S.C. § 2253(c)(1) (providing that, "[u]nless a circuit
justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from" "the final order
in a habeas corpus proceeding in which the detention com-
plained of arises out of process issued by a State court").39

                                   B.

   As earlier explained, the first oral argument in this appeal,
conducted on March 21, 2008, primarily focused on the stay
issue, i.e., whether the district court should have stayed its
proceedings and, alternatively, whether we should stay this
appeal pending the exhaustion of Elmore’s Atkins claim in the
  39
    The district court’s October 9, 2007 order granting the certificate of
appealability is found at J.A. 4970.
120                    ELMORE v. OZMINT
South Carolina courts. During the argument, the parties
informed us that the parallel state Atkins litigation was ongo-
ing in the state PCR court, and that a recent examination of
Elmore by the South Carolina Department of Disabilities and
Special Needs — performed at the request of the State — had
confirmed that he is mentally retarded as defined by South
Carolina law. Nonetheless, the Respondents continued to sug-
gest that the Eighth Amendment could not save Elmore from
execution, and that there was no justification for staying these
federal proceedings, because Elmore’s lawyers had inexcus-
ably raised his Atkins claim too late.

   By our order of March 24, 2008, we recognized that, subse-
quent to the district court’s judgment against Elmore, addi-
tional significant factual development had occurred in the
state PCR court concerning his Atkins claim. We also
observed that the state PCR court had taken steps toward an
expeditious disposition of the Atkins claim, which disposition
would likely involve the resolution of novel state law ques-
tions and impact this appeal. In light of the circumstances, and
in the interests of federalism and comity, we stayed the appeal
pending final disposition of the state Atkins litigation.

   Thereafter, by its order of February 1, 2010 (the "Atkins
Order"), the state PCR court ruled that Elmore fits South Car-
olina’s definition of being mentally retarded and, thus, is cate-
gorically excluded by the Eighth Amendment from execution
under Atkins and Franklin v. Maynard, 
588 S.E.2d 604 
(S.C.
2003) (post-Atkins decision of Supreme Court of South Caro-
lina defining mental retardation and establishing procedures
for making mental retardation determinations). Among the
state PCR court’s findings were that Elmore "has significantly
subaverage intellectual functioning." Atkins Order 12. Indeed,
as the court recognized, "all intellectual and academic testing
over the course of [Elmore’s] life" resulted in scores that con-
sistently placed him "within the mental retardation range." 

court observed that "[i]t took [Elmore] five
years to move beyond the first two grade levels," and he "fi-
                       ELMORE v. OZMINT                      121
nally gave up and quit school in the fifth grade at the age of
thirteen, though he did give eighth grade a two week try
before he floundered and dropped out for good at the age of
fifteen." Atkins Order 14 (emphasis omitted). Elmore’s jobs
were always "in the capacity as an unskilled laborer," and he
"had difficulty with practical tasks such as balancing a check-
book," "do[ing] simple conversions such as inches to feet,"
and "us[ing] a phone book." 
Id. at 14-15, 19. 
Elmore "never
lived independently" or "paid bills," though he "would give
money [for household expenses] to his mother and his girl-
friend," with whom he alternately resided. 
Id. at 17 (internal
quotation marks omitted). Elmore’s "on again, off again rela-
tionship" with his girlfriend (Mary Alice Dunlap) "was more
like a mother-child relationship, in the day-to-day aspects of
it." 
Id. at 19. Moreover, 
Elmore deferred to his employers to
set his pay, and failed to safeguard his own health and safety
by, for example, wearing protective gear and taking medica-
tion for hypertension. See 
id. at 17-18 (relating 
Elmore’s
account of being told by one employer, after falling from an
unstable ladder, that "at least Mr. Elmore was at the right
building" (internal quotation marks omitted)). Elmore "is
unable to entertain abstract concepts, no matter how elemen-
tary," and he is no "more skilled at self-care than . . . a seven
year old child who [is] able to dress and clean himself without
help." 
Id. at 16, 20 
(internal quotation marks omitted).

   According to the state PCR court, Elmore "is universally
described as a pleasant person with a compliant manner," but
"his social skills are widely reported to be simple and superfi-
cial." Atkins Order 19. Although Elmore’s "verbal skills are,
[relatively] speaking, [his] strong suit," his "ability to commu-
nicate is not all that it appears to be." 
Id. at 15-16. Rather,
Elmore’s verbal skills are "the product of [a lifelong] experi-
ence coping with his difficulties and learning how to ‘pass’"
— that is, "go[ing] to great lengths to ‘pass’ as normal" in
order to avoid "the stigma of being adjudged mentally
retarded." 
Id. at 16 & 
n.6 (internal quotation marks omitted).
122                     ELMORE v. OZMINT
    In ruling that Elmore is mentally retarded and favorably
disposing of his Atkins claim, the state PCR court did not re-
examine Elmore’s other constitutional claims (including the
Strickland, Brady, and Giglio/Napue claims), nor mention its
earlier denial without prejudice of the State’s motion to dis-
miss the Atkins claim as time-barred. On March 10, 2010, the
Respondents notified us of the state PCR court’s Atkins Order
and advised that it would not be further contested. See Elmore
v. Ozmint, No. 07-14 (4th Cir. Mar. 10, 2010) (Respondents’
status report enclosing copy of Atkins Order). The Respon-
dents explained that, "[a]lthough an appeal may have been
appropriate to address [the state PCR court’s] earlier deferred
conclusions about the applicability of the statute of limitations
. . . , the state has chosen to forego [that issue] at this time in
this case, in light of the court’s [unassailable] mental retarda-
tion findings." 
Id. at 2.

   Accordingly, 
we lifted our stay of this appeal by order of
March 11, 2010. The parties’ subsequent briefs and our Sep-
tember 22, 2010 oral argument focused on the issues remain-
ing before us, including those involving Elmore’s Sixth
Amendment ineffective assistance claim (relying on Strick-
land) and his Fourteenth Amendment due process claim
(invoking Brady and Giglio/Napue).

                               VII.

   At last turning to our assessment of this appeal, we begin
by outlining the applicable standard of review. First of all, we
review de novo the district court’s denial of habeas corpus
relief to Elmore on the basis of the state court record. See
Tucker v. Ozmint, 
350 F.3d 433
, 438 (4th Cir. 2003). In so
doing, however, the Antiterrorism and Effective Death Pen-
alty Act of 1996 ("AEDPA") mandates that we accord defer-
ence to the state court decisions adjudicating Elmore’s claims
on the merits, i.e., the First PCR Order and the Second PCR
Order. See 28 U.S.C. § 2254(d); see also Woodford v. Visci-
otti, 
537 U.S. 19
, 24 (2002) (per curiam) (observing that
                       ELMORE v. OZMINT                     123
§ 2254(d) contains a "highly deferential standard for evaluat-
ing state-court rulings" that "demands that state-court deci-
sions be given the benefit of the doubt" (internal quotation
marks omitted)). Under AEDPA, we may deem Elmore to be
entitled to relief only if the state PCR court’s adjudication of
his claims "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," § 2254(d)(1), or if the adjudication "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," § 2254(d)(2).

   By its plain terms, § 2254(d)(2) limits our review to the
evidence placed before the state PCR court. See Cullen v. Pin-
holster, 
131 S. Ct. 1388
, 1400 n.7 (2011). Section 2254(d)(2)
is one of two AEDPA provisions governing review of state
court factual findings. The other such provision is
§ 2254(e)(1), which provides that "a determination of a fac-
tual issue made by a State court shall be presumed to be cor-
rect," and that the petitioner "shall have the burden of
rebutting the presumption of correctness by clear and con-
vincing evidence." The Supreme Court has not decided
whether § 2254(e)(1) — an "arguably more deferential stan-
dard" than § 2254(d)(2) — "applies in every case" involving
§ 2254(d)(2) review. Wood v. Allen, 
130 S. Ct. 841
, 849
(2010) (explaining that, although the Court had "granted cer-
tiorari to resolve the question of how §§ 2254(d)(2) and (e)(1)
fit together," it was not necessary to reach that issue because
the challenged state court finding was reasonable under
§ 2254(d)(2)). As our Court has interpreted the two provi-
sions, the § 2254(e)(1) standard has a place in § 2254(d)(2)
review: We consider whether the state PCR court based its
decisions "on an objectively unreasonable factual determina-
tion in view of the evidence before it, bearing in mind that
factual determinations by state courts are presumed correct
absent clear and convincing evidence to the contrary." Baum
v. Rushton, 
572 F.3d 198
, 210 (4th Cir. 2009) (internal quota-
124                         ELMORE v. OZMINT
tion marks omitted). We must be "especially" deferential to
the state PCR court’s findings on witness credibility, Sharpe
v. Bell, 
593 F.3d 372
, 378 (4th Cir. 2010), and we will not
overturn the court’s credibility judgments unless its error is
"stark and clear," Cagle v. Branker, 
520 F.3d 320
, 324 (4th
Cir. 2008).

   Like our § 2254(d)(2) review, and in accordance with
recent Supreme Court instructions, our § 2254(d)(1) review is
generally confined to the record that was before the state PCR
court. See 
Cullen, 131 S. Ct. at 1398 
(concluding that,
because the "backward-looking language [of § 2254(d)(1)]
requires an examination of the state-court decision at the time
it was made[,] the record under review is limited to the record
in existence at that same time"). Moreover, "clearly estab-
lished Federal law" under § 2254(d)(1) is the governing legal
principle or principles set forth by the Supreme Court at the
time the state PCR court rendered the relevant decisions. See
Lockyer v. Andrade, 
538 U.S. 63
, 71-72 (2003). Under the
"contrary to" clause of § 2254(d)(1), Elmore may be entitled
to habeas corpus relief if the state PCR court arrived at a con-
clusion opposite to that reached by the Supreme Court on a
question of law, or if the state PCR court decided the case dif-
ferently than the Supreme Court has on a set of materially
indistinguishable facts. See Williams v. Taylor, 
529 U.S. 362
,
413 (2000). By contrast, under the "unreasonable application"
clause, Elmore may merit relief if the state PCR court identi-
fied the correct governing legal principles from the Supreme
Court’s decisions but unreasonably applied those principles to
the facts of Elmore’s case. See id.40
  40
     Even if we conclude under § 2254(d) that the state PCR court erred,
habeas corpus relief can be granted to Elmore only if the error had a "sub-
stantial and injurious effect or influence in determining the jury’s verdict."
Brecht v. Abrahamson, 
507 U.S. 619
, 637 (1993) (internal quotation
marks omitted). Significantly, however, it is unnecessary to conduct a
Brecht harmlessness analysis on a Strickland or Brady claim that already
has withstood the more onerous test for prejudice (Strickland) or material-
ity (Brady). See Kyles v. Whitley, 
514 U.S. 419
, 436 & n.9 (1995).
                           ELMORE v. OZMINT                           125
                                  VIII.

   Despite the highly deferential AEDPA standard, we con-
clude that Elmore is entitled to habeas corpus relief under 28
U.S.C. § 2254 on his Sixth Amendment Strickland claim.
Simply put, the gross failure of Elmore’s 1984 trial lawyers
to investigate the State’s forensic evidence — including the
medical examiner’s time-of-death opinion, the pubic hairs
allegedly recovered from Mrs. Edwards’s bed, the nature of
the "Item T" materials removed from Mrs. Edwards’s bloody
abdomen, and the fingerprint lifted from the blood-smeared
toilet in Mrs. Edwards’s en suite bathroom — had a palpably
adverse effect on the defense.41
  41
     Although we do not resolve Elmore’s Fourteenth Amendment due
process claim, see supra note 1, we recognize that such claim encom-
passes at least one strong contention: that Item T was suppressed by the
State in contravention of Brady. The Respondents have conceded that Item
T was suppressed, in that SLED’s Earl Wells "mistakenly reported" its
contents as being solely blue fibers and then held the Item T slides in his
office for nearly seventeen years. Additionally, the Respondents have
acknowledged that Item T is favorable to Elmore. The Respondents main-
tain, however, that the state PCR court reasonably concluded that Item T
— particularly the unmatched Caucasian hair contained therein — was not
material to Elmore’s 1984 convictions.
   We are not convinced, however, that the state PCR court’s materiality
analysis can withstand even deferential AEDPA review. The court tersely
dismissed Item T’s unmatched Caucasian hair as "[o]ne hair from the vic-
tim’s body from the bedroom floor that could have come from various
sources." Second PCR Order 5. In so doing, the court did not, for example,
confront evidence undermining the theory that Mrs. Edwards could have
easily picked up a random hair from her bedroom floor, see, e.g., J.A. 83
(1982 trial testimony of SLED’s Frank Dan DeFreese that Mrs. Edwards,
who resided alone, "was a very meticulous housekeeper"), nor did the
court consider how the misidentification of Item T’s contents might have
cast doubt on the competence and honesty of Wells and his fellow SLED
agents.
   Elmore’s other Fourteenth Amendment contentions, though hardly friv-
olous, run headlong into the state PCR court’s credibility findings. That
is, invoking Giglio and Napue, Elmore asserts that the State knowingly
126                        ELMORE v. OZMINT
                                    A.

   In ruling in Elmore’s favor on his Strickland claim, we
assume that Cullen v. Pinholster precludes our consideration
of evidence developed subsequent to the First PCR Order and
the Second PCR Order, including later-developed evidence
that the parties have urged us to take into account. See 131 S.
Ct. 1388, 1398, 1400 n.7 (2011) (recognizing that 28 U.S.C.
§ 2254(d)(1) and (2) review is limited to the existing state
court record). But see, e.g., Hale v. Davis, No. 07-12397,
2011 WL 3163375
, at *8 (E.D. Mich. July 27, 2011) (observ-
ing that "the full implications of Cullen are unclear").42

   For his part, Elmore contends that we should view his
Strickland and other pending claims through the lens of the
state PCR court’s mental retardation finding, even though the
court considered Elmore’s mental retardation solely in the
context of his later-asserted Eighth Amendment Atkins claim.
For example, Elmore maintains that, "[e]ven if counsel could
ground their inaction on communications from the client in
the ordinary case, . . . such a justification evaporates when the
defendant is mentally retarded." Br. of Appellant 56. "Thus,"
according to Elmore, "not only can [his] communications not
be invoked to excuse counsel’s anemic advocacy, the fact that
counsel relied at all on the communications of a retarded cli-
ent actually provides yet another affirmative reason there can
be no confidence in the reliability of [his] conviction[s]." 
Id.
at 57-58.

presented 
false testimony concerning the pubic hairs, the toilet print, and
his purported jailhouse confession to fellow inmate James Gilliam. The
State’s witnesses flatly denied any wrongdoing, however, and it would be
difficult to say that the state PCR court acted unreasonably or committed
stark and clear error in finding those denials credible.
   42
      Because Cullen was decided after the last round of briefing and oral
argument herein, the parties have not addressed its import.
                        ELMORE v. OZMINT                        127
   Meanwhile, the Respondents have emphasized the results
of the additional DNA testing that had been agreed to during
the state PCR proceedings and overseen by the district court
— results that neither the South Carolina courts nor the dis-
trict court awaited. According to the Respondents, the DNA
test results indicate that "a significant number of hairs" alleg-
edly found on Mrs. Edwards’s bed fully or partially match
Elmore, and "blood stained cuttings from" Elmore’s pants and
shoe fully or partially match Mrs. Edwards. Br. of Appellees
1 (citing J.A. 4958-59).43 The Respondents assert that,
although the DNA testing "was neither done nor available at
the 1982, 1984 or 1987 trials nor the initial PCR proceed-
ings[,] it conclusively confirms and corroborates the state’s
prosecution theory and evidence of Mr. Elmore’s guilt and
involvement in Dorothy Edwards’ brutal death." 
Id.

    Elmore, who had 
previously conceded that the hairs are his,
points out that the DNA test results are entirely consistent
with his long-standing position that the SLED agents lied
about finding the hairs on Mrs. Edwards’s bed and planted the
blood on his pants and shoe. See Br. of Appellant 32 n.7 ("As
it is Elmore’s contention that his pubic hairs were taken from
him and immediately placed in evidence as if they had been
recovered from the [crime] scene, it should come as no sur-
prise that DNA testing confirms that the hairs in the bag the
State claims was recovered from the crime scene are, in fact,
Elmore’s."); 
id. at 23 ("Not 
surprisingly, given the inconsis-
tencies of the spots [of blood] with the nature of the crime
scene, the highly suspicious chain of custody on [the pants
and shoe], and the highly irregular manner in which the other
evidence in this case was collected, the blood on the clothing
was found to contain the victim’s DNA."). Elmore also high-
lights that "[t]he validity of the DNA testing has never been
subjected to the adversarial process." Reply Br. of Appellant
1. "In sum," according to Elmore, "the DNA evidence
  43
    The DNA testing of scrapings from beneath Mrs. Edwards’s finger-
nails apparently resulted in a match to Mrs. Edwards. See J.A. 4959.
128                    ELMORE v. OZMINT
Respondents attempt to now interject into this case does noth-
ing to offset the unreliability of the forensic evidence" used
to obtain Elmore’s 1984 convictions. 
Id. at 3.

   Even 
if Cullen left us free to consider the mental retarda-
tion finding and the DNA test results, none of that evidence
would alter our view of Elmore’s Strickland claim. The 1984
defense team’s failure to investigate the State’s forensic evi-
dence has not been (and cannot be) blamed on Elmore him-
self, see infra note 48, and those lawyers’ constitutionally
deficient performance is patent even without taking Elmore’s
mental retardation into account. Moreover, the recent DNA
test results, heralded by the State as definitive proof of
Elmore’s guilt despite the lack of any court determination of
their reliability, are consistent with Elmore’s position that the
SLED agents falsely testified about finding his pubic hairs on
Mrs. Edwards’s bed and planted Mrs. Edwards’s blood on his
clothing. Thus, we are content to look to the record solely as
it existed at the time of the First PCR Order and the Second
PCR Order.

                               B.

   The record before us reflects that Elmore’s 1984 trial was
essentially a replay of his 1982 trial. In the words of the state
PCR court, the State presented "overwhelming evidence . . .
that solely pointed to the guilt of Edward Elmore," leaving the
jury no choice but "to convict." First PCR Order 119-20. The
State’s evidence primarily consisted of the following: Elmore
knew Mrs. Edwards, having been hired by her on several
occasions, the latest being December 30, 1981, to wash the
windows and clean the gutters of her home; the crime scene
suggested that Mrs. Edwards was murdered on the night of
Saturday, January 16, 1982, a time of death that was deemed
feasible by the medical examiner; Elmore lacked a corrobo-
rated alibi for more than two hours that Saturday night;
Elmore’s thumbprint was found on the exterior frame of the
back door into Mrs. Edwards’s house, apparently where the
                        ELMORE v. OZMINT                       129
murderer entered the premises; forty-five pubic hairs consis-
tent with Elmore were recovered from Mrs. Edwards’s bed;
Type A blood (the type Mrs. Edwards shared with about 40-
45% of the population) was found on Elmore’s pants and
shoe; Elmore evinced a lack of credibility and a guilty con-
science by, inter alia, initially denying at the time of his arrest
that he knew Mrs. Edwards and thereafter telling the police
that, if he killed Mrs. Edwards, he did not remember doing so;
and Elmore spontaneously confessed to fellow Greenwood
jail inmate James Gilliam that he had raped and murdered
Mrs. Edwards and eradicated physical evidence of his crimes.

   Elmore proclaimed his innocence to his lawyers for the
1982 and 1984 trials, Geddes D. Anderson and John F. Beas-
ley, who therefore did not believe Gilliam’s account of
Elmore’s jailhouse confession and endeavored to discredit
Gilliam. Nevertheless, Anderson and Beasley did not other-
wise mistrust the State’s case against Elmore. See, e.g., J.A.
2481 (PCR testimony of lead counsel Anderson allowing that
the State had "ample evidence" against Elmore). The bulk of
Anderson’s trial preparation occurred during the ten-day peri-
ods prior to Elmore’s 1982 and 1984 trials, when Anderson
was also working on other cases. Anderson interviewed
Elmore, Elmore’s mother, and perhaps Elmore’s former girl-
friend and other witnesses, but definitely did not interview the
person who reportedly found the body of Mrs. Edwards, her
neighbor Jimmy Holloway.

   The defense team conducted no independent analyses of the
State’s forensic evidence. Anderson waited until the eve of
the 1982 trial to look at any of the physical evidence, and then
— inexplicably — asked to see only the exhibits that the State
intended to introduce. He did not suspect any irregularities in
the evidence’s chain of custody and thus stipulated thereto.
Both Anderson and Beasley admitted to being lulled into
inaction by the belief that the police were above reproach. See
J.A. 2424 (Anderson’s PCR testimony that "I think I probably
just stood by my opinion that I have respect for the SLED
130                    ELMORE v. OZMINT
team, and they’re the best we have in South Carolina, and I
assumed they were not going to contaminate the evidence");
id. at 2581 (Beasley’s 
PCR testimony that "I had full confi-
dence in the law enforcement officers. I knew them all. I had
never had any occasion where any law official ever tried to
pull anything over on me, and I had no reason to suspect any-
thing being wrong"). At most, the defense team gave fleeting
thought to hiring experts to examine the evidence. Anderson
blamed scarce state resources, but his testimony indicated that
he and Beasley never isolated evidence deserving further
examination, identified appropriate experts and ascertained
their fees, or inquired about state and other possible sources
of funding.

   Once Elmore’s 1982 convictions were reversed by the state
supreme court, Anderson and Beasley had a rare second
chance to contest the State’s case — along with near-perfect
knowledge of what that case would be. Yet, as Anderson con-
ceded, he looked no further at the physical evidence in prepa-
ration for the 1984 trial and again blindly stipulated to its
admissibility. Anderson also acknowledged that he saw the
guilt phase as a lost cause. Focusing instead on the expected
sentencing phase, Anderson conducted just one new investi-
gation, into the subject of Elmore’s adaptability to prison life.

   During the guilt phase of the 1984 trial, the defense team’s
cross-examination of the State’s witnesses was largely per-
functory. After medical examiner Dr. Sandra Conradi identi-
fied a sixty-hour window in which Mrs. Edwards could have
died (based on the autopsy), but pinpointed a likely Saturday
night death (premised on non-scientific circumstantial evi-
dence), the defense merely elicited from Dr. Conradi that the
scientific indicators of time of death "are very variable." J.A.
653. The defense got SLED’s Frank Dan DeFreese to agree
that Elmore’s thumbprint, though "fresh"-appearing, "could
have been [on the exterior door frame] a month." 
Id. at 579.
The 
cross-examination of SLED’s Earl Wells clarified only
that the "high degree of probability" of a match between
                      ELMORE v. OZMINT                    131
Elmore and the forty-five pubic hairs allegedly found on Mrs.
Edwards’s bed was something short of "100 percent." 
Id. at
624. And, 
the defense led SLED’s John C. Barron to concede
that it was impossible to determine the age of the blood on
Elmore’s clothing. There was no cross-examination of Hol-
loway, who testified to finding Mrs. Edwards’s body and dis-
cerning much of the circumstantial evidence of a Saturday
night death, or of SLED’s Ira Byrd Parnell, Jr., who claimed
that he recovered the incriminating hairs from Mrs. Edwards’s
bed.

   In their closing arguments on Elmore’s behalf, his lawyers
underscored that there was a possibility, however slim, that
the forensic evidence was incorrectly implicating Elmore.
See, e.g., J.A. 949 (Anderson’s argument that "[t]here was
never any expert testimony from individuals from SLED that
pinpointed Edward Lee Elmore as the wrongdoer in this case.
. . . The most I heard was high probability, a high degree of
probability"). The lawyers also pointed out a few gaps in the
State’s case, including the lack of inculpatory evidence in
Elmore’s car; the existence of evidence contradicting the the-
ory of his guilty conscience (e.g., his entirely voluntary
encounter with the police just prior to his arrest); and the
inconsistency between Elmore’s alleged eradication of evi-
dence inside the Edwards home, but failure to destroy evi-
dence outside the home (i.e., his thumbprint on the exterior
door frame and the unwashed clothing left at his own resi-
dence).

   Ultimately, however, Anderson conceded that he was ill-
equipped to challenge the police investigators. See J.A. 955
(Anderson’s admission to the jury that, "[m]an, they’re
trained. They’re ready for me. They’ve been here every day.
They’re ready for me. Loaded for bear. I stayed away from
them. I can’t cross-examine them. Nobody can"). Beasley
effectively abandoned his client and actually vouched for
those investigators, advising the jury: "I think at SLED they
are recognized as being one of the best departments or proba-
132                    ELMORE v. OZMINT
bly as good as the F.B.I. They have a very fine department,
and they have very good personnel, and they are experts at
everything they do." 
Id. at 913. Not 
surprisingly, it merely
took the jury about two hours to agree on the guilty verdict.
After all, as the state PCR court recognized, conviction was
the jury’s only rational option in view of the State’s evidence
and Elmore’s ineffectual defense.

   Of course, it is now clear from the PCR proceedings that
an investigation into the State’s evidence would have exposed
a multitude of questions about its legitimacy and reliability.
For example, Elmore presented behavioral profiling evidence
tending both to exculpate him and to cast suspicion on Hol-
loway (and, by extension, the circumstantial evidence of a
Saturday night death). The medical examiner testimony of Dr.
Conradi and Elmore’s expert Dr. Jonathan Arden revealed
that, within the scientific time-of-death range identified by Dr.
Conradi at trial, a Sunday afternoon death was much more
likely than a Saturday night one. Those medical examiners
disagreed only on the degree of probability of a Saturday
night death. Dr. Arden deemed it "extraordinarily unlikely
and improbable really in the extreme," while Dr. Conradi sug-
gested a higher probability but conceded that Saturday night
was close to the "outside limit" of the possible range. See J.A.
2252, 2721.

   Elmore also presented PCR evidence calling into question
the SLED agents’ previously unchallenged account of recov-
ering Elmore’s forty-five pubic hairs from Mrs. Edwards’s
bed. That is, the agents failed to take a single photograph of
the hairs on the bed, to collect the bedcovers and sheets for
further forensic analysis, or to package the hairs like other
physical evidence taken from the crime scene; despite the
State’s theory that an already-bloodied Mrs. Edwards pulled
the hairs from Elmore as he raped her on the bed, there was
no blood or semen on the bedcovers or sheets; the number of
Elmore’s pubic hairs was exceptionally large; Elmore sus-
tained no apparent groin injury or bruising; and none of
                       ELMORE v. OZMINT                     133
Elmore’s pubic hairs were found on Mrs. Edwards’s body or
elsewhere in the house. Meanwhile, Elmore demonstrated that
the Item T Caucasian hairs removed from Mrs. Edwards’s
bloody abdomen during her autopsy — including one hair that
DNA testing has confirmed was not hers — were falsely
reported by SLED as being blue fibers and then concealed in
a SLED office for nearly seventeen years. Similarly, Elmore
established that the SLED team misreported at least one fin-
gerprint as being unidentifiable, and may have so misreported
a print lifted from the blood-smeared toilet in Mrs. Edwards’s
en suite bathroom. Additionally, Elmore proffered evidence
that the scant amount of blood on his clothing was inconsis-
tent with the gruesome crime scene, and he produced a SLED
laboratory record suggesting that his clothing was exposed to
pre-analysis tampering.

   In the face of the foregoing record, the state PCR court
rejected Elmore’s multi-faceted Sixth Amendment ineffective
assistance of counsel claim, which was premised on the lack
of investigation into the State’s forensic evidence, along with
other errors by his trial lawyers. Elmore has since more nar-
rowly formulated his ineffective assistance claim to focus
solely on the lawyers’ failure to investigate the forensic evi-
dence, particularly Dr. Conradi’s time-of-death opinion, the
forty-five pubic hairs allegedly found on Mrs. Edwards’s bed,
the contents of Item T, and the fingerprints lifted from the
crime scene.

                              C.

   The "clearly established Federal law" governing the state
PCR court’s assessment of Elmore’s Sixth Amendment inef-
fective assistance claim was Strickland v. Washington, 
466
U.S. 668 
(1984). Importantly, the state PCR court recognized
the controlling force of Strickland on Elmore’s ineffective
assistance claim, explaining that "the [Strickland] court estab-
lished as a constitutional standard a two-prong test to deter-
mine ineffectiveness; was counsel’s performance deficient;
134                        ELMORE v. OZMINT
and second, if so, whether there is a reasonable probability
that but for counsel’s deficient performance, the result of the
proceeding would have been different." First PCR Order 5.

   Our review of the First PCR Order and the Second PCR
Order, however, leads to the ineluctable conclusion that the
state PCR court both unreasonably applied and acted contrary
to Strickland in resolving Elmore’s ineffective assistance
claim. That is, although the state PCR court correctly identi-
fied certain Strickland principles, the court unreasonably
applied those tenets to the facts before it. See Williams v. Tay-
lor, 
529 U.S. 362
, 413 (2000) (recognizing that, under
§ 2254(d)(1)’s "unreasonable application" clause, "a federal
habeas court may grant the writ if the state court identifies the
correct governing legal principle from this Court’s decisions
but unreasonably applies that principle to the facts of the pris-
oner’s case"). The state PCR court defied other Strickland
principles — both acknowledged and unacknowledged by the
court — freeing itself to test Elmore’s ineffective assistance
claim under a legal framework in many ways contrary to that
mandated by Strickland. See 
Williams, 529 U.S. at 413
(observing that, under the "contrary to" clause of
§ 2254(d)(1), "a federal habeas court may grant the writ if,"
inter alia, "the state court arrives at a conclusion opposite to
that reached by this Court on a question of law"). At bottom,
the state PCR court’s adjudication of Elmore’s ineffective
assistance claim "was so lacking in justification that there was
. . . error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement." See
Harrington v. Richter, 
131 S. Ct. 770
, 786-87 (2011).44
   44
      To illustrate the proper application of Strickland principles, we cite
herein to decisions of the Supreme Court and our Court rendered in Strick-
land’s wake, including some issued after the First PCR Order and the Sec-
ond PCR Order. See Wiggins v. Smith, 
539 U.S. 510
, 522 (2003)
(recognizing that a federal habeas court may rely on decisions, unseen by
the state court under review, "appl[ying] the same ‘clearly established’
precedent of Strickland"). Nonetheless, we recognize that "‘the Strickland
test of necessity requires a case-by-case examination of the evidence’" and
look to other precedents only "for guidance." 
Cullen, 131 S. Ct. at 1407
n.17 (quoting 
Williams, 529 U.S. at 391
).
                       ELMORE v. OZMINT                       135
                                1.

   In Strickland, the Supreme Court instructed that "[t]he
benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper func-
tioning of the adversarial process that the trial cannot be relied
on as having produced a just result." 
Strickland, 466 U.S. at
686
. The Court also announced its two-prong test to analyze
ineffective assistance claims, encompassing performance and
prejudice. See 
id. at 687.

   To 
satisfy the performance prong of Strickland, "the defen-
dant must show that counsel’s representation fell below an
objective standard of 
reasonableness." 466 U.S. at 688
. In so
doing, the defendant "must identify the acts or omissions of
counsel that are alleged not to have been the result of reason-
able professional judgment." 
Id. at 690. For 
its part, the court
deciding the "ineffectiveness claim must judge the reason-
ableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct."
Id. That is, the 
court must "determine whether, in light of all
the circumstances, the identified acts or omissions were out-
side the wide range of professionally competent assistance."
Id. "In making that 
determination, the court should keep in
mind that counsel’s function, as elaborated in prevailing pro-
fessional norms, is to make the adversarial testing process
work in the particular case." 
Id. Nevertheless, the court 
also
"should recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant deci-
sions in the exercise of reasonable professional judgment." 
Id.

   Significantly, the Strickland 
Court recognized that "counsel
has a duty to make reasonable investigations or to make a rea-
sonable decision that makes particular investigations unneces-
sary." 466 U.S. at 691
. "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." 
Id. "[S]trategic
136                     ELMORE 
v. OZMINT
choices made after less than complete investigation are rea-
sonable precisely to the extent that reasonable professional
judgments support the limitations on investigation," but "stra-
tegic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallenge-
able." 
Id. at 690-91.

  Under 
Strickland, "[t]he reasonableness of counsel’s
actions may be determined or substantially influenced by the
defendant’s own statements or 
actions." 466 U.S. at 691
. With
particular respect to the duty to investigate,

      what investigation decisions are reasonable depends
      critically on [information supplied by the defendant].
      For example, when the facts that support a certain
      potential line of defense are generally known to
      counsel because of what the defendant has said, the
      need for further investigation may be considerably
      diminished or eliminated altogether. And when a
      defendant has given counsel reason to believe that
      pursuing certain investigations would be fruitless or
      even harmful, counsel’s failure to pursue those
      investigations may not later be challenged as unrea-
      sonable.

Id. Thus, "inquiry into 
counsel’s conversations with the
defendant may be critical to a proper assessment of counsel’s
investigation decisions, just as it may be critical to a proper
assessment of counsel’s other litigation decisions." 
Id.

   Turning to Strickland’s 
prejudice prong, "[t]he defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been 
different." 466 U.S. at 694
. As defined by
the Court, "[a] reasonable probability is a probability suffi-
cient to undermine confidence in the outcome." 
Id. "When a
defendant 
challenges a conviction, the question is whether
there is a reasonable probability that, absent [counsel’s]
                       ELMORE v. OZMINT                      137
errors, the factfinder would have had a reasonable doubt
respecting guilt." 
Id. at 695. Making 
this determination
requires the court deciding the ineffectiveness claim to

    consider the totality of the evidence before the judge
    or jury. Some of the factual findings will have been
    unaffected by the errors, and factual findings that
    were affected will have been affected in different
    ways. Some errors will have had a pervasive effect
    on the inferences to be drawn from the evidence,
    altering the entire evidentiary picture, and some will
    have had an isolated, trivial effect. Moreover, a ver-
    dict or conclusion only weakly supported by the
    record is more likely to have been affected by errors
    than one with overwhelming record support.

Id. at 695-96. In 
sum, "[t]aking the unaffected findings as a
given, and taking due account of the effect of the errors on the
remaining findings, a court making the prejudice inquiry must
ask if the defendant has met the burden of showing that the
decision reached would reasonably likely have been different
absent the errors." 
Id. at 696.

                               2.
                               a.

                               i.

   Specific to Strickland’s performance prong, the state PCR
court recognized the Strickland principle that "counsel has a
duty to make reasonable investigations or to make a reason-
able decision that makes particular investigations unneces-
sary." 466 U.S. at 691
; see First PCR Order 149 ("‘[T]he
Sixth Amendment imposes on counsel a duty to investigate,
because reasonably effective assistance must be based on pro-
fessional decisions and informed legal choices can be made
only after investigation of options.’" (quoting Strickland, 466
138                     ELMORE v. OZMINT
U.S. at 680 (discussing Eleventh Circuit’s Strickland decision
then before it))). Furthermore, the state PCR court empha-
sized its Strickland obligation to "‘judge the reasonableness of
counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.’" First PCR
Order 147 (emphasis in original) (quoting 
Strickland, 466
U.S. at 690
). In that regard, the state PCR court cautioned:

      When the court considers [Strickland’s performance]
      prong, it must do so without falling into the trap of
      considering the actions only in hindsight. Whether
      counsel made an error is a question which can be
      answered only viewing his actions or decisions in the
      light of all surrounding circumstances at the time the
      decision was made, not in the artificial light of hind-
      sight.

Id.; accord Lockhart v. Fretwell, 
506 U.S. 364
, 372 (1993)
(explaining that Strickland "adopted the rule of contemporary
assessment of counsel’s conduct").

   Nevertheless, with little discussion of facts relevant to the
proper contemporary assessment of the conduct of Elmore’s
trial lawyers, the state PCR court found that their failure to
investigate the State’s forensic evidence constituted objec-
tively reasonable attorney performance. Most pertinently, the
court recited lawyer Anderson’s testimony that "‘I think I
probably stood by my opinion that I have respect for the
SLED team, . . . they’re the best we have in South Carolina,
and I assumed they were not going to contaminate the evi-
dence.’" First PCR Order 28 (alteration in original) (citation
omitted). In so doing, the court advanced the notion that no
investigation of the forensic evidence was necessary, because
the defense lawyers reasonably trusted in not only the integ-
rity, but the infallibility, of the police.

  As a matter of logical consistency, such notion conflicts
with the state PCR court’s own observation (made in the
                       ELMORE v. OZMINT                       139
course of chastising Elmore for asserting his fingerprint-
related claims) that "experts may disagree as to results." First
PCR Order 78. Much more significantly, such notion is
abhorrent to Strickland, which was designed to protect the
Sixth Amendment right to "a reliable adversarial testing pro-
cess." 
See 466 U.S. at 688
; see also Evitts v. Lucey, 
469 U.S.
387
, 395 (1985) ("Because the right to counsel is so funda-
mental to a fair trial, the Constitution cannot tolerate trials in
which counsel, though present in name, is unable to assist the
defendant to obtain a fair decision on the merits."); Nix v. Wil-
liams, 
467 U.S. 431
, 453 (1984) (Stevens, J., concurring in
the judgment) ("The Sixth Amendment guarantees that the
conviction of the accused will be the product of an adversarial
process, rather than the ex parte investigation and determina-
tion by the prosecutor."); United States v. Cronic, 
466 U.S.
648
, 656 (1984) ("The right to the effective assistance of
counsel is thus the right of the accused to require the prosecu-
tion’s case to survive the crucible of meaningful adversarial
testing."). A healthy skepticism of authority, while generally
advisable, is an absolute necessity for a lawyer representing
a client charged with capital murder. After all, the custodians
of authority in our democracy are ordinary people with imper-
fect skills and human motivations. The duty of the defense
lawyer "is to make the adversarial testing process work in the
particular case," 
Strickland, 466 U.S. at 690 
— an obligation
that cannot be shirked because of the lawyer’s unquestioning
confidence in the prosecution.

   To be sure, it was thus an unreasonable application of
Strickland to rule that the failure of Elmore’s lawyers to
investigate the State’s forensic evidence was justified by their
faith in the integrity and infallibility of the police. Indeed —
even engaging in a post-AEDPA "doubly deferential" review
of attorney conduct under Strickland’s performance prong,
see 
Cullen, 131 S. Ct. at 1403 
(recognizing that federal habeas
courts must "take a highly deferential look at counsel’s per-
formance through the deferential lens of § 2254(d)" (internal
quotation marks omitted)) — the Supreme Court has found
140                       ELMORE v. OZMINT
deficient performance premised on a failure to investigate in
circumstances that were no more egregious than those present
here. See Rompilla v. Beard, 
545 U.S. 374
, 383-90 (2005);
Wiggins v. Smith, 
539 U.S. 510
, 519-34 (2003).45

   Of particular relevance, in Rompilla, the Court concluded
that the state habeas courts reached "an objectively unreason-
able conclusion" in ruling "that defense counsel’s efforts to
find mitigating evidence by other means excused them from
looking at the prior conviction 
file." 545 U.S. at 388-89
. The
record reflected that — although Rompilla’s lawyers made "a
number of efforts" to find mitigating evidence, "including
interviews with Rompilla and some members of his family,
and examinations of reports by three mental health experts"
— the lawyers did not examine Rompilla’s readily available
prior conviction file despite knowing the prosecution would
use it in aggravation. 
Id. at 381, 383. 
In expounding on why
the lawyers’ deficiency was "clear" and "obvious," 
id. at 383,
the 
Court observed:

       It flouts prudence to deny that a defense lawyer
       should try to look at a file he knows the prosecution
       will cull for aggravating evidence, let alone when the
       file is sitting in the trial courthouse, open for the ask-
       ing. No reasonable lawyer would forgo examination
       of the file thinking he could do as well by asking the
       defendant or family relations whether they recalled
       anything helpful or damaging in the prior victim’s
       testimony. Nor would a reasonable lawyer compare
       possible searches for school reports, juvenile
       records, and evidence of drinking habits to the
       opportunity to take a look at a file disclosing what
       the prosecutor knows and even plans to read from in
       his case. Questioning a few more family members
       and searching for old records can promise less than
  45
    AEDPA deference was applied in the Rompilla and Wiggins
performance-prong assessments, but not in their prejudice-prong analyses.
                              ELMORE v. OZMINT                                141
        looking for a needle in a haystack, when a lawyer
        truly has reason to doubt there is any needle there.
        But looking at a file the prosecution says it will use
        is a sure bet: whatever may be in that file is going
        to tell defense counsel something about what the
        prosecution can produce.

Id. at 389 (citation 
omitted). The Court summarized that "[i]t
is owing to these circumstances that the state courts were
objectively unreasonable in concluding that counsel could
reasonably decline to make any effort to review the file." 
Id.
at 390.46

  Similarly 
(albeit prior to AEDPA), in Kimmelman v. Morri-
son, 
477 U.S. 365 
(1986), the Supreme Court deemed trial
counsel’s lack of investigation to be deficient under Strick-
land’s performance prong. The Kimmelman defendant (Morri-
  46
    The Rompilla Court recognized that "[t]he notion that defense counsel
must obtain information that the State has and will use against the defen-
dant is not simply a matter of common 
sense." 545 U.S. at 387
. Rather,
the Court explained,
       the American Bar Association Standards for Criminal Justice in
       circulation at the time of Rompilla’s trial describes the obligation
       in terms no one could misunderstand in the circumstances of a
       case like this one:
           "It is the duty of the lawyer to conduct a prompt investiga-
           tion of the circumstances of the case and to explore all ave-
           nues leading to facts relevant to the merits of the case and
           the penalty in the event of conviction. The investigation
           should always include efforts to secure information in the
           possession of the prosecution and law enforcement authori-
           ties. The duty to investigate exists regardless of the
           accused’s admissions or statements to the lawyer of facts
           constituting guilt or the accused’s stated desire to plead
           guilty."
Id. (quoting 1 ABA 
Standards for Criminal Justice 4-4.1 (2d ed. 1982
Supp.)). The Court recognized that those Standards, which existed at the
time of Elmore’s trials, may be used "as guides to determining what is rea-
sonable." 
Id. (internal quotation marks 
omitted).
142                     ELMORE v. OZMINT
son) was charged with rape, and his lawyer had neglected to
file a timely motion to suppress an incriminating bedsheet
seized without a search warrant. 
See 477 U.S. at 368-69
. The
trial record revealed

      that Morrison’s attorney failed to file a timely sup-
      pression motion, not due to strategic considerations,
      but because, until the first day of trial, he was
      unaware of the search and of the State’s intention to
      introduce the bedsheet into evidence. Counsel was
      unapprised of the search and seizure because he had
      conducted no pretrial discovery. Counsel’s failure to
      request discovery, again, was not based on "strat-
      egy," but on counsel’s mistaken beliefs that the State
      was obliged to take the initiative and turn over all of
      its inculpatory evidence to the defense and that the
      victim’s preferences would determine whether the
      State proceeded to trial after an indictment had been
      returned.

Id. at 385. Despite 
"applying a heavy measure of deference to
his judgment," the Court found "counsel’s decision unreason-
able, that is, contrary to prevailing professional norms." 
Id.
(internal quotation marks 
omitted); see also 
id. at 394 (Pow-
ell, J., concurring in the judgment) ("Petitioners contend that
trial counsel’s errors were not egregious enough to satisfy Str-
ickland’s performance prong. . . . The Court correctly finds
that [Petitioners’ argument is] mistaken.").

   The Kimmelman Court was convinced of deficient perfor-
mance in that Morrison’s "lawyer neither investigated, nor
made a reasonable decision not to investigate, the State’s case
through 
discovery." 477 U.S. at 385
. According to the Court,
"[s]uch a complete lack of pretrial preparation puts at risk
both the defendant’s right to an ‘ample opportunity to meet
the case of the prosecution’ and the reliability of the adver-
sarial testing process." 
Id. (quoting Strickland, 466 
U.S. at
685). Therefore, not even "defense counsel’s vigorous cross-
                       ELMORE v. OZMINT                          143
examination, attempts to discredit witnesses, and effort to
establish a different version of the facts" during trial could
"lift counsel’s performance back into the realm of profes-
sional responsibility." 
Id. at 385-86. As 
the Court explained,

    [i]n this case, . . . we deal with a total failure to con-
    duct pre-trial discovery, and one as to which counsel
    offered only implausible explanations. Counsel’s
    performance at trial, while generally creditable
    enough, suggests no better explanation for this
    apparent and pervasive failure to "make reasonable
    investigations or to make a reasonable decision that
    makes particular investigations unnecessary."

Id. at 386 (quoting 
Strickland, 466 U.S. at 691
).

   Lamentably akin to defense counsel in Kimmelman and
Rompilla, Elmore’s lawyers disregarded their professional
obligation to investigate critical prosecution evidence, thereby
engendering "a breakdown in the adversarial process that our
system counts on to produce just results." See 
Strickland, 466
U.S. at 696
. As in Kimmelman and Rompilla, the failure to
investigate cannot be excused by the lawyers’ other efforts
(which, in any event, were meager and superficial). Indeed,
the need for scrutiny of the forensic evidence was indisputa-
ble: The case was a real "who-done-it" in which Elmore was
asserting his innocence, the State’s case against him largely
hinged on the forensic evidence, and, at least as far as
Elmore’s lawyers knew, the prosecutor was maintaining an
open file. Yet Elmore’s lawyers conducted no more examina-
tion of the forensic evidence than to ask a day or two before
the 1982 trial to see the exhibits that the State intended to
introduce. The lawyers did not look behind the State’s pro-
posed exhibits, did not investigate the other (possibly excul-
patory) evidence that the State was bypassing, and did not
conduct an independent analysis of a single item of forensic
evidence in the State’s arsenal.
144                        ELMORE v. OZMINT
   As obvious as the need for investigation was prior to the
1982 trial, it was more so ahead of the 1984 retrial. Rather
than capitalize on their comprehensive knowledge of the
State’s case, however, Elmore’s lawyers opted for capitula-
tion. So, for example, in the face of Elmore’s corroborated
alibis for Sunday and Monday, his lawyers "condescended
[sic]" to the State’s theory — and the medical examiner’s
opinion — that Mrs. Edwards was murdered on Saturday
night. See J.A. 2416-17 (PCR testimony of lawyer Anderson
admitting same). Despite knowing that the pubic hairs alleg-
edly found on Mrs. Edwards’s bed were by far the State’s
most damning physical evidence, Elmore’s lawyers did noth-
ing to probe the circumstances of the hairs’ discovery. The
lawyers did not even inspect readily accessible SLED records
that would have suggested the possible benefit of further
inquiry into, inter alia, the Item T materials that were removed
from Mrs. Edwards’s bloody abdomen (were they hairs or
fibers?), and the fingerprint lifted from the blood-smeared toi-
let in Mrs. Edwards’s en suite bathroom (was it really uniden-
tifiable?). To paraphrase Rompilla, "[i]t flouts prudence to
deny that a defense lawyer should try to look at [forensic evi-
dence] he knows the prosecution will cull for [inculpatory]
evidence, let alone when the [forensic evidence] is sitting in
the [prosecutor’s office], open for the asking." 
See 545 U.S.
at 389.47
   47
      Because Elmore has focused his ineffective assistance claim on the
time-of-death opinion, the pubic hairs, Item T, and the toilet print, we do
the same herein. Nevertheless, the record raises additional concerns with
the State’s forensic evidence that a proper adversarial investigation could
have uncovered. Such concerns relate to, inter alia, Dr. Jonathan Arden’s
opinion that Mrs. Edwards’s vaginal injuries were caused postmortem by
the bottle tongs, the opinions of other experts that the scant amount of
blood found on Elmore’s clothing was inconsistent with the gruesome
crime scene, the SLED record suggesting that Elmore’s clothing was
exposed to pre-blood analysis tampering, and the expert opinion that the
placement of Elmore’s thumbprint on the exterior frame of the back door
into the Edwards home (upside-down and wrapped around the frame) was
consistent with performing chores and inconsistent with knocking at the
door and waiting for an answer.
                        ELMORE v. OZMINT                       145
   Notably, the facts of this case distinguish it from Harring-
ton v. Richter, in which the Supreme Court recently rebuffed
the theory that, "because Richter’s attorney had not consulted
forensic blood experts or introduced expert evidence, the
[state habeas court] could not reasonably have concluded
counsel provided adequate 
representation." 131 S. Ct. at 788
.
There, at the trial of Richter and his codefendant for the
attempted murder of one man (Johnson) and the murder of
another (Klein), Richter’s lawyer introduced the theory that
the codefendant had fired on Johnson in self-defense and that
Klein had been killed in the crossfire. See 
id. at 781-82.
Although 
"[b]lood evidence [did] not appear to have been part
of the prosecution’s planned case prior to trial," the introduc-
tion of the self-defense theory prompted the prosecution to
put on two unnoticed blood experts to refute Richter’s
account. 
Id. at 782. Richter’s 
lawyer’s cross-examination of
those two expert witnesses "probed weaknesses in the[ir] tes-
timony," and the lawyer called seven fact witnesses for the
defense, including Richter and others who "provided some
corroboration for Richter’s story." 
Id. In the subsequent
habeas proceedings, Richter asserted that his trial counsel was
deficient in failing to present blood experts in support of the
self-defense theory. See 
id. at 783.

   The 
Richter Court concluded that "[i]t was at least arguable
that a reasonable attorney could decide to forgo inquiry into
the blood evidence in the circumstances 
here." 131 S. Ct. at
788
. The Court observed that "it was far from a necessary
conclusion that [the importance of the blood evidence] was
evident at the time of the trial," and that, "[e]ven if it had been
apparent that expert blood testimony could support Richter’s
defense, it would be reasonable to conclude that a competent
attorney might elect not to use it." 
Id. at 789. For, 
the Court
explained,

    making a central issue out of blood evidence would
    have increased the likelihood of the prosecution’s
    producing its own evidence on the blood pool’s ori-
146                     ELMORE v. OZMINT
      gins and composition; and once matters proceeded
      on this course, there was a serious risk that expert
      evidence could destroy Richter’s case. Even apart
      from this danger, there was the possibility that expert
      testimony could shift attention to esoteric matters of
      forensic science, distract the jury from whether John-
      son was telling the truth, or transform the case into
      a battle of the experts.

         True, it appears that defense counsel’s opening
      statement itself inspired the prosecution to introduce
      expert forensic evidence. But the prosecution’s evi-
      dence may well have been weakened by the fact that
      it was assembled late in the process; and in any event
      the prosecution’s response shows merely that the
      defense strategy did not work out as well as counsel
      had hoped, not that counsel was incompetent.

Id. at 790 (citation 
omitted). Highlighting the proposition that
"it is difficult to establish ineffective assistance when coun-
sel’s overall performance indicates active and capable advo-
cacy," the Court also recognized that "Richter’s attorney
represented him with vigor and conducted a skillful cross-
examination. [D]efense counsel elicited concessions from the
State’s experts and was able to draw attention to weaknesses
in their conclusions." 
Id. at 791.

   Here, 
in stark contrast to Richter, forensic evidence was
always and obviously vital to the State’s case, which other-
wise relied on James Gilliam’s account of Elmore’s spontane-
ous jailhouse confession and Elmore’s guilty demeanor and
lack of a corroborated alibi for Saturday night. As such, the
defense did not risk "making a central issue out of [the foren-
sic] evidence," because the State was already certain to do so.
Cf. 
Richter, 131 S. Ct. at 790
. Rather, the circumstances
necessitated that the defense work to engender doubt about
the forensic evidence. Elmore’s lawyers attempted as much in
their cross-examinations of the State’s witnesses, but, because
                       ELMORE v. OZMINT                      147
the lawyers had twice squandered opportunities to investigate
the forensic evidence (prior to the 1982 and 1984 trials), they
were unarmed for the battle.

   The dearth of investigation also distinguishes this case from
others where counsel, having conducted some investigation,
made an informed decision to pursue another strategy. See
Cullen, 131 S. Ct. at 1407 
("There comes a point where a
defense attorney will reasonably decide that another strategy
is in order, thus ‘mak[ing] particular investigations unneces-
sary.’" (alteration in original) (quoting 
Strickland, 466 U.S. at
691
)). In Cullen, for example, the Supreme Court withheld
relief because the defendant (Pinholster) failed to show "that
the [state habeas court’s] decision that he could not demon-
strate deficient performance by his trial counsel necessarily
involved an unreasonable application of federal law." 
Id. at
1403-04. Pinholster 
complained of his counsel’s failure to
pursue and present additional penalty-phase mitigation evi-
dence concerning his troubled background. See 
id. at 1404.
The 
Court observed, however, that counsel had investigated
mitigating evidence (including Pinholster’s background) prior
to the trial’s penalty phase, and reasonably concluded that an
alternative "family sympathy defense" was a better strategy.
See 
id. at 1404-05; see 
also, e.g., Burger v. Kemp, 
483 U.S.
776
, 794 (1987) (concluding, even pre-AEDPA, "that coun-
sel’s decision not to mount an all-out investigation into peti-
tioner’s background in search of mitigating circumstances
was supported by reasonable professional judgment"); Dar-
den v. Wainwright, 
477 U.S. 168
, 185-86 (1986) (deeming
counsel’s performance adequate where "a great deal of time
and effort went into the defense of [the] case," including "a
significant portion . . . devoted to preparation for sentencing,"
leading to a reasonable choice "to rely on a simple plea for
mercy from petitioner himself").

   Because Elmore’s lawyers’ investigation into the State’s
forensic evidence never started, there could be no reasonable
strategic decision either to stop the investigation or to forgo
148                        ELMORE v. OZMINT
use of the evidence that the investigation would have uncov-
ered. In nonetheless approving the performance of Elmore’s
lawyers, the state PCR court unreasonably applied Strickland
to the facts of this case. That is, "there is no possibility fair-
minded jurists could disagree that the state court’s decision
conflicts with [Strickland]." See 
Richter, 131 S. Ct. at 786.48
                                     ii.

   In otherwise evaluating Elmore’s ineffective assistance
claim under the performance prong of Strickland, the state
PCR court repeatedly relied on later-developed facts —
unknown to Elmore’s trial lawyers when they decided against
investigating the State’s forensic evidence prior to the 1982
and 1984 trials — to retroactively justify that decision. Of
course, the court’s reliance on such facts was in plain contra-
vention of Strickland’s contemporary assessment rule — a
rule that the state PCR court itself acknowledged. See First
PCR Order 147-48. To illustrate, the court found that the
defense team was not deficient in failing to hire an indepen-
dent pathologist to challenge medical examiner Dr. Sandra
Conradi’s time-of-death opinion, because, more than a decade
  48
     Our conclusion that the state PCR court unreasonably applied Strick-
land in its performance-prong analysis is not altered by the court’s discus-
sion that "the [Strickland] court recognized that much of counsel’s
strategic investigations was [sic] necessarily based upon the communica-
tions that counsel has with his client." First PCR Order 8. Generally
addressing Elmore’s multi-faceted ineffective assistance claim, the state
PCR court observed that Elmore’s 1982 trial testimony "had an effect on
how counsel would prepare and present the case in the retrial in 1984." 
Id.
at 9. But 
the court did not — and undoubtedly could not — draw any
cause-and-effect connection between Elmore’s 1982 testimony (concern-
ing such issues as his whereabouts at the alleged time of Mrs. Edwards’s
murder) and his lawyers’ failure to investigate the State’s forensic evi-
dence prior to either the 1982 or the 1984 trial. See 
id. at 8-9; cf. 
Strick-
land, 466 U.S. at 691 
(explaining that limited investigation may be
reasonable if "need for further investigation" was "diminished or elimi-
nated" by defendant’s statements to counsel, or if such statements alerted
counsel that additional investigation "would be fruitless or even harmful").
                           ELMORE v. OZMINT                            149
later, Elmore’s PCR expert Dr. Jonathan Arden "conceded
that there was a possibility that the time of death could have
been on Saturday night." 
Id. at 22. With 
respect to the defense
team’s failure to investigate the forty-five pubic hairs alleg-
edly found on Mrs. Edwards’s bed, the court concluded there
was no deficiency because SLED’s Ira Byrd Parnell, Jr., and
Frank Dan DeFreese "credibly testified" in the PCR proceed-
ings, as they had at trial, about their discovery of the hairs.
See 
id. at 27. The 
court also invoked Parnell’s PCR testimony
that he did not collect the bedcovers and sheets because he
saw nothing of evidentiary value on them. See id.49

   Moreover — despite recognizing that the use of hindsight
is prohibited for Strickland’s performance-prong analysis but
necessary to the prejudice-prong inquiry, see First PCR Order
148 — the state PCR court deemed facts relevant to the preju-
dice issue to also be pertinent to the performance question.
The court thereby suggested that Elmore’s trial lawyers were
not deficient in failing to investigate the State’s forensic evi-
dence because the jury would have credited the State’s evi-
dence over any contrary evidence that Elmore could have
proffered. For example, the court cited "the historical evi-
dence" pointing to a Saturday night death (such as the burning
coffeepot and ringing alarm clock) in ruling that there was no
deficiency in answering Dr. Conradi’s time-of-death opinion.
See 
id. at 22. The 
court relied on its own findings of no break
in the chain of custody to reject Elmore’s assertion that his
trial lawyers erred with respect to the pubic hairs allegedly
found on Mrs. Edwards’s bed. See 
id. at 31 (finding 
that Par-
nell discovered and seized the hairs, that he and DeFreese
  49
     On the absence of a photograph of the hairs on the bed, the court
noted that "[t]he defense did not need to hire an expert to point that out,"
without confronting the lawyers’ failure to otherwise bring the nonexistent
photograph to the 1984 jury’s attention or even discern that no photograph
existed. See First PCR Order 27. Indeed, the court did not address much
of Elmore’s evidence of irregularities in the pubic hair evidence, and
declared that Elmore relied on "bare assertions" of police misconduct. See
id. at 31.
150 
                       ELMORE v. OZMINT
delivered the hairs to SLED colleague Earl Wells, and that
Wells maintained custody of the hairs until the 1982 trial). As
for Item T, which was still missing at the time, the court
found in the First PCR Order that Item T’s contents were lim-
ited to blue fibers and thus that "[d]efense counsel cannot be
deemed ineffective for failing to develop that blue fibers were
found on the victim’s body rather than hair." 
Id. at 32.50

   In 
relying on those facts, the state PCR court disregarded
the contemporary assessment rule of Strickland, from which
the Supreme Court has never strayed. The state PCR court
instead should have heeded the Supreme Court’s 1986 deci-
sion in Kimmelman, which (a full decade before the First PCR
Order) instructed against the "use of hindsight to evaluate the
relative importance of various components of the State’s
case." 
Kimmelman, 477 U.S. at 386-87 
(quoting 
Strickland,
466 U.S. at 689
, for the proposition that "[a] fair assessment
of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evalu-
ate the conduct from counsel’s perspective at the time"). The
Kimmelman petitioners had sought "to minimize the serious-
ness of counsel’s errors [in failing to conduct the pretrial dis-
covery necessary for a timely motion to suppress the
unlawfully seized bedsheet] by asserting that the State’s case
turned far more on the credibility of witnesses than on the
   50
      Once it was revealed that Item T actually consisted of four human
hairs, three animal hair fragments, and a single blue fiber, the state PCR
court revisited its Item T Strickland analysis in the Second PCR Order,
which apparently relied solely on the prejudice prong to deny relief. See
Second PCR Order 4-5; see also 
Strickland, 466 U.S. at 697 
(advising that
courts may address performance and prejudice prongs in any order, and
need not take up both prongs if defendant has made insufficient showing
on one). The court similarly seemed to limit its First PCR Order evalua-
tion of Elmore’s fingerprint-related Strickland contention to the prejudice
prong, though the court elsewhere observed that the fingerprint evidence
was available to the defense as early as 1982 "and could have been ana-
lyzed with ‘due diligence.’" See First PCR Order 24-25, 78 n.2.
                       ELMORE v. OZMINT                      151
bedsheet and related testimony." 
Id. at 385. The 
Court
observed, however, that the petitioners’ theory was doomed
by its dependence on hindsight. See 
id. at 386. The 
Court
explained:

    At the time Morrison’s lawyer decided not to request
    any discovery, he did not — and, because he did not
    ask, could not — know what the State’s case would
    be. While the relative importance of witness credibil-
    ity vis-a-vis the bedsheet and related expert testi-
    mony is pertinent to the determination whether
    [Morrison] was prejudiced by his attorney’s incom-
    petence, it sheds no light on the reasonableness of
    counsel’s decision not to request any discovery.

Id. at 387; accord 
Washington v. Murray, 
4 F.3d 1285
, 1289
(4th Cir. 1993) ("[Counsel’s] conduct should have been evalu-
ated from his perspective at the time of trial, and the district
court should not have constructed a tactical decision counsel
might have made, but obviously did not." (citing 
Strickland,
466 U.S. at 689
)).

   There is no question that the state PCR court unreasonably
applied and acted contrary to Strickland in its performance-
prong analysis by relying on non-contemporaneous facts to
excuse the lawyers’ failure to conduct a pretrial investigation
into the State’s forensic evidence. In so doing, the state PCR
court defied the Strickland principle that a court deciding an
"ineffectiveness claim must judge the reasonableness of coun-
sel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct." 
See 466 U.S. at
690
.

                              iii.

  In sum, the state PCR court’s performance-prong analysis
of Elmore’s ineffective assistance claim was both an unrea-
sonable application of, and contrary to, the controlling Strick-
152                    ELMORE v. OZMINT
land principles. Simply put, this is one of those instances of
deficient performance in which counsel, despite a professional
obligation to conduct an investigation, "has failed to investi-
gate [the] defense at all or has performed an investigation so
minimal that no strategic reason could be given for the failure
to investigate further." See United States v. Roane, 
378 F.3d
382
, 411 (4th Cir. 2004) (emphasis omitted) (citing cases);
see also 
Washington, 4 F.3d at 1288 
("Prior to trial, counsel
was completely in the dark about the import of the evidence,
and therefore, could not have made a strategic choice against
using it."). Hence, no amount of deference could compel any
fair conclusion other than that Elmore has satisfied his burden
under Strickland’s performance prong.

                               b.

                               i.

   Next, on the prejudice prong of Strickland, the state PCR
court correctly recognized that the applicable test is "whether
there is a reasonable probability that but for counsel’s defi-
cient performance, the result of the proceeding would have
been different," with a "reasonable probability" being "a prob-
ability sufficient to undermine confidence in the outcome."
First PCR Order 5; see also 
id. at 148 (reiterating 
same). The
court erroneously misperceived, however, that the Supreme
Court’s 1993 decision in Lockhart enlarged the previously
understood requirements of Strickland’s prejudice-prong test.
As the state PCR court saw it, Lockhart "dealt . . . a telling
blow" to defendants’ typical argument "that if the outcome of
the proceeding would likely have been different, they have
shown prejudice." First PCR Order 148. The state PCR court
relied on its reading of Lockhart that "a reviewing court must
not consider ‘mere outcome determination,’ but must look
only at whether the error alleged resulted in a proceeding
which was ‘fundamentally unfair or unreliable.’" 
Id. (alter-
ation omitted) 
(quoting 
Lockhart, 506 U.S. at 369
). According
to the court, "[t]o do otherwise applies Strickland incorrectly"
                       ELMORE v. OZMINT                        153
and "may grant [the defendant] a windfall to which the law
does not entitle him." 
Id. at 148-49.

   Importantly, 
the Supreme Court has not only rejected the
state PCR court’s interpretation of Lockhart, but deemed that
interpretation to be an unreasonable application of and con-
trary to the clearly established principles of Strickland. See
Williams, 529 U.S. at 391 
("The [state habeas court] erred in
holding that our decision in Lockhart . . . modified or in some
way supplanted the rule set down in Strickland."). Williams
explained that Lockhart involved the unusual circumstance of
an attorney error — the failure to make an objection that
would have been sustained at the time, but overruled under
current law — that "had not deprived [the defendant] of any
substantive or procedural right to which the law entitled him."
Id. at 392. Thus, 
"in Lockhart, [the Court] concluded that,
given the overriding interest in fundamental fairness, the like-
lihood of a different outcome attributable to an incorrect inter-
pretation of the law should be regarded as a potential
‘windfall’ to the defendant rather than the legitimate ‘preju-
dice’ contemplated by . . . Strickland." 
Williams, 529 U.S. at
392
. Williams underscored, however, that Lockhart did "not
justify a departure from a straightforward application of Str-
ickland when the ineffectiveness of counsel does deprive the
defendant of a substantive or procedural right to which the
law entitles him" — including, relevant to Elmore, the "con-
stitutionally protected right . . . to provide the jury with . . .
evidence that his trial counsel either failed to discover or
failed to offer." 
Id. at 393. As 
Justice O’Connor had already
explained in her Lockhart concurrence:

    I write separately only to point out that today’s deci-
    sion will, in the vast majority of cases, have no effect
    on the prejudice inquiry under Strickland . . . . The
    determinative question — whether there is "a reason-
    able probability that, but for counsel’s unprofes-
    sional errors, the result of the proceeding would have
    been different" — remains unchanged.
154                     ELMORE v. OZMINT
Lockhart, 506 U.S. at 373 
(O’Connor, J., concurring) (quoting
Strickland, 466 U.S. at 694
)).

   In Williams, the state habeas court unreasonably applied
and acted contrary to Strickland as a result of doing exactly
what the state PCR court did here: "read[ing] Lockhart to
require a separate inquiry into fundamental fairness" even if
the defendant is able to show a reasonable probability of a dif-
ferent result. See 
Williams, 529 U.S. at 393
, 397. To be fair,
however, it is unclear whether the state PCR court actually
performed a distinct "fundamental fairness" analysis, as the
state habeas court had done in Williams. See 
id. at 397
(observing 
both that state habeas court "mischaracterized"
appropriate rule and that its "decision turned on its erroneous
view"). Here, the state PCR court alternately spoke in terms
of no reasonable probability of a different result (suggesting
that the fundamental fairness question was not reached), and
simply of a lack of prejudice (indicating that fundamental
fairness may have been considered). See, e.g., First PCR
Order 23, 27.

   In any event, we need not decide whether the state PCR
court’s misapprehension of Lockhart alone is lethal to its
prejudice-prong analysis, because additional error rendered
that analysis fatally unreasonable. That is, the court neither
acknowledged nor obeyed the Strickland requirement to "con-
sider the totality of the evidence before the . . . jury" in deter-
mining whether there was a reasonable probability that, but
for counsel’s errors, a different verdict would have been
returned. See 
Strickland, 466 U.S. at 695
; see also 
Williams,
529 U.S. at 397-98 
(concluding that state habeas court’s prej-
udice analysis was unreasonable not only for relying on mis-
interpretation of Lockhart, but also for failing to consider
totality of evidence). In the context of assessing the prejudi-
cial effect of a failure to investigate mitigation evidence for
sentencing, a court acts unreasonably if it does not "evaluate
the totality of the available mitigation evidence — both that
adduced at trial, and the evidence adduced in the habeas pro-
                       ELMORE v. OZMINT                     155
ceeding — in reweighing it against the evidence in aggrava-
tion." 
Williams, 529 U.S. at 397-98
; see also Porter v.
McCollum, 
130 S. Ct. 447
, 454 (2009) (per curiam) ("The
[state habeas court’s] decision that Porter was not prejudiced
by his counsel’s failure to conduct a thorough — or even cur-
sory — investigation is unreasonable [under Strickland]. The
[court] either did not consider or unreasonably discounted the
mitigation evidence adduced in the postconviction hearing.");
Rompilla, 545 U.S. at 390-93 
(finding prejudice under same
totality-of-evidence standard on de novo review); 
Wiggins,
539 U.S. at 534-38 
(same).

   Here, the totality-of-the-evidence standard required the
state PCR court to consider all of the trial and PCR evidence
favoring Elmore’s acquittal and then to reweigh that evidence
against the State’s evidence of guilt. Under that standard, the
court should have evaluated the collective trial evidence
together with the collective evidence that a reasonable investi-
gation of the State’s forensic evidence would have uncovered.
See 
Porter, 130 S. Ct. at 454 
(taking into account all mitigat-
ing evidence that would have been before the judge and jury
"[h]ad Porter’s counsel been effective"); 
Rompilla, 545 U.S.
at 390-91 
(considering all mitigating evidence that Rompilla’s
lawyers would have found by looking at his prior conviction
file); 
Wiggins, 539 U.S. at 534-35 
(including all "mitigating
evidence counsel failed to discover" in totality-of-evidence
review); 
Williams, 529 U.S. at 398 
(same).

   Clearly, however, the state PCR court engaged in a differ-
ent analysis — an analysis that unreasonably broke from
Strickland by considering less than the totality of the evi-
dence, and one that unreasonably discounted evidence favor-
able to Elmore by unduly minimizing its import and
evaluating it piecemeal. Ruling that Elmore was not preju-
diced with respect to his lawyers’ failure to investigate Dr.
Sandra Conradi’s time-of-death opinion, the court explained
that, even without a defense pathologist, "counsel Beasley
was able to clarify that the ‘time of death’ opinion in the 1984
156                    ELMORE v. OZMINT
trial was inexact and the range of death was broad, from 12
hours to 3 days." First PCR Order 22. The court also pointed
out that "Dr. [Jonathan] Arden’s newly developed range [was]
within Dr. Conradi’s range," and that Dr. Conradi was able in
the PCR proceedings to "credibly support[ ] her analysis and
[provide] reasonable clarification over matters Dr. Arden
assumed she missed." 
Id. at 22-23. The 
court relied on its
finding of the SLED agents’ credibility in concluding that
Elmore was not prejudiced by his lawyers’ lack of investiga-
tion into the pubic hairs purportedly found on Mrs. Edwards’s
bed. See 
id. at 27, 31. 
And, the court decided that no prejudice
resulted from the failure to investigate the fingerprint evi-
dence — particularly the identifiable but unidentified print
lifted from the blood-smeared toilet in Mrs. Edwards’s en
suite bathroom — because that print may have come from
Mrs. Edwards and, in any event, was "of little value" and was
"not exonerating." See 
id. at 24-25, 76-77 
(internal quotation
marks omitted).

   Finally, in the First PCR Order, the state PCR court deter-
mined that the lack of investigation into Item T was nonpre-
judicial, because the defense team simply would have
discovered that Item T contained blue fibers. See First PCR
Order 32. Having thereafter learned that Item T actually
included, among other Caucasian hairs, a Caucasian hair not
belonging to Mrs. Edwards, the court yet discerned no preju-
dice. As the court explained in the Second PCR Order, "[o]ne
hair from the victim’s body from the bedroom floor that could
have come from various sources does not mandate a new
trial." See Second PCR Order 5. Contrary to the totality-of-
the-evidence standard, the court embraced the theory that the
only evidence that mattered was the evidence incriminating
Elmore; thus, according to the Second PCR Order, "[e]ven if
DNA testing showed the single [unmatched Item T] hair to be
[Jimmy] Holloway’s, the prior jury verdicts would not have
been undermined." Id.; see also First PCR Order 109 ("[T]he
fingerprint evidence claim does not ‘support’ Mr. Elmore’s
innocence, it merely reveals a print left by an unidentified
                            ELMORE v. OZMINT                             157
person at some time in the past. It is not the existence of other
prints in the home, it is the fact that Elmore’s print was found
that is significant."). The court’s failure to consider the total-
ity of the evidence was particularly obvious in the Second
PCR Order’s discussion of Item T, which alluded to Elmore’s
pubic hairs on the bed as counterbalancing inculpatory evi-
dence without taking questions about the reliability of the
pubic hair evidence into account. See Second PCR Order 5.51

                                     ii.

   Properly applied, the totality-of-the-evidence standard
results in only one reasonable conclusion: there is a reason-
able probability — that is, a substantial likelihood — that, but
for his lawyers’ failure to investigate the State’s forensic evi-
dence, Elmore would have been acquitted in the 1984 trial.
See 
Strickland, 466 U.S. at 695 
("When a defendant chal-
lenges a conviction, the question is whether there is a reason-
able probability that, absent [counsel’s] errors, the factfinder
would have had a reasonable doubt respecting guilt."); see
  51
     Two matters concerning the state PCR court’s treatment of the pubic
hair evidence deserve some attention. First, the court used the pubic hairs
as powerful inculpatory evidence forgiving a number of alleged flaws in
the State’s case and Elmore’s lawyers’ performance, including the failure
of the police and defense counsel to investigate Holloway, the failure of
defense counsel to challenge Dr. Conradi’s finding of a sexual assault, and
the failure of the police and defense counsel to reveal that at least one fin-
gerprint on the exterior frame of the back door into the Edwards home
(near the thumbprint matched to Elmore) was identifiable and not
Elmore’s. In so doing, the court never acknowledged Elmore’s evidence
that the SLED agents lied about finding the pubic hairs on Mrs. Edwards’s
bed. Moreover, by relying on its own finding of the agents’ credibility to
rule that Elmore suffered no prejudice from his lawyers’ failure to investi-
gate the pubic hairs, the court seemed to erroneously equate Strickland’s
reasonable probability standard with a requirement for proof by at least a
preponderance of the evidence. Because the First PCR Order is ambiguous
on that point, however, we refrain from noticing additional error and
instead accord the court the benefit of the doubt. See Holland v. Jackson,
542 U.S. 649
, 654-55 (2004) (per curiam).
158                    ELMORE v. OZMINT
also 
Richter, 131 S. Ct. at 792 
("The likelihood of a different
result must be substantial, not just conceivable." (citing
Strickland, 466 U.S. at 693
)). With investigation, the jury
undeniably would have seen a drastically different — and sig-
nificantly weaker — prosecution case.

   As it was, the 1984 jury heard only that the scientific indi-
cators of time of death "are very variable," see J.A. 653 (trial
testimony of Dr. Conradi on cross-examination), leaving the
false impression that a Saturday night death was just as likely
as death at any other time during Dr. Conradi’s sixty-hour
window. Had Elmore’s lawyers looked into the time-of-death
opinion, the jury would have learned that death on Sunday
afternoon, when Elmore had a corroborated alibi, was much
more probable than death on Saturday night. An expert like
Dr. Arden would have advised that a Saturday night death,
though not "physically impossible," was "incredibly
unlikely." See 
id. at 2252 (Dr. 
Arden’s PCR testimony that "I
strongly hold the opinion that Mrs. Edwards was not killed
Saturday night as claimed"). And Dr. Conradi would have
been compelled to concede that "the usual case" meant death
on Sunday afternoon, and that Saturday night was "close" to
the "outside limit" of the possible range. See 
id. at 2720-21
(Dr. 
Conradi’s PCR testimony). The additional evidence
would not only call into question whether Elmore could have
perpetrated Mrs. Edwards’s murder, but also raise the issue of
whether the circumstantial evidence of a Saturday night death
was staged, thus suggesting other suspects such as Jimmy
Holloway.

   Whereas the 1984 jury heard the unquestioned testimony of
SLED’s Frank Dan DeFreese and Ira Byrd Parnell, Jr., that
they found forty-five pubic hairs consistent with Elmore on
Mrs. Edwards’s bed, investigation into the pubic hair evi-
dence would have equipped the defense team for impeach-
ment of the SLED agents’ account. Even without an expert
witness, Elmore’s lawyers could have exposed the agents’
failures to photograph the hairs on the bed, to collect the bed-
                       ELMORE v. OZMINT                       159
covers and sheets for further testing, and to package the hairs
like other physical evidence removed from the crime scene.
The lawyers also could have alerted the jury that no blood or
semen was present on the bedding, no other hairs consistent
with Elmore were found, and no groin injury was sustained by
Elmore. With an expert, the defense could have underscored
not only the SLED agents’ gross violations of standard proce-
dures for the handling of forensic evidence, but also the
extraordinariness of finding so many incriminating hairs. Par-
nell himself admitted that the hairs were exceptional in num-
ber and should have been photographed on the bed, and he
was unable to explain the hairs’ unique packaging.

   Though perhaps the jury would have yet believed the
SLED agents, there is a reasonable probability that the jury
would have doubted the agents’ account — a conclusion that
is bolstered by additional clear evidence that the SLED team
was at least mistake-prone, as well as by other persuasive evi-
dence that the agents were outright dishonest. Inquiry into
Item T would have revealed that SLED’s Earl Wells either
negligently or knowingly misreported Item T’s contents as
being solely blue fibers, when "the presence of hair was
immediately apparent and clearly visible, that is to say that
hair was visible . . . to the naked eye." See J.A. 3638 (affidavit
of State’s own PCR expert Myron T. Scholberg). Thus, even
before the advent of the DNA testing that excluded Mrs.
Edwards as the source of one of those Caucasian hairs, Item
T constituted important evidence in Elmore’s favor. Similarly,
examination of the fingerprint evidence would have revealed
that DeFreese arguably misreported the toilet print as uniden-
tifiable, just as he admittedly misreported as unidentifiable a
print lifted from a spot near Elmore’s thumbprint on the exte-
rior door frame of the back door into the Edwards home. The
value of the toilet print to Elmore is somewhat circumscribed
by the inability to compare it to Mrs. Edwards, but the toilet
print, together with the additional door frame print, is none-
theless further evidence of police ineptitude and deceit.
160                     ELMORE v. OZMINT
   Taking into account, as we must, all of the foregoing PCR
evidence that Elmore’s lawyers failed to expose, it can no lon-
ger be said that there is an "overwhelming" case against
Elmore and Elmore alone. Cf. First PCR Order 119. To be
sure, the case against Elmore is more appropriately character-
ized as "underwhelming." The PCR evidence adds salience to
the trial evidence in Elmore’s favor, including the lack of
inculpatory evidence in his car and his voluntary pre-arrest
encounter with the police. Indeed, the PCR evidence dramati-
cally "alter[s] the entire evidentiary picture." See 
Strickland,
466 U.S. at 695
-96 (recognizing that "[s]ome errors will have
had a pervasive effect on the inferences to be drawn from the
evidence, altering the entire evidentiary picture"). Here, the
collective trial and PCR evidence tends to cast doubt on
Elmore’s guilt, points to the likelihood of another perpetrator,
and eliminates any portrayal of the police as infallible and
truthful experts impervious to cross-examination. That is not
to say that, if the jury had heard the PCR evidence, Elmore’s
acquittal would have been certain. But, there is a reasonable
probability that such evidence would have been credited,
leaving the State’s case to rest on Elmore’s thumbprint on the
back door frame, bloodspots of the type Mrs. Edwards shared
with 40-45% of the population on Elmore’s pants and shoe,
the disputed evidence of Elmore’s guilty conscience, and fel-
low inmate James Gilliam’s account of Elmore’s spontaneous
jailhouse confession. That evidence of guilt, flimsy of its own
right, is diminished further if the PCR evidence leads one to
distrust the competence or motivations of the police investiga-
tors.

   Accordingly, it must be concluded under the totality-of-the-
evidence standard that there is a reasonable probability of a
different verdict. In the words of Rompilla (slightly modified
to fit the present circumstances):

      [A]lthough we suppose it is possible that a jury
      could have heard it all and still have decided on the
      [guilty verdict], that is not the test. It goes without
                       ELMORE v. OZMINT                      161
    saying that the undiscovered . . . evidence, taken as
    a whole, might well have influenced the jury’s
    appraisal of [Elmore’s] culpability, and the likeli-
    hood of a different result if the evidence had gone in
    is sufficient to undermine confidence in the outcome
    actually reached at [trial].

See 545 U.S. at 393 
(internal quotation marks omitted).

                               iii.

   At bottom, the state PCR court both unreasonably applied
and acted contrary to Strickland in its prejudice-prong assess-
ment, just as it did in its performance-prong analysis. Because
the only fair conclusion is that Elmore has shown deficient
performance and resulting prejudice, he is entitled to relief on
his Sixth Amendment ineffective assistance of counsel claim.

                              IX.

   Finally, we briefly address our dissenting colleague’s
uncharacteristically strident — and flat-out wrong — por-
trayal of this decision as some sort of flippant incursion into
state territory where we federal judges do not belong. As our
esteemed friend would have it, our job is solely to rubber-
stamp the state PCR court — never mind that court’s flouting
of clear Supreme Court precedent and disregard of inconve-
nient evidence. Conversely, we see a meaningful role for the
federal courts in safeguarding the constitutional rights of state
prisoners like Elmore. And we enjoy illustrious company —
the Supreme Court itself — in that view. See, e.g., Miller-El
v. Cockrell, 
537 U.S. 322
, 340 (2003) ("Even in the context
of federal habeas, deference does not imply abandonment or
abdication of judicial review. Deference does not by defini-
tion preclude relief.").

  Of course, AEDPA appreciably constrains the scope of our
review. But we have carefully and faithfully adhered to the
162                        ELMORE v. OZMINT
deferential AEDPA standard, guided at every step by a bevy
of pertinent Supreme Court decisions, beginning with the
seminal Strickland v. Washington, 
466 U.S. 668 
(1984), and
extending through the Court’s AEDPA-era ineffective assis-
tance cases. While it is enough for our dissenting colleague
that the state PCR court uttered the word "Strickland," our
AEDPA analysis — in line with that of the Supreme Court —
is more demanding. For example, we rule today that the state
PCR court unreasonably applied and acted contrary to Strick-
land in its prejudice-prong analysis by misapprehending the
import of Lockhart v. Fretwell, 
506 U.S. 364 
(1993), and by
failing to heed Strickland’s totality-of-the-evidence standard.
In so ruling, we trod no new path. Rather, we aptly rely on the
Supreme Court authority of Williams v. Taylor, 
529 U.S. 362
,
397-98 (2000).52

   Oddly, the dissent ascribes Elmore’s ineffective assistance
claim to the panel majority, as if we invented it for this
appeal. In reality, Elmore spent years in the state PCR court
developing evidence in support of his theory that he was the
victim (and possible murderer Jimmy Holloway the benefi-
ciary) of inept and corrupt law enforcement officers
unchecked by incompetent defense counsel. We, in turn, sim-
ply fulfill our obligation to thoroughly review the trial and
PCR evidence in conducting an AEDPA assessment of the
state court’s adjudication of Elmore’s claim. In the process,
we address the claim and evidence precisely as presented to
   52
      Our dissenting colleague goes so far as to suggest that the state PCR
court cannot possibly have acted unreasonably, because we are the first
judges to say that Elmore was prejudiced by his lawyers’ deficient perfor-
mance. If that were the yardstick, our review would truly be the perfunc-
tory exercise that the dissent advocates. But (thankfully for the cause of
our system of justice) that is not the test, as illustrated by Miller-El v.
Dretke, where the Supreme Court became the first court to proclaim the
merit of Miller-El’s Fourteenth Amendment jury claim. See 
545 U.S. 231
,
236-37 (2005) (ordering 28 U.S.C. § 2254 relief following claim’s unani-
mous rejection by state trial court, state appeals court, federal district
court, and federal court of appeals).
                       ELMORE v. OZMINT                      163
the state court. We do not, as the dissent prefers, follow the
state court’s misguided lead in recasting the claim into less
cogent parts and minimizing (to the point of outright ignor-
ing) important pieces of evidence. Neither do we credit
Elmore’s evidence nor endorse his innocence theory. Indeed,
our only pronouncement is this: There is a reasonable proba-
bility that, had the 1984 jury heard the evidence that Elmore’s
lawyers deficiently failed to uncover, the verdict would have
been "not guilty." We are not — and do not presume to be —
the arbiters of any other question, including whether Elmore
murdered Mrs. Edwards, whether he was framed by the SLED
investigators, or whether the real perpetrator was Holloway.

   Our dissenting colleague, by contrast, confidently declares
Elmore to be guilty, the SLED team to be above reproach, and
Holloway to be viciously and baselessly maligned. The dis-
sent takes great umbrage that we would entertain any other
possibility and thereby impugn the South Carolina criminal
justice system and the late Mr. Holloway. If our opinion
embarrasses anyone, so be it. It would be entirely inappropri-
ate for us to pull our punches or take any such consideration
into account. There are far greater interests at stake: the fair-
ness of our judicial system and, more specifically, Elmore’s
Sixth Amendment right to the effective assistance of counsel.

                               X.

   Pursuant to the foregoing, we reverse the judgment of the
district court denying relief and remand for the court to award
Elmore a writ of habeas corpus unless the State of South Car-
olina endeavors to prosecute him in a new trial within a rea-
sonable time.

                               REVERSED AND REMANDED
164                     ELMORE v. OZMINT
WILKINSON, Circuit Judge, dissenting:

   It would be amusing, if it were not so very serious, to imag-
ine for a moment the majority’s visit to a haberdashery. The
visit would be a fun one, because my friends in the majority
would try on every hat in the shop, except, of course, the one
that might conceivably fit. Here, the majority dons the head-
wear of the jury, the state trial court, the state appellate court,
the state post-conviction relief (PCR) court, and the federal
district court, but then inexplicably leaves the premises with-
out a passing glance at the cap befitting federal appellate
judges reviewing under AEDPA the considered judgment of
a state court that a defendant’s counsel was not ineffective
and that there was no prejudice arising from that counsel’s
allegedly deficient performance.

   The majority spends a considerable amount of time defend-
ing its conclusion that Edward Lee Elmore is entitled to
habeas relief on his ineffective assistance of counsel claim.
But as Mark Twain is reputed to have said, "The more you
explain it, the more I don’t understand it." SEC v. Chenery
Corp., 
332 U.S. 194
, 214 (1947) (Jackson, J., dissenting).
Simply put, the majority’s rejection of the South Carolina
PCR court’s determination that defense counsel’s alleged
deficiencies did not result in prejudice cannot be squared with
the deferential standards required under AEDPA, the facts of
this case, or Supreme Court precedent. And in the course of
its decision, the majority unjustly impugns the criminal justice
system of South Carolina, slanders a deceased man who sim-
ply had the misfortune of discovering his neighbor’s mutilated
body, and grants habeas relief to a prisoner whom over-
whelming evidence suggests brutally raped and murdered an
elderly woman in her home. For these reasons, I respectfully
dissent.
                           ELMORE v. OZMINT                            165
                                     I.

                                    A.

   Under the two-prong test set forth in Strickland v. Washing-
ton, 
466 U.S. 668 
(1984), Elmore must show not only that his
"counsel’s representation fell below an objective standard of
reasonableness," 
id. at 688, but 
also that there was "a reason-
able probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different." 
Id. at
694.

   According 
to Strickland, courts should resolve ineffective
assistance claims under the prejudice prong whenever possi-
ble. See 
id. at 697 ("If 
it is easier to dispose of an ineffective-
ness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be fol-
lowed."); see also Fields v. Attorney Gen., 
956 F.2d 1290
,
1297 (4th Cir. 1992) ("If the defendant cannot demonstrate
the requisite prejudice, a reviewing court need not consider
the performance prong."). It is clear beyond peradventure that
whatever defense counsel’s alleged failings, the outcome of
Elmore’s 1984 trial would almost certainly have been the same.1
  1
    In view of the fact that this case can be soundly resolved on the preju-
dice prong of Strickland, I see no need to go into the performance aspect
of the case. By no means, however, do I concede the point that the state
PCR court’s finding that Elmore’s "[c]ounsel was [not] ‘deficient’ . . .
with respect to the second trial" represents an unreasonable application of
Strickland. In fact, the majority itself points out the significant efforts
defense counsel made in attacking the state’s case. See ante at 30-33,
128-131. It is manifest that the problem here was not Elmore’s counsel,
but the fact that even the most sterling advocate cannot overcome an over-
whelmingly adverse case. To scapegoat Elmore’s counsel for not perform-
ing impossible feats seems to me a deeply flawed application of the
Strickland decision.
166                    ELMORE v. OZMINT
                              B.

   Only if one is prepared to throw Strickland deference to the
winds can prejudice to Elmore be discerned. The majority’s
approach here notwithstanding, we are neither the first court,
nor the best positioned one, to consider Elmore’s claim. In
collateral review, state courts should not be subordinate
courts, and the procedural history in fact places a heavy duty
of deference upon us. The standard of review here is among
the best known in all of law. As amended by AEDPA, 28
U.S.C. § 2254 provides that "[a]n application for a writ of
habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted" unless the state
court’s decision either "was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as
determined by the Supreme Court," 28 U.S.C. § 2254(d)(1),
or was "based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceed-
ing." 
Id. § 2254(d)(2). Unless 
it falls under one of these nar-
row exceptions, we cannot set aside a state court’s judgment
on collateral attack.

   It is not as though the state court missed the point. As the
majority acknowledges, the state PCR court recognized that
the clearly established law of Strickland governed Elmore’s
claims. Ante at 133. The majority nevertheless concludes that
the PCR court both "acted contrary to" and "unreasonably
applied" Strickland in its prejudice analysis. 
Id. at 161. Spe-
cifically, it believes the PCR court contravened Strickland’s
mandate to "consider the totality of the evidence," 
id. at 154
(quoting 
Strickland, 466 U.S. at 695
), and that, "[p]roperly
applied, the totality-of-the-evidence standard results in only
one reasonable conclusion," namely, that defense counsel’s
alleged errors resulted in prejudice. 
Id. at 157.

  The 
Supreme Court and Congress notwithstanding, the
majority’s view is de novo in disguise. The PCR court’s appli-
cation of Strickland’s prejudice prong cannot fall under the
                       ELMORE v. OZMINT                     167
"contrary to" clause of § 2254(d)(1). To qualify under this
provision, a state court must either "arrive[ ] at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law" or "decide[ ] a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts." Wil-
liams v. Taylor, 
529 U.S. 362
, 412-13 (2000). In dismissing
Elmore’s prejudice claim, the PCR court committed neither of
these two errors. As for the first, according to Strickland
itself, the prejudice inquiry is a "mixed question[ ] of law and
fact," 466 U.S. at 698
, and the majority’s rejection of the PCR
court’s analysis is heavily focused on factual considerations.
See ante at 157-160. As for the second, the majority fails to
provide a materially indistinguishable precedent. At best, it
offers a short string-cite of cases, a number of which involved
de novo rather than deferential review. See 
id. at 154-155. At
the end of the day, the majority’s conflation of these two
clauses only muddles the matter before us.

   At bottom, the majority’s two attacks on the PCR court are
really a single claim that the state court unreasonably applied
Strickland by refusing to find prejudice in this case. This con-
clusion, however, cannot be squared with the deference
required under § 2254. When applying the "unreasonable
application" clause, it is important to remember that "an
unreasonable application of federal law is different from an
incorrect application of federal law." 
Williams, 529 U.S. at
410 
(emphasis in original). As the Supreme Court has stated
time and again, "[E]ven a strong case for relief does not mean
the state court’s contrary conclusion was unreasonable." See,
e.g., Harrington v. Richter, 
131 S. Ct. 770
, 786 (2011). We
simply cannot overturn on collateral attack a state court’s con-
clusion that a claim lacks merit "so long as fairminded jurists
could disagree on the correctness of the state court’s deci-
sion." 
Id. (internal quotation marks 
omitted). This statute
creates a "highly deferential standard for evaluating state-
court rulings" that "demands that state-court decisions be
given the benefit of the doubt." Woodford v. Viscotti, 
537 U.S.
19
, 24 (2002) (per curiam) (internal quotation marks omitted).
168                    ELMORE v. OZMINT
   It is not as though the Supreme Court has uttered these sen-
timents only once. It has repeated them time and time again,
in part because actions of lower federal courts have made that
repetition necessary. Standards of review are not advisory.
They are not catechisms whose repetition is designed to make
us numb. AEDPA commands federal courts to show respect
for state court factual findings in order "to further the princi-
ples of comity, finality, and federalism." 
Williams, 529 U.S.
at 436
. These findings "shall be presumed to be correct," and
can only be overcome "by clear and convincing evidence." 28
U.S.C. § 2254(e)(1). The South Carolina courts did not kiss
this case off. Despite having at its disposal a 183-page state
PCR court opinion rejecting sixteen separate allegations of
error, the majority takes it upon itself to adjudicate Elmore’s
Strickland claims anew and overturn a litany of state court
factual findings. Like overreaching appellate courts in the
past, the majority simply has given "§ 2254(d) no operation
or function in its reasoning." 
Richter, 131 S. Ct. at 787
.

   If the requirements of § 2254 were not enough to send a
strong cautionary signal, Strickland itself imposes an addi-
tional level of deference for reviewing ineffective assistance
claims. "The standards created by Strickland and § 2254(d)
are both highly deferential, and when the two apply in tan-
dem, review is doubly so." 
Id. at 788 (citations 
omitted). On
the performance prong, courts are not permitted to "second-
guess counsel’s assistance" or to engage in an "intrusive post-
trial inquiry" due to the fact that an appellate court’s hindsight
often fails to take account of the actual circumstances on the
ground. See 
Strickland, 466 U.S. at 689
-90. And as for the
prejudice prong, there must be a "substantial, not just conceiv-
able," likelihood that counsel’s alleged errors led to a differ-
ent result. Cullen v. Pinholster, 
131 S. Ct. 1388
, 1403 (2011)
(internal quotation marks omitted).

  These two prongs—and the deferential approach required
by each — necessarily overlap. See Correll v. Ryan, 
539 F.3d
938
, 951 (9th Cir. 2008) ("[D]eficient performance and preju-
                       ELMORE v. OZMINT                      169
dice questions may be closely related."). It is therefore unsur-
prising that courts regularly apply the "doubly deferential"
standard of Strickland and AEDPA to both the performance
and prejudice prongs. See, e.g., 
Cullen, 131 S. Ct. at 1410-11
;
Foust v. Houk, 
655 F.3d 524
, 534 (6th Cir. 2011). This makes
good sense. If appellate courts must be wary of deeming
counsel’s conduct to be deficient, they should also be cautious
before deciding that that conduct actually resulted in preju-
dice.

   The majority pays lip service to these principles, but their
ultimate role in its decision is limited to perfunctory opening
remarks. See ante at 122-124. Had the majority begun its
analysis by seriously applying the doubly deferential standard
required by Strickland and AEDPA to the PCR court’s adjudi-
cation of Elmore’s prejudice claims, it would have quickly
concluded that it could not grant relief. Instead, it decided to
engage in what amounts to yet another trial of Elmore, only
this time without a jury, live evidence, or the other accoutre-
ments of adversarial process that give a trial its rightful name.
It is not unusual that sound principles of legal structure fall
into disrepair in a habeas case. See, e.g., 
Richter, 131 S. Ct.
at 792 
(reversing a federal appellate court’s refusal to show
deference to a state court’s adjudication of a Strickland claim
on collateral attack). But I am sorry to see an example so
extreme.

                               II.

   Three basic facts demonstrate that the majority’s rejection
of the PCR court’s prejudice analysis ignores the principles of
deference set down by Congress and the Supreme Court.
First, my friends in the majority stand in a lonely, lonely
place. No court—either state or federal—has ever before
found that any of defense counsel’s alleged errors prejudiced
Elmore. Second, unlike the juries that convicted Elmore and
the PCR court that upheld that conviction, the majority has
not heard a shred of witness testimony. Finally, the majority
170                    ELMORE v. OZMINT
disregards the actual evidence and spins a fanciful conspiracy
theory that cannot be squared with the facts of this case.
These are all symptoms of a court doing its own thing rather
than one mindful of its role when assessing Strickland claims
on collateral attack.

                              A.

   To begin, the majority’s decision runs up against the strik-
ing fact that before today, no court had ever found that the
conduct of Elmore’s counsel resulted in constitutional preju-
dice. Instead, after examining this issue in extensive detail,
the state PCR court, the federal magistrate judge, and the fed-
eral district court each concluded that the Elmore could not
make this showing. This fact is significant because we can
only reverse the PCR court’s decision here if there is no pos-
sibility that "fairminded jurists could disagree." 
Richter, 131
S. Ct. at 786
. While the previous federal opinions impose on
us no duty of deference as state opinions do, see Conner v.
Polk, 
407 F.3d 198
, 204 (4th Cir. 2005), they demonstrate that
the majority has reached the remarkable conclusion that every
single judge to have previously considered this issue has been
unreasonable. The only reasonable conclusion, says the
majority, is its own.

   The majority focuses on four evidentiary issues to support
its claim that the supposed failings of Elmore’s counsel
resulted in prejudice. First, it contends that had defense coun-
sel more fully investigated Dr. Conradi’s expert opinion
regarding Mrs. Edwards’s time of death, the jury would have
discovered that it was more likely her murder occurred on
Sunday afternoon rather than Saturday night. Ante at 158. But
the state PCR court rejected this precise argument. It began by
noting that even Elmore’s own expert "conceded that there
was a possibility that the time of death could have been on the
Saturday night." It then reiterated the strong circumstantial
evidence supporting a Saturday night time of death. Mrs.
Edwards had planned to leave on a trip Sunday morning, a
                       ELMORE v. OZMINT                      171
trip she never had the opportunity to undertake. Instead, on
Sunday, her car remained parked at her home. When her body
was discovered Monday afternoon, the television set was on
with a TV Guide open to Saturday evening. The Sunday and
Monday newspapers were lying in her driveway. In light of
this evidence, it is little wonder that the PCR court determined
that Elmore "has failed to show a reasonable probability that
had a pathologist be[en] retained in 1984, the result of the
proceeding would have been not guilty."

   Neither the magistrate judge nor the district court found
this conclusion to be unreasonable. The magistrate judge, for
instance, concluded that Elmore "has failed to show a reason-
able probability that the result would have been different."
And the district court pointed out that unlike Elmore’s expert,
Dr. Conradi — the forensic pathologist who performed Mrs.
Edwards’s autopsy and testified that the time of death was
likely Saturday night—"had first-hand information from the
autopsy which credibly supported her analysis," such as the
limited extent of rigor mortis present when she examined the
body. Moreover, the district court noted that Dr. Conradi
"took into account factors that [Elmore’s expert] assumed she
had missed, such as body temperature, the extent of decompo-
sition, and the fact that the body had been transported." In this
battle of the experts, it is hard to see how the majority could
dismiss the reasoned conclusions of every previous court and
declare that Elmore’s witness was the clear winner.

   Second, the majority claims that had defense counsel pur-
sued the theory that the police lied about discovering forty-
five of Elmore’s pubic hairs in Mrs. Edwards’s bed, there was
a reasonable probability that his client would have been
acquitted. See ante at 158-159. Once again, every court to
have previously considered the evidence has come to the
opposite conclusion. After hearing testimony from the SLED
agents who discovered the pubic hairs, the state PCR court
determined that they "credibly testified about the existence
and discovery of the hair." It then found that there was no
172                   ELMORE v. OZMINT
break in the chain of custody of that evidence, as the hairs
were secured in a zip lock bag at the crime scene and deliv-
ered to Lieutenant Earl Wells who kept them until trial. The
court concluded that Elmore’s "bare assertions" that there was
a break in the chain of custody raising the possibility of tam-
pering were "without merit" and dismissed this Strickland
claim.

   The magistrate judge similarly refused to find prejudice and
adopted the state court’s finding that Elmore "has not shown
a break in the chain of evidence with regard to the hair." The
district court reached the same conclusion. Noting that "the
PCR court made very specific factual findings regarding the
credibility of the state’s witnesses" and "the collection of
hairs from the victim’s bed" and had considered Elmore’s
arguments, it refused to overturn the state court’s determina-
tion that Elmore had not been prejudiced. Observing that
Elmore "has failed to establish that there was any break in the
chain of custody," it concluded that the PCR court’s determi-
nation here was simply "not a decision that was contrary to,
or involved an unreasonable application of clearly established
federal law." The majority should have followed that course
today.

   Third, the majority claims that defense counsel’s decision
not to investigate three unidentified fingerprints on Mrs.
Edwards’s toilet and exterior door frame was prejudicial. See
ante at 159. During the PCR proceedings, Elmore’s experts
argued that these prints formerly considered unidentifiable
were in fact identifiable, and not a match for Elmore. But as
the PCR court concluded, this did not result in any constitu-
tional prejudice. As it observed, the jury was well aware that
Elmore’s fingerprints were found only on Mrs. Edwards’s
outside doorframe and not within her house. Given that these
new arguments would have not told the jury anything new,
the PCR court concluded that Elmore’s prejudice argument
was so unconvincing as to "strain[ ] his own credibility."
                       ELMORE v. OZMINT                     173
   For similar reasons, the magistrate judge found that Elmore
was not prejudiced, noting that the experts at the PCR hear-
ings disagreed "about the ability to identify one of those
prints." The district court agreed and dismissed Elmore’s "as-
sertion that fingerprints of an unknown third party were found
at the crime scene" as "incorrect." In particular, it observed
that Elmore’s own expert could not compare the toilet print
with the victim’s fingerprints and consequently was unable to
rule out the distinct possibility that the print inside Mrs.
Edwards’s home was in fact Mrs. Edwards’s own.

   Fourth, the majority contends that defense counsel’s lack
of investigation into the presence of a Caucasian hair in "Item
T"—the material found on Mrs. Edwards’s chest that was
originally (and mistakenly) identified as blue fibers — was
prejudicial. See ante at 159 This evidence came to light late,
after most state post-conviction proceedings had come to a
close, and it ultimately extended litigation in state court by
several years and necessitated a separate opinion.

   That state court opinion, however, made clear that this new
evidence did not amount to much. To start, the PCR court
found that the initial failure to disclose the hair by SLED
Agent Wells was not intentional. As it observed, Elmore’s
"position that Agent Wells knowingly withheld this evidence
is refuted by . . . the fact that it was he, not another source,
who discovered the missing evidence and reported the discov-
ery" to the South Carolina Attorney General’s Office. In addi-
tion, Wells repeatedly "offered himself for cross examination"
in these new proceedings, but Elmore refused to take advan-
tage of the opportunity. As the PCR court concluded, "I do
not find that SLED Agent Wells knowingly failed to disclose
the hair evidence and accept his sworn statement that his pre-
vious testimony was incorrect but was based upon his then
recollection."

   Moreover, the state court observed that there was only one
strand of Caucasian hair in the set that did not belong to the
174                    ELMORE v. OZMINT
victim. Of course, a body lying on or flailing about the floor
is bound to pick up a stray hair or two. As the PCR court con-
cluded, "One hair from the victim’s body from the bedroom
floor that could have come from various sources does not
mandate a new trial." The magistrate judge reached a similar
conclusion and the district court did so as well, noting that a
"single third-party Caucasian hair found on the victim’s body
is greatly outweighed by the substantial evidence against
[Elmore]." As I will discuss in greater detail, that substantial
evidence includes the pubic hairs belonging to Elmore found
on the victim’s bed, the blood matching Mrs. Edwards’s
blood type found on Elmore’s clothes, his lack of a consistent
alibi for his whereabouts on Saturday night, his lie to the
police that he did not know Mrs. Edwards, and his confession
to his cellmate. Against this mountain of evidence, Elmore is
able to construct no more than a small hill.

   On each one of these four claims of prejudice, the state
PCR court, the magistrate judge, and the district court reached
the opposite conclusion from the one the majority puts forth
today. The majority, however, runs roughshod over these
findings, dismissing, for example, the circumstantial evidence
in support of Dr. Conradi’s analysis as "staged," ante at 158,
despite the fact that no court has ever found anything that
would support this extreme allegation. And even though the
majority admits that the "value of the toilet print to Elmore is
somewhat circumscribed," it still contends that defense coun-
sel’s decision not to investigate this print fully resulted in
prejudice because it constituted "evidence of police ineptitude
and deceit." 
Id. at 159. I 
have no idea where the majority is
coming up with these things. Disparaging rhetoric cannot sub-
stitute for evidence, the foundation on which the PCR court’s
factual findings rest. Nor can it displace the credibility deter-
minations that are uniquely a trial court’s to make. Such spec-
ulative reasoning does not exhibit deference of any kind, let
alone the doubly deferential standard of review mandated by
Strickland and AEDPA.
                       ELMORE v. OZMINT                     175
                              B.

   The majority not only disregards the considered judgment
of three separate courts, but does so without hearing a single
second of witness testimony. But with only the written record
in front of us, we as appellate judges are in the worst possible
position to evaluate witness credibility. As the Supreme Court
has observed: "Face to face with living witnesses the original
trier of the facts holds a position of advantage from which
appellate judges are excluded. In doubtful cases the exercise
of his power of observation often proves the most accurate
method of ascertaining the truth." Marshall v. Lonberger, 
459
U.S. 422
, 434 (1983) (citation omitted). We must therefore
always approach a lower court’s factual determinations with
an eye toward our inherent limitations. This is especially true
on collateral attack, where principles of comity and federal-
ism command that we grant the factual findings of state courts
great respect. See Miller-El v. Cockrell, 
537 U.S. 322
, 339-40
(2003).

   In this case, however, these warnings have fallen upon deaf
ears. Despite the fact that every jury and judge to have heard
witness testimony has not been convinced of Elmore’s inno-
cence, the majority suggests that he was an innocent man
framed by the police and prejudiced by his attorney’s sup-
posed failings. But unlike the two juries that convicted
Elmore or the state PCR court that rejected his Strickland
claims, the majority has observed not one of the following
witnesses testify:

    •   Jimmy Holloway, the neighbor of Mrs. Edwards
        who discovered her mutilated body and the man
        the majority now suggests is responsible for her
        murder. See ante at 132, 158.

    •   Dr. Sandra Conradi, the forensic pathologist who
        performed Mrs. Edwards’s autopsy and estimated
        that her time of death was Saturday night.
176                     ELMORE v. OZMINT
      •   Dr. Jonathan Arden, a New York forensic pathol-
          ogist who neither performed Mrs. Edwards’s
          autopsy nor spoke with Dr. Conradi, but who
          concluded that the likelihood of a Saturday night
          time of death was highly unlikely, though not
          "physically impossible."

      •   Lieutenant Frank DeFreese, the SLED fingerprint
          analyst who saw the pubic hairs in Mrs.
          Edwards’s bed as well as lifted Elmore’s finger-
          print from the frame of the back door to Mrs.
          Edwards’s home and an officer the majority now
          suggests committed perjury. See 
id. at 158-159.

      • 
  Four officers of the Greenwood Police Depart-
          ment who confirmed DeFreese’s impression that
          Elmore’s fingerprint on the door frame was "re-
          cent" or "fresh." See 
id. at 17-18.

      • 
  Ira Parnell, the SLED agent who assisted
          DeFreese at the crime scene by collecting forty-
          five of Elmore’s pubic hairs from Mrs.
          Edwards’s bed and who, according to the PCR
          court, "credibly testified about the existence and
          discovery of the hair."

      •   Lieutenant Thomas Henderson, the SLED agent
          who questioned Elmore about the blood on his
          shoes and the man the majority now suggests
          "plant[ed]" that evidence. See 
id. at 94.

      • 
  John C. Barron, the SLED serologist who deter-
          mined that some of the blood on Elmore’s cloth-
          ing matched Mrs. Edwards’s blood type and
          testified "without equivocation" that he main-
          tained control of the stained clothing until trial.

      •   Rodger Morrison, an Alabama serologist who
          criticized Barron’s analysis and hypothesized that
                   ELMORE v. OZMINT                        177
    further testing could have ruled out the possibility
    that Mrs. Edwards’s blood was on Elmore’s
    clothes. But see infra note 2 (observing that DNA
    testing has since confirmed that the blood on
    Elmore’s clothes matched Mrs. Edwards’s DNA).

•   Hayward Starling, a self-employed forensic sci-
    entist who criticized SLED’s investigative proce-
    dures and claimed that the print lifted from the
    blood-smeared toilet was identifiable, but who
    "could not eliminate" the possibility that the print
    belonged to Mrs. Edwards.

•   Lieutenant Earl Wells, the SLED chemist who
    examined the hair evidence and an agent the
    majority now accuses of "negligently or know-
    ingly misreport[ing]" evidence despite the PCR
    court’s findings to the contrary. See ante at 159.

•   Skip Palenik, a self-employed microscopist who
    argued that the number of pubic hairs found on
    Mrs. Edwards’s bed was atypical and unusual.

•   James Gilliam, the inmate who testified that
    Elmore confessed to him that "he went there to
    rob the lady, and she started screaming, so he had
    to kill her," and whose later recantation the PCR
    court found lacked credibility.

•   Arlie Capps, the jail administrator Elmore
    accuses of inducing Gilliam to testify falsely but
    whose testimony the PCR court found to be "con-
    sistently credible."

•   Sergeant Alvin Johnson, the police officer who
    testified that neither he nor any other officer had
    ever discussed Elmore with Gilliam prior to
178                      ELMORE v. OZMINT
          receiving Gilliam’s letter detailing Elmore’s con-
          fession.

      •   Mary Alice Harris (nee Dunlap), the former girl-
          friend of Elmore who threw his shirt in the trash
          when he appeared at her mother’s home with a
          swollen lip after midnight on Sunday, January 17.

      •   Donnie, Susan, and Frances Mosley, the mem-
          bers of Dunlap’s family who each confirmed
          Elmore’s time of arrival that evening.

      •   Major James Coursey, the police officer who tes-
          tified that at the time of his arrest, Elmore repeat-
          edly denied knowing Mrs. Edwards until
          confronted with one of her checks made out to
          him.

      •   Dr. Jonathan Venn, the psychologist who con-
          tended that Elmore’s statement that he did not
          know Mrs. Edwards was insignificant in light of
          his memory problems.

      •   Geddes Anderson, John Beasley, and Billy Gar-
          rett, the attorneys who represented Elmore in his
          three trials and who testified extensively about
          their defense strategies.

      •   Edward Lee Elmore, the defendant himself.

   Even the above sources do not exhaust the list. Despite not
hearing a second of testimony from this roster of witnesses—
some of whom testified at trial, some of whom testified at the
PCR proceedings, and some of whom testified at both—the
majority treats Elmore’s experts who never participated in the
original investigation as unbiased oracles of truth, see ante at
36-67, while suggesting that some of the prosecution’s key
witnesses "were outright dishonest." 
Id. at 159. This 
analysis
                      ELMORE v. OZMINT                     179
ignores the Supreme Court’s admonition that we are ill-
equipped to engage in such sensitive credibility determina-
tions. See 
Marshall, 459 U.S. at 434 
("[F]ederal habeas courts
[have] no license to redetermine credibility of witnesses
whose demeanor has been observed by the state trial court,
but not by them.").

   Had the members of the majority actually been in court and
then rendered its string of pejorative assessments, I would be
prepared to credit them. But unless we are prepared to hold
that trials and hearings are mere useless exercises, I would
respect the views of those who were there. Without ever hear-
ing a shred of witness testimony, the majority has effectively
decided to take on the role of a jury in the sky and acquit
Elmore. It does so despite the fact that no court before us has
been in a worse position to evaluate Elmore’s conviction and
no court before us has doubted it. To invalidate it on largely
factual grounds, as the majority does today, contravenes
AEDPA and all that it stands for.

                              C.

   Finally, the majority disregards the actual evidence sup-
porting Elmore’s conviction. Given the strength of the case
against Elmore, it is hard to believe that even a flawless
defense attorney would have been able to obtain an acquittal
here. And it is even harder to believe that any jury would have
accepted the conspiracy theory concocted by Elmore and
embraced by the majority today. Elmore’s conviction has
withstood nearly three decades of intense scrutiny from multi-
ple juries and judges for the best of reasons: there is so much
evidence that supports it.

                              1.

   The case against Elmore was anything but a flimsy one. To
start with, the physical evidence points directly to his guilt.
The state PCR court found that forty-nine hairs were recov-
180                        ELMORE v. OZMINT
ered from Mrs. Edwards’s bed. According to Lieutenant
Wells, two of those hairs were consistent with Mrs.
Edwards’s head hairs, two of them were consistent with her
pubic hairs, and forty-five of them were consistent with
Elmore’s pubic hairs. Elmore has since conceded that those
forty-five pubic hairs belong to him. Ante at 48-49 n.16. His
thumbprint was also found on the exterior frame of the back
door to Mrs. Edwards’s home and multiple police officers tes-
tified that the print was relatively "fresh." See 
id. at 17-18.
And 
the jeans and shoes that Elmore admitted wearing on Sat-
urday were spattered with blood that matched Mrs. Edwards’s
blood type, but not his own. On cross-examination, he could
give no explanation of where this blood came from.2

   If that were not enough, the prosecution also provided an
overwhelming amount of circumstantial evidence of Elmore’s
guilt. First, Elmore had no consistent alibi for Saturday eve-
ning, the time in which Mrs. Edwards was murdered. On the
day of his arrest, Elmore signed a written statement in front
of Lieutenant Henderson stating that he was with his girl-
friend Mary Alice Dunlap at a K-Mart "until nine-thirty p.m.,"
when she was picked up by her brother. According to this
  2
    DNA testing now confirms that the blood on Elmore’s jeans and shoes
fully or partially matches Mrs. Edwards’s DNA. The majority dismisses
this latest installment of inculpatory evidence as "consistent with Elmore’s
position that the SLED agents . . . planted Mrs. Edwards’s blood on his
clothing." See ante at 128. It also assumes without deciding that Cullen v.
Pinholster, 
131 S. Ct. 1388 
(2011), precludes consideration of this evi-
dence given that it was developed following the first and second PCR
orders. See 
id. at 126. For 
the sake of argument, I will address the majority
on its own terms and rely only on the evidence available at the time of
these PCR proceedings. Still, it is worth noting the lengths to which the
majority has gone to grant Elmore relief. In the face of evidence that
would seem to put Elmore’s guilt beyond question, the majority embraces
the only possible explanation that would preserve its claim he was inno-
cent: the unfounded theory that he was framed by the police. At this point,
I am skeptical that any evidence, no matter how probative, would ever be
able to shake the majority’s unquestioning and ill-supported faith in
Elmore’s innocence.
                       ELMORE v. OZMINT                      181
statement, Elmore then "stop[ped] only for a minute to get a
beer and then went straight on" to see his girlfriend and her
family, with whom he then stayed until "sometime before
midnight." But at trial, Dunlap and her family members testi-
fied that Elmore left them a little before 10:00 p.m. and did
not return until 12:30 in the morning, nursing a newly swollen
lip. On the stand, Elmore changed his story as well, claiming
that he "stayed awhile . . . talking" at a convenience store
before going to see Dunlap "around ten-thirty or eleven." Evi-
dently the jury — which again was far better positioned to
evaluate Elmore’s credibility than the majority — did not find
these shifting alibis to be persuasive.

   What is more, Elmore lied to the police about even know-
ing the victim. It is undisputed that Elmore knew Mrs.
Edwards, having done household work for her on several
occasions. In fact, on the day he was arrested he had a piece
of paper in his wallet with her name and number on it. But
when Elmore was arrested, he denied knowing who she was
until the officers confronted him with checks she had written
to him, at which point he changed his tune. He then told the
arresting officer that "if in fact he did kill Mrs. Edwards, that
he did not remember doing it."

   Finally, this already strong case was further bolstered by
Elmore’s confession to his cellmate, James Gilliam. When
Elmore was arrested, Gilliam was in jail for receiving stolen
goods, and the two knew each other from having once lived
in the same apartment complex. Gilliam testified that Elmore
told him about how he had gone to Mrs. Edwards’s house to
rob her but "the lady started screaming and she wouldn’t stop
and so he had to kill her." Elmore also queried Gilliam about
whether his efforts at eliminating the forensic evidence of the
crime had been successful. Specifically, Elmore described
how he had wiped his fingerprints and asked Gilliam "if you
had sex with somebody and you washed up, could you tell
that you have had sex with that person." Gilliam wrote a letter
182                    ELMORE v. OZMINT
to the police about this conversation and testified about it con-
sistently throughout Elmore’s three jury trials.

   But in the state PCR proceedings, Gilliam changed course,
testifying that Arlie Capps, a jail administrator, had come to
him offering a deal if Gilliam could get a confession from
Elmore and that Gilliam had invented the confession to reap
those benefits. One of Gilliam’s two stories is false, of course.
But which? The question turns on credibility and thus funda-
mentally belongs to the state PCR court. See, e.g., Wilson v.
Ozmint, 
352 F.3d 847
, 858 (4th Cir. 2003) ("Credibility deter-
minations . . . are presumed to be correct absent clear and
convincing evidence to the contrary.") (internal quotation
marks and citation omitted). The PCR court heard extensive
evidence on this issue, including testimony from jail adminis-
trators, other prisoners, and Gilliam himself. Its conclusion
was emphatic: "Why Gilliam chose to recant his testimony is
not evident, but that does not mean that his new version has
credibility and I hold that it does not." In particular, it found
that "there has been no showing that there was any ‘deal.’"
Probing the inconsistencies in Gilliam’s new story, the court
called his recantation "illogically conflicting and incredible"
and added that "[t]he gross speculation that Gilliam’s testi-
mony was scripted is pure fiction."

   Thus, even if Elmore’s counsel had provided ineffective
assistance with respect to a particular evidentiary issue, the
likelihood that that error changed the outcome of the trial is
hardly "substantial." See 
Cullen, 131 S. Ct. at 1403
. The
state’s case against Elmore was built on numerous pieces of
evidence which subsequent findings did not draw into ques-
tion. The irony of this case is that the majority lambasts the
state PCR court for "considering less than the totality of the
evidence," ante at 155, while ignoring or diminishing the
state’s total arsenal of evidence against Elmore at the same
time. See 
id. at 160 (dismissing 
the "bloodspots" on Elmore’s
clothes, his "thumbprint on the back door frame," the evi-
dence of his "guilty conscience," and "Gilliam’s account of
                        ELMORE v. OZMINT                       183
Elmore’s spontaneous jailhouse confession" as "flimsy"). By
attempting to divide and conquer discrete evidentiary issues
while ignoring the rest of prosecution’s case, it is the majority
— and not the PCR court — which has "unreasonably dis-
counted evidence" by "minimizing its import and evaluating
it piecemeal." See 
id. at 155. The 
unfairness of calling the
state court out for what is manifestly the majority’s own fail-
ing only underscores the injustice of today’s decision.

                                2.

   In the face of all this evidence, the majority is forced to fall
back on Elmore’s conspiracy theory that multiple members of
the South Carolina law enforcement system framed Elmore.
Once again, this accusation is not supported by the findings
of any previous court. According to this account, Officers
Coursey and Henderson removed the incriminating pubic
hairs from Elmore while he was detained and then Agents
Parnell and DeFreese lied about recovering this evidence from
Mrs. Edwards’s bed. See 
id. at 48-49 n.16, 
132-133. Officer
Henderson then "planted" blood matching Mrs. Edwards’s
blood type on Elmore’s "pants and shoe." See 
id. at 95, 127.
What is more, Agent DeFreese misreported the fingerprints
on Mrs. Edwards’s toilet and exterior door frame as unidenti-
fiable, yet another example, as the majority puts it, of "police
ineptitude and deceit." 
Id. at 159. According 
to Elmore, these
prints belonged neither to him nor to Mrs. Edwards and would
have been exculpatory if DeFreese had been honest. 
Id. at 35.
Finally, 
SLED Agent Wells "negligently or knowingly misre-
ported" the contents of Item T as being solely blue fibers. 
Id.
at 159. Ultimately, 
the majority concludes, the "evidence
leads one to distrust the competence or motivations of the
police investigators." 
Id. at 160.

   While 
this story may make for a good movie, it does not
stand up as a piece of legal analysis or bear resemblance to
reality. For one, the majority reverses multiple factual find-
ings, including witness credibility determinations, made by
184                    ELMORE v. OZMINT
the state PCR court. Once again, we can only overcome these
factual findings "by clear and convincing evidence," 28
U.S.C. § 2254(e)(1), and we can only dismiss these credibility
determinations if the PCR court made a "stark and clear"
error. Cagle v. Branker, 
520 F.3d 320
, 324 (4th Cir. 2008).
Such showings have not been made here.

   With regard to the pubic hairs, Agents Parnell and
DeFreese testified that Agent Parnell collected that evidence
from Mrs. Edwards’s bed. The majority attacks this testimony
by treating the quantity of hair found on Mrs. Edwards’s bed
with incredulity and imputing ill motives for the agents’ fail-
ure to photograph the bed or put the sheets in the record. See
ante at 158-159. But the PCR court that heard this testimony
expressly found that Parnell and DeFreese "credibly testified
about the existence and discovery of the hair."

   There was no "clear and convincing" evidence suggesting
this determination was incorrect. 28 U.S.C. § 2254(e)(1).
Agent Parnell consistently testified that he discovered "almost
a rectangular area of hair" that was "approximately thirty
inches across by approximately eighteen inches up and down"
and "running diagonally across the bed," and the PCR court
found this testimony to be credible. Parnell also repeatedly
admitted that his decision not to photograph the bed was an
"oversight," but not an act done for conspiratorial reasons.
Parnell’s account was additionally corroborated by Agent
DeFreese, who, as the PCR court found, "testified that he was
present and assisted Agent Parnell when the hair was seized
from the victim’s bed." And far from plotting to lie about the
pubic hairs to incriminate Elmore, Parnell testified that he was
"mistakenly under the opinion they were Caucasian" until
Agent Wells informed him otherwise.

  As for the decision not to take the sheets into evidence, Par-
nell explained that he believed they had little evidentiary
value given the lack of stains. This is hardly proof of a police
conspiracy. The PCR court put it directly: "the speculative
                      ELMORE v. OZMINT                     185
presentation of the other witnesses that they normally seize
such items does not create a Sixth Amendment violation."
And as for the quantity of pubic hairs, Agent Wells explained
during Elmore’s 1984 trial that only four of the hairs fell out
naturally; the other forty-one were pulled out by force. One
can only imagine the kind of battle between a rapist and his
victim that would lead to such an injury.

   Turning to the blood on Elmore’s clothes, the PCR court
rejected the notion that Agent Henderson had planted the
incriminating blood on the basis of Agent Barron’s testimony.
The state court found that Barron testified "[c]learly" and
"without equivocation" he "would not have given the [clothes]
stains to Tom Henderson," but instead maintained control
over the evidence until trial. The majority nevertheless seizes
on a dispute in the PCR proceedings over whether the labora-
tory records suggest that Henderson removed these items
from the lab prior to Barron’s analysis. See ante at 61, 94-95.
But the PCR court had already resolved this dispute in favor
of Barron. After hearing witness testimony on the issue, the
PCR court found that Elmore’s clothes were brought to the
SLED lab on January 20, 1982, whereupon "Barron received
the evidence and cut out the specimens prior to the return of
the coat and jeans to Tom Henderson" on February 3. The
majority’s dismissal of the state court’s acceptance of Bar-
ron’s interpretation without a compelling reason for doing so
is yet another example of its refusal to show a modicum of
deference.

   As for Agent DeFreese’s alleged misrepresentation of the
fingerprint evidence, the state PCR court treated his earlier
testimony that the prints were unidentifiable as an honest mis-
take at worst. While noting that it was "regrettable" that
Agent DeFreese concluded the fingerprint on Mrs. Edwards’s
door frame was unidentifiable in 1982, the PCR court con-
cluded that fact "does not support [Elmore’s] rhetorical
assault on his reporting and testimony." As the state court
pointed out, DeFreese simply used a higher threshold for
186                    ELMORE v. OZMINT
identifying prints than one of Elmore’s experts did. It then
noted that even Elmore’s own experts disagreed over how
many prints were identifiable, but that this fact did not mean
they somehow perjured themselves. After "viewing the credi-
bility of the witnesses based upon the entire record," the PCR
court determined that it "must reject [Elmore’s] assertions"
that DeFreese testified falsely.

   As for Agent Wells’s claim that the contents of Item T
were solely blue fibers, the PCR court found that he did not
"knowingly fail[ ] to disclose" this evidence. Of course, it is
inconvenient for the majority’s conspiracy theory that it was
Agent Wells himself "who discovered the missing evidence
and reported the discovery" to the South Carolina Attorney
General’s Office, see ante at 112, and that Wells repeatedly
"offered himself for cross examination." But inconvenient
facts are apparently momentary obstacles for the majority,
which once again, without listening to any testimony, has
decided peremptorily that law enforcement officers are bad
actors despite findings to the contrary from the judicial officer
who actually heard them.

   Apart from ignoring its proper role in the context of collat-
eral attack, the majority also fails to provide a plausible
motive for this supposed conspiracy. At most, it claims that
Henderson planted blood on Elmore’s clothes because his
mother was "a longtime neighbor of Mrs. Edwards" as well
as an acquaintance of Jimmy Holloway. See ante at 44-45, 94.
But it never explains why these local connections would com-
pel Henderson to single out Elmore of all people to take the
blame. Nor does it explain why four other law enforcement
officers — Coursey, Parnell, DeFreese, and Wells — would
decide to go along with Henderson’s scheme. And it does not
begin to explain why a jail administrator like Arlie Capps
would induce an inmate to perjure himself in order to convict
Elmore. The majority neither asks these questions nor pro-
vides any answers.
                      ELMORE v. OZMINT                     187
                              3.

   If this rampant speculation were not enough, the majority
then slanders a deceased and presumptively innocent man by
essentially accusing him of the grisly murder of Mrs.
Edwards. Following Elmore’s lead, the majority suggests that
Jimmy Holloway murdered his longtime neighbor and friend
and then "staged" the "circumstantial evidence of a Saturday
night death." Ante at 158. This charge is, to quote the PCR
court, a "shocking assertion" and "gross speculation."

   There are three possible reasons for pinning this heinous
crime on Holloway. Not one stands up to the slightest scru-
tiny. First, according to Elmore’s expert Vincent Scalise, Hol-
loway’s conduct surrounding his discovery of his mutilated
neighbor was "very, very strange" and ultimately "suspect."
But what exactly did Holloway do to incur such suspicion?
On Monday, January 18, he stopped by Mrs. Edwards’s house
to check on his elderly neighbor. He noticed the Sunday and
Monday newspapers laying on the ground, despite the fact she
had told him she was leaving for a trip on Sunday morning.
Concerned that she might be ill, Holloway knocked on the
back door, which suddenly opened. Entering the residence, he
noticed that the house was at high temperature and that the
TV was on at a high volume. Venturing further, he discovered
that Mrs. Edward’s commode was stained with blood and that
there was a knife and large amount of blood on the bedroom
floor. At that point, Holloway went next door to the home of
Mrs. Clark — another one of Mrs. Edwards’s neighbors — to
"see if something had happened to her and [if] she was in the
hospital." Upon finding out Mrs. Edwards was not in the hos-
pital, Holloway returned to the house with Mrs. Clark in tow.
To avoid contaminating the scene, he carefully stepped
around the pool of blood and donned a pair of woolen gloves
before he opened the closet door. After he discovered his
neighbor’s mutilated body stuffed in the closet, Holloway left
the house with Mrs. Clark and they called the police.
188                   ELMORE v. OZMINT
   As the PCR court found, this behavior revealed nothing
more than the fact that Holloway was a "legitimately con-
cerned neighbor who feared that something had happened" to
an elderly woman and friend. Even Scalise conceded as much,
noting that many of Holloway’s actions on Monday were
those of a concerned neighbor and that it was "not unusual"
for someone coming across a crime scene to get another per-
son before proceeding any further. We should be the last to
presume to dictate what the normal response of a worried
neighbor stumbling upon evidence of foul play should be, par-
ticularly when the only court to hear testimony on the matter
found that it was normal.

   Second, as the majority points out, Agent Henderson "con-
firmed that Holloway had been an early suspect." 
Id. at 43.
But 
the only reason for that classification was that Holloway
discovered the body. According to Scalise himself, as a matter
of basic police procedure, "in most cases" the first suspect is
the "person that finds the body." There was nothing more to
suggest Holloway’s guilt, and Henderson soon ruled him out
as a suspect as the evidence pointed increasingly to Elmore.

   In any event, it would be helpful if the majority could
explain exactly why Holloway would ever brutally rape and
murder his longtime neighbor and friend. But it offers no pos-
sible motive to support this astonishing charge, nor is there
any indication of one in the record. In contrast, Elmore had
a very clear reason for murdering Mrs. Edwards that Saturday
night. As he confessed to Gilliam, "he went there to rob the
lady, and she started screaming, so he had to kill her."

   The third and perhaps real reason for Elmore to pin the
murder on Holloway is the simple fact that he is no longer
alive. Unlike Elmore, who is still with us and represented by
vigorous counsel, Holloway can no longer speak for himself
nor has he anyone to argue on his behalf. But while it may be
tempting to purchase Elmore’s freedom at the cost of an inno-
cent man’s good name, it is profoundly unjust.
                      ELMORE v. OZMINT                     189
                              D.

   At the end of the day, no less than three separate courts
have reviewed and rejected Elmore’s claims of prejudice. And
not one of them has ever made any finding that would suggest
that any alleged errors by Elmore’s counsel were prejudicial.
Now, for the first time since Elmore’s conviction over a
quarter-century ago, two fine colleagues have come to the
opposite conclusion without hearing a minute of witness testi-
mony and in the face of all the evidence available. In spinning
this tale of deceit, fabrication, perjury, and corruption, the
majority has unfairly impugned the South Carolina criminal
justice system — directly in the case of its law enforcement
officers and indirectly in the case of the prosecutors and
judges who turned a blind eye to malfeasance of this magni-
tude. Seldom have so many been besmirched by so few. If
this framing of Elmore actually took place, it would be worth
all the opprobrium the majority could heap upon it and more.
But the legal system places its faith in evidence and those
who see and hear it. While no system of factual findings is
perfect, the regime of appellate highhandedness and specula-
tion is far worse. This road is no path to justice, not in any
whole and rounded sense. In light of all the evidence avail-
able, the notion that the state PCR court incorrectly applied
Strickland is simply implausible. The idea that it committed
an "error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement," 
Richter,
131 S. Ct. at 787
, is beyond the pale.

                             III.

   This sad decision is only compounded by the fact that it
could have been so easily averted had the majority paid atten-
tion to controlling precedent. Just last term, the Supreme
Court in Harrington v. Richter, 
131 S. Ct. 770 
(2011),
reversed a federal appellate court’s use of the writ of habeas
corpus to set aside a conviction on the grounds of ineffective
assistance of counsel. I suppose we should be grateful that
190                    ELMORE v. OZMINT
this recent and relevant case merits a courtesy mention by the
majority, for that is all that it gets.

   Richter could not be more on point. Like Elmore, Richter
was convicted in state court for murder despite his contention
that another person — in his case, a drug dealer named Joshua
Johnson — manipulated the physical evidence against him.
See Richter v. Hickman, 
578 F.3d 944
, 976 (9th Cir. 2009) (en
banc). Like Elmore, Richter sought relief from the state court
system following his conviction on the basis of Strickland,
arguing that his counsel provided ineffective assistance "for
failing to present expert testimony" on the forensic evidence.
Richter, 131 S. Ct. at 783
. The California Supreme Court
denied relief. 
Id. Then, like Elmore, 
Richter filed a habeas
petition in federal district court, which again denied him
relief. And, like Elmore, he was finally able to find judges
who agreed with his position on appeal. 
Id.

   The Supreme Court 
reversed. It was emphatic in its holding
that "habeas corpus is a guard against extreme malfunctions
in the state criminal justice systems, not a substitute for ordi-
nary error correction through appeal." 
Id. at 786 (internal 
quo-
tation marks and citations omitted). Applying the doubly
deferential approach mandated by Strickland and AEDPA, the
Court concluded that the state court could have determined
that Richter’s counsel was effective even though he had "not
consulted forensic . . . experts or introduced expert evidence."
Id. at 788. As 
the Court observed, "Reliance on ‘the harsh
light of hindsight’ to cast doubt on a trial that took place now
more than 15 years ago is precisely what Strickland and
AEDPA seek to prevent." 
Id. at 789 (quoting 
Bell v. Cone,
535 U.S. 685
, 702 (2002)).

   More importantly, the Supreme Court then held that the
state court could reasonably have found that Richter was
unable to show prejudice. The Court noted that apart from the
forensic evidence, there was enough circumstantial evidence
available to allow a state court to eliminate the possibility that
                       ELMORE v. OZMINT                     191
Richter was prejudiced. Noting Richter’s "shifting story" and
"the lack of any obvious reason" for Johnson to tamper with
the physical evidence, the Court concluded that there was
"ample basis for the California Supreme Court to think any
real possibility of Richter’s being acquitted was eclipsed by
the remaining evidence pointing to guilt." 
Id. at 792.

   The 
majority references Richter, as it must, but then pro-
ceeds to distinguish the case on the ground that the forensic
evidence here "was always and obviously vital to the State’s
case." Ante at 146. My colleagues miss the larger point. If the
California Supreme Court’s application of Strickland in Rich-
ter was reasonable, then the South Carolina PCR court’s
application of Strickland here must be so as well.

   For one, the PCR court’s opinion was far better supported
than the state court opinion in Richter. Whereas the California
Supreme Court dismissed Richter’s claim for relief in a one-
sentence order, the PCR court here issued a 183-page opinion
responding to Elmore’s numerous claims. While a state court
need not provide a justification for its decision for the pur-
poses of § 2254(d), 
Richter, 131 S. Ct. at 784-85
, when it "ex-
plain[s] its reasoning with some care, it should be particularly
difficult to establish clear and convincing evidence of error."
Sharpe v. Bell, 
593 F.3d 372
, 378 (4th Cir. 2010).

   More importantly, on the question of prejudice, the circum-
stantial evidence in Elmore’s case provided more than an
"ample basis" for the PCR court to conclude that any chance
of Elmore’s acquittal "was eclipsed by the remaining evi-
dence pointing to guilt." See 
Richter, 131 S. Ct. at 792
. In
addition to Elmore’s "shifting story" regarding his where-
abouts on Saturday night as well as "the lack of any obvious
reason" for Holloway to murder Mrs. Edwards and the police
to frame an innocent man, see 
id., the already-strong circum-
stantial evidence against Elmore was cemented, inter alia, by
his confession to Gilliam, his pubic hair on Mrs. Edwards’s
bed, and the blood on his clothes matching Mrs. Edwards’s
192                    ELMORE v. OZMINT
blood type. The problem with Elmore’s case is the sheer
strength of the evidence against him, not the failure of counsel
to remove that boulder from the road. Perhaps the day will
come when we all realize that habeas corpus confers no free-
wheeling warrant to retry a case on appeal, see 
id. at 786, and
the Supreme Court can rest from reiterating this basic point in
case after case. Unfortunately, today’s decision shows that we
still have a long way to go.

                              IV.

   Thus far, I have discussed facts and deference, for those are
the most concrete failings of the majority’s decision today.
But the real injustice of this case occurs on an individual
level. Thanks to the majority’s efforts, Mr. Elmore may go
free because the crime he committed took place almost three
decades ago. Perhaps Elmore believes that because so much
time has passed since the murder, he should simply be let go.

   My distinguished colleagues in the majority respond to the
dissent with rhetoric and a protestation that they are not doing
what in fact they are doing—overturning factual findings and
credibility determinations of the state system that painstak-
ingly heard the evidence in this case. But at the end of the
day, our system is indeed grounded on facts and evidence. If
the state courts had defaulted in their job, that would be one
thing, but it is hard to find a case that received a more thor-
ough review under the well-settled Strickland standard than
this one did. If respect is not accorded the careful conclusions
and precise findings of the state court in the case at bar, then
I am hard-pressed to see the circumstances in which the
majority would extend respect. Contrary to my brothers’
rejoinder, I have not the slightest hesitation in embarrassing
any person or institution so long as that embarrassment is
grounded in the raw materials of judicial process, not dis-
pensed from the speculative perch on which we sit. The
majority says it doesn’t "credit Elmore’s evidence," ante at
163, but it discredits the courts assigned to weigh that evi-
                       ELMORE v. OZMINT                      193
dence and assess it. Visiting reputational harm is not some-
thing federal courts do lightly. Before insinuating that law
enforcement officers are "inept and corrupt," 
id. at 162, or
that "the real perpetrator was Holloway," 
id. at 163, the
majority should be able to point to some finding or some rul-
ing by those who actually heard testimony that that might
have been the case. It is little enough to ask.

   Before this court grants Elmore relief, we should pay pass-
ing thought as to what happened to Dorothy Edwards on the
night she was raped and murdered. According to Dr. Sandra
Conradi, the forensic pathologist who performed Mrs.
Edwards’s autopsy, the body of the seventy-five-year-old vic-
tim "was covered with injuries of all sorts, including stab
wounds, blunt traumatic injuries," "abrasions," and "bruises."
Her lower arms were extensively damaged, most likely from
her attempts to shield herself from attack. Despite her resis-
tance, she was stabbed repeatedly in the head and neck and
suffered multiple lacerations to her ears as well as the inside
of her mouth. Her left cheek was crushed in as well. She also
sustained thirty-three lesions on her chest area, most likely
inflicted with a pair of bottle tongs, and two-thirds of those
injuries occurred prior to her death. Her ribs were fractured,
the front part of her chest had caved in, and her right lung was
torn. After estimating Mrs. Edwards sustained roughly
"seventy-five separate injuries," Dr. Conradi concluded that
she could not recall, in her "fifteen years of experience, seeing
as much trauma and as varied trauma as in this particular
case."

   The more heinous the crime, the more necessary it becomes
not to lash out and affix blame, but the long, thorough layers
of review accorded Mr. Elmore’s case do not portray a system
acting in vengeance or in haste. It is right and good to believe
in mercy and forgiveness for those who commit even the most
cruel and brutal acts. But that redemption is not rightfully
ours to bestow, and the criminal justice system does not serve
its own humane, protective purposes by slipping into amnesia
194                   ELMORE v. OZMINT
on something like this. Law does not permit it, nor should it.
Not on this. Not on this.

  I would affirm the judgment.