Adoption-with-Review: South Carolina Upholds Party-Drafted PCR Orders and Reaffirms Prejudice-Driven Mitigation Review in Capital Cases

Introduction

In Marion Alexander Lindsey v. State, Opinion No. 28304 (S.C. Nov. 5, 2025), the Supreme Court of South Carolina affirmed, in result, the denial of post‑conviction relief in a capital case arising from a 2002 domestic homicide committed in a public place—the Inman Police Department parking lot. The case presents two issues with statewide significance:

Whether a post‑conviction relief (PCR) court violates a remand order or the applicant’s rights by adopting the State’s proposed order—particularly when the original order had been vacated for lack of compliant findings.
Whether trial counsel rendered ineffective assistance in investigating and presenting a penalty‑phase mitigation case in a death penalty prosecution.

The Court reaffirms that while PCR judges are encouraged to write their own orders in capital cases, they may adopt a party’s proposed order if they (1) ensure both sides have notice and an opportunity to respond and (2) carefully review the order before signing, and if the order contains sufficiently specific findings and conclusions on each claim. On the merits, the Court declines to grant a new sentencing proceeding, holding that even assuming certain deficiencies, Lindsey did not show Strickland prejudice: there is no reasonable probability that the jury would have returned a life sentence if counsel had introduced the additional mitigation presented at the PCR hearing.

Summary of the Opinion

Adoption of proposed orders after remand: The PCR court did not violate South Carolina law or the Supreme Court’s 2014 remand order by readopting the State’s proposed order. Adoption is permissible so long as opposing counsel has notice and an opportunity to respond and the court carefully reviews the order before signing. The amended order included issue‑by‑issue findings and conclusions, satisfying Pruitt, Hall, and S.C. Code § 17‑27‑80.
Ineffective assistance of counsel – mitigation:
- The Court acknowledged trial counsel’s mitigation development was late and that the PCR court erred by attributing a “strategy” for not calling a prison adaptability expert without record support. But the Court found no Strickland prejudice overall.
- Key mitigation presented at PCR—family and social history (including abject poverty, violence exposure, and mental health history), additional details of depression and suicide, and prison adaptability—was materially cumulative or not reasonably likely to change at least one juror’s vote when weighed against the aggravating circumstances.
- The Court reiterated that the ABA Guidelines are helpful “guides,” not binding mandates; performance is measured by objective reasonableness under Strickland and Bobby v. Van Hook.
Disposition: PCR denial affirmed in result.

Analysis

Precedents and Authorities Cited and Their Roles

Pruitt v. State, 310 S.C. 254, 423 S.E.2d 127 (1992): Emphasizes the necessity of specific findings of fact and conclusions of law in PCR orders to facilitate review. The Court used Pruitt to demand a compliant order on remand and to assess whether the amended order satisfied statutory and case-law requirements.
Hall v. Catoe, 360 S.C. 353, 601 S.E.2d 335 (2004): Encourages PCR judges in capital cases to draft their own orders but acknowledges widespread, acceptable practice of adopting party-drafted orders if carefully reviewed. Hall anchors the Court’s acceptance of adoption-with-review in a death case.
S.C. Code Ann. § 17‑27‑80: Statutory mandate that a PCR court must enter specific findings of fact and conclusions of law on each issue. The Court found compliance in the amended order.
Strickland v. Washington, 466 U.S. 668 (1984): Governs ineffective assistance claims with its two-pronged deficiency and prejudice test; prejudice in a capital sentencing context asks whether there is a reasonable probability at least one juror would have chosen life if the evidence had been presented.
Council v. State, 380 S.C. 159, 670 S.E.2d 356 (2008); Jones v. State, 332 S.C. 329, 504 S.E.2d 822 (1998): Frame the death-sentencing prejudice standard and reiterate that added, “fancier” mitigation does not establish prejudice absent a reasonable probability of a different sentence.
Bobby v. Van Hook, 558 U.S. 4 (2009): ABA Guidelines are “only guides,” not binding standards; timeliness and scope of mitigation development is assessed for reasonableness under Strickland. Used to reject a per se deficiency based on late retention alone.
Skipper v. South Carolina, 476 U.S. 1 (1986), recognized in Chaffee v. State, 294 S.C. 88, 362 S.E.2d 875 (1987): Prison adaptability evidence is constitutionally relevant mitigation. The Court accepts relevance but finds no prejudice on these facts.
Weik v. State, 409 S.C. 214, 761 S.E.2d 757 (2014); Smith v. State, 386 S.C. 562, 689 S.E.2d 629 (2010); Gilchrist v. State, 350 S.C. 221, 565 S.E.2d 281 (2002); Bruno v. State, 347 S.C. 446, 556 S.E.2d 393 (2001): An appellate court cannot credit a “strategic” rationale without evidence of an actual strategy. The Court corrects the PCR court on this point regarding the prison adaptability expert but still finds no prejudice.
Smalls v. State, 422 S.C. 174, 810 S.E.2d 836 (2018); Sellner v. State, 416 S.C. 606, 787 S.E.2d 525 (2016): Delineate the standard of review: deference to supported factual findings; de novo review of questions of law, including deficiency and prejudice.

Legal Reasoning

1) Adoption of the State’s Proposed Order after Remand

The Court rejected Lindsey’s contention that the PCR judge flouted the remand order and due process by readopting the State’s proposed order. Reaffirming Hall and Pruitt, the Court distilled the permissibility of adopting proposed orders into two safeguards:

The other party must have notice of the request for a proposed order and an opportunity to respond; and
The judge must carefully review the proposed order before signing.

The record showed both were satisfied: Lindsey was invited to submit (and did submit) a competing order; the State served its submission, giving Lindsey an opportunity to respond; and on remand, the judge reviewed the file in depth, initialed each page of the 187‑page amended order, and made handwritten corrections indicating active review. The amended order also contained specific, issue‑by‑issue findings and conclusions, aligning with the 2014 remand directive, Pruitt, Hall, and § 17‑27‑80. Consequently, the Court adhered to the ordinary standard of review rather than adopting de novo review based solely on the judge’s adoption of a party’s draft.

Notably, while federal habeas decisions sometimes question the presumption of correctness when a state court’s order appears uncritically copied (e.g., Jefferson v. GDCP Warden), the South Carolina Supreme Court found the record here dispelled any inference of rubber‑stamping.

2) Ineffective Assistance in Capital Mitigation

Lindsey catalogued alleged deviations from the ABA Guidelines—late mitigation start, limited records, failure to call additional experts and lay witnesses (including a prison adaptability expert), and limited preparation of the forensic psychiatrist. The Court approached the claims in three steps: (i) the Guidelines are persuasive but not controlling; (ii) some performance issues may exist (and the PCR court erred by inventing unsupported “strategy” regarding a prison adaptability expert); yet (iii) no prejudice was shown.

ABA Guidelines as guides, not mandates: Citing Van Hook, the Court declined to treat the Guidelines as “inexorable commands.” It found the timing of expert retention not per se unreasonable on these facts and evaluated performance under Strickland’s objective reasonableness standard.
Existing mitigation at trial was material and competently presented: Trial counsel introduced a forensic psychiatrist (Dr. Margaret Melikian), a mental health professional (Ann Howard), and lay witnesses who humanized Lindsey’s background: severe poverty, absent father, repeated head injuries and childhood ingestion of kerosene, cognitive limitations, school difficulties, and longstanding depression with a prior suicide attempt at 15. Dr. Melikian testified that Lindsey suffered major depressive disorder at the time of the offense, had cognitive deficits and low intelligence limiting stress‑coping abilities, and was not malingering.
The “Jimmy” issue: On cross at trial, the State probed reports of an “imaginary friend,” which later appeared to be a fabrication prompted by jailhouse advice. The Court reasoned that any damage stemmed from Lindsey’s fabrication—not counsel’s preparation—and that Dr. Melikian’s trial testimony had already insulated her diagnosis from the “Jimmy” episode, expressly decoupling it from her depression and cognitive-impairment opinions.
Additional mitigation at PCR was largely cumulative or double-edged: The bio‑psychosocial narrative by clinical social worker Jan Vogelsang added detail to themes already presented—abject poverty; family violence; chaotic home; loss; exposure to drugs; multiple head traumas; and family mental illness. But the Court concluded those details did not materially shift the mitigation landscape. Similarly, testimony from Lindsey’s brother (Sims) and former lawyer (Tullis) would have echoed evidence already before the jury: deep depression and suicidal ideation, distress over access to his children, and post‑offense self‑harm. Paramedic Bell’s testimony that Lindsey wanted to die was cumulative of guilt‑phase EMS evidence that Lindsey shot himself immediately after killing Victim and told responders he had shot himself.
Prison adaptability expert: Although the Court corrected the PCR judge for attributing an unsupported “strategy” to trial counsel’s decision not to call such an expert, it found no prejudice. The State would have undermined any adaptability testimony with strong contradictory evidence: the prior ABWIK conviction (shooting through a windshield), multiple domestic violence incidents, and Lindsey’s prison fights and altercations with officers. In short, adaptability testimony would have been “significantly neutered” and unlikely to move at least one juror from a death vote.
“Fancier” mitigation does not establish prejudice: Echoing Jones and Council, the Court held that embellishing the narrative with more granular social history did not establish a reasonable probability of a different sentence when weighed against the offense facts: a calculated, public shooting into a car containing two children and another adult at a police station, coupled with Lindsey’s history of violence.

Impact

A. PCR Practice in South Carolina

Adoption-with-Review affirmed: This decision solidifies that PCR judges may adopt party-drafted orders—including after a remand—so long as (1) both sides have notice and an opportunity to respond, and (2) the judge has carefully reviewed and confirms the order reflects the court’s findings and conclusions, with specific references to the record and law. In capital cases, Hall’s “strong encouragement” to write original orders remains, but adoption is not error per se.
Record-building matters: Judges who adopt a party’s order should create a record demonstrating meaningful review. Here, the judge’s sworn explanation and page-by-page initials were decisive. Counsel who object to adoption should timely respond to draft orders with concrete objections, as Pruitt contemplates.

B. Capital Defense and Mitigation Strategy

Prejudice remains the gatekeeper: Even if aspects of mitigation development are deficient or late, relief turns on whether omitted evidence would probably have changed at least one juror’s penalty vote. Cumulative social history or double-edged evidence is unlikely to satisfy Strickland’s prejudice prong.
Prison adaptability is relevant but not sufficient: Skipper makes adaptability admissible, not dispositive. Where the record contains serious violent conduct and in-prison violence, adaptability opinions may not carry the day.
ABA Guidelines inform but do not control: Counsel should strive to meet Guideline norms (early team assembly; comprehensive records; expert integration), but failure to check every box is not itself constitutional deficiency. The analysis is contextual and outcome‑focused under Strickland.
Beware defendant‑driven pitfalls: Fabrications (e.g., “Jimmy”) can undermine mitigation. The Court’s analysis underscores that experts who decouple their diagnoses from suspect narratives can blunt prosecutorial attacks.

Complex Concepts Simplified

PCR (Post‑Conviction Relief): A civil procedure allowing a convicted person to challenge the conviction or sentence on constitutional grounds (e.g., ineffective assistance) after direct appeal is complete.
Adoption of proposed orders: Judges often ask parties to draft orders. Adoption is lawful if the opposing party can respond and the judge independently reviews and approves the contents as the court’s own findings and conclusions.
Strickland test: A two‑part standard for ineffective assistance:
- Deficiency: Did counsel’s performance fall below an objective standard of reasonableness?
- Prejudice: Is there a reasonable probability that, but for counsel’s errors, the result would have been different? In capital sentencing, would at least one juror probably have chosen life?
ABA Guidelines: Best-practice recommendations for capital defense teams. They guide, but do not define, constitutional adequacy.
Prison adaptability evidence: Expert or lay testimony indicating the defendant can safely serve life without posing undue risk—relevant mitigation but subject to rebuttal with contrary conduct.
Affirmed in result: The appellate court upholds the outcome (denial of relief) but not necessarily all of the lower court’s reasoning. Here, the Supreme Court corrected the PCR court’s speculation about counsel’s “strategy” yet still found no prejudice.

The Concurrence/Dissent: A Different View of Mitigation Prejudice

Justice Hill (joined by Acting Justice Beatty) concurred in the procedural ruling on adopted orders but dissented on the mitigation question. The dissent criticized trial counsel’s late, sparse mitigation work, highlighting:

Mitigation development that began in earnest only a month before trial, with a first-time capital mitigation investigator and a psychiatrist new to death litigation;
Failure to present key contemporaneous corroboration of Lindsey’s mental state (suicide notes and a voicemail to counsel shortly before the murder) and to integrate a cohesive, evidence‑rich narrative through a social work expert;
Expert neuropsychological findings (Dr. Brawley) of severe deficits; and
A robust, detailed bio‑psychosocial profile (Jan Vogelsang), depicting “abject poverty,” pervasive family violence and mental illness, and lifelong head trauma.

Citing the U.S. Supreme Court’s emphasis on weighing aggravators against a fully developed mitigation case, the dissent concluded there was at least a reasonable probability that one juror would have opted for life. The dissent distinguished Bobby v. Van Hook and stressed that the record here more closely resembled cases where minimal mitigation warranted relief once the full picture was presented.

Practice Pointers

For PCR judges: If adopting a party’s order, ensure both parties are on notice, invite responses, and create a clear record of your independent review and agreement. Provide issue‑by‑issue findings and legal conclusions with citation to the record and authorities.
For defense counsel in capital cases:
- Start mitigation early. Assemble a complete team (fact investigator, mitigation specialist, mental health experts) and integrate records (school, medical, mental health, correctional) and corroborating voices (family, teachers, employers, clergy).
- Present a cohesive narrative that connects biography, trauma, cognitive limitations, and mental health to the statutory mitigators and to a reasoned case for life.
- Anticipate “double‑edged” risks (e.g., prison violence) when considering a prison adaptability expert; if used, prepare to explain and mitigate adverse conduct.
- Vet and neutralize credibility pitfalls (e.g., fabricated symptoms) while safeguarding the core mental health case.
For appellate/PCR counsel: Do not assume adoption of a State‑drafted order triggers de novo review. Preserve objections with specificity and, where challenging the process, develop a record undermining the presumption of careful judicial review.

Conclusion

Lindsey clarifies two important points in South Carolina practice. First, adoption of party‑drafted PCR orders—even in capital cases and even after remand—is permissible where both sides are heard and the judge independently, carefully reviews and embraces the order’s findings and conclusions. Second, in capital ineffective‑assistance claims, ABA Guideline deviations do not alone warrant relief; Strickland prejudice remains dispositive. Here, the Court concluded that the additional mitigation—though more detailed—did not create a reasonable probability of a different sentence when weighed against the offense and the record of violence.

The partial dissent underscores that in close capital cases, the completeness and coherence of the mitigation narrative can make all the difference. Going forward, trial teams should heed that admonition; PCR courts should continue to ensure robust, transparent findings; and reviewing courts will continue to focus on whether added mitigation truly moves the sentencing needle under Strickland’s prejudice standard.