Unpublished
Unpublished
No. 04-12
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CA-00-208-3-MU)
Argued:
Decided:
After
See 28
Shortly
Syriani
The court
At some
point, Syriani stopped his attack, walked back to the van, and
yelled in Arabic, Go home, bastard, to John.
J.A. 367.
Rose ran
She arrived in
time to see her father get into the van, look directly at her, and
drive away.
Two neighbors witnessed the attack.
that the sound of children yelling outside prompted him to look out
the window of his home.
sat down, but heard more noises and yelling, prompting him to again
look out the window.
something, and then walked back across the street to a car parked
in the driveway next to Wilsons house.
car and the car began to shake.
his friend.
Wilson
the
car.
J.A.
250.
He
found
Teresa
covered
in
blood.
J.A. 252.
arrived back outside in time to see a van pulling away from the
neighborhood.
out of the vehicle, and started walking back towards the car.
When
Twenty-
trial,
Syriani
and
his
sister
Odeet
testified
about
cancer when Syriani was twelve years old and could no longer work.
Because he was the oldest boy, Syriani had to quit school (he was
in the sixth grade at the time) and work to help his mother raise
the other five children.
his father and mother, all moved to Amman, Jordan, and rented a
home there.
four years after he developed cancer, but was never able to return
to work.
working
machinist
as
civilian
in
the
Jordanian
Army,
but
work as a housekeeper to help, but that his sisters did not work
because, in his culture, women did not work outside the home.
As
J.A. 766.
A woman,
Women go to school to
finish school, and then they engage and then they get married.
J.A. 766.
attend school because their family could not afford to buy the
books and other things necessary from them to attend the Jordanian
schools.
At
J.A. 771.
[A]fter
J.A. 771.
J.A. 771.
in
Syrianis
New
who
Jersey,
had
through
immigrated
George
to
the
Asmarish,
United
States
friend
in
of
1969.
Asmarish wrote to Syriani and told him that he had met a family
with a nice girl if [Syriani] would like to get married.
773.
J.A.
another for about three months. Teresa then traveled to Jordan for
the wedding.
United States.
He
Although Teresa
worked briefly outside the home during the early months of their
marriage, she quit working after their first child, Rose, was born.
Their children (Rose, Sara, John, and Janet) were all born while
they were living in Chicago.
the home.
In
1986,
Syriani
moved
his
family
to
Charlotte,
North
outside the home since the birth of their first child and had
dressed according to Arabic tradition, which included wearing no
makeup. After the move, however, Teresa expressed a desire to work
outside the home.
gas station, Syriani disapproved. She learned to drive and met new
friends, and she began to wear makeup and dress in a more American
fashion.
According
change[d] [alot].
else.
to
Syriani,
they
began
to
argue.
She
wasnt happy from her change because she changed fast, very fast.
J.A. 791.
day in front of the children and that she called the police several
times even though he was not doing anything to her.
According to
Syriani, the last three months she used to beat [him], J.A. 835,
but he didnt touch her, J.A. 836.
requiring Syriani to leave the marital home and to stay away from
her and the children.
their home with two policemen and the order and told him that he
had to relinquish his house keys and leave. Syriani testified that
he took his clothes and began living in motels.
Teresa rebuffed
As he
was driving out, he saw Teresas car pull into the neighborhood.
He testified that he stopped his van to talk to her, but he denied
blocking her path of travel.
her car as well and he approached the drivers side window, which
was down.
He
testified that he asked Teresa, With whom did you leave my kids,
by themselves?
J.A. 815.
11
his face, but Teresa opened the car door and hit him with enough
force to cause an injury to his leg.
According to Syriani, he
grabbed the door, but by that time she had put the car in reverse.
He testified that he had a screwdriver in [his] pocket, and [he]
hit her from the window.
J.A. 817.
He testified
that he did not intend to hurt her or kill her, and only remembers
hitting her three or four times.
In addition to presenting the testimony of Syriani regarding
the events of that night, Syrianis counsel called a number of
neighbors and co-workers who testified that Syriani was a gentle,
hard-working man, with a good nature and character, and that the
Syriani household was a loving and happy one.
In closing argument, trial counsel urged the jury to find that
Syriani and Teresa, embroiled in an emotional divorce situation,
had become engaged in an argument, and that Syriani had responded
reasonably and in self-defense to his being scratched, hit by the
door, and carried backwards down the street by the moving car.
He
At most,
12
and inflicted the fatal wound, without malice, but in the heat of
passion.
released on bond, did not attempt to flee the country and, instead,
took steps to ensure that his children were cared for and given a
home with his mother and sister Odeet, who had by that time also
immigrated to the United States and settled in the Chicago area.
Counsel also presented the testimony of a Mecklenburg County jailor
that Syriani had adjusted well to incarceration and had been a
model prisoner.
well.
rebuttal,
the
State
presented
the
testimony
of
Sara
13
riding in the car on another occasion, and pull her mother down the
stairs by her hair and rip her shirt on yet another occasion.
She
also testified that Syriani had pushed her down and kicked her
while she was looking for a shoe that she had lost.
At the conclusion of the penalty phase, the jury found as an
aggravating
factor
that
the
murder
of
Teresa
was
especially
but
unanimously
outweighed
these
decided
that
mitigating
the
aggravating
circumstances
and
On direct appeal,
Supreme
Court
denied
Syrianis
petition
for
writ
of
Syriani
mitigating
evidence
of
Syrianis
cultural
and
social
14
translator
and
granted
Syrianis
request
for
an
independent
ruled
that
Syriani
failed
to
prove
that
his
counsels
J.A. 2425.
denied Syriani relief, and the North Carolina Supreme Court denied
review.
II.
The
Sixth
Amendment
requires
that
[i]n
all
criminal
reasonableness,
measured
by
the
prevailing
professional
makes
both
showings,
it
cannot
be
said
Unless a
that
the
16
However,
evaluating
Syriani
the
argues
second
that
prong
of
the
state
Stricklands
MAR
court,
test,
i.e.,
when
the
Supreme
J.A. 2425.
Court
has
We agree.
dismissed
the
idea
that
we
must
v.
Catoe,
221
F.3d
600,
608
(4th
Cir.
2000)
(citing
28 U.S.C.A. 2254(d).
Accordingly, we
application
of
the
prejudice
17
prong
to
Syrianis
See
follow, we disagree.
A.
We begin with Syrianis claim that trial counsel unreasonably
failed to investigate and present mitigating evidence of his
cultural background and social history.
counsel conducted a thorough investigation into the first thirtyseven years of his life in Palestine and Jordan, they would have
uncovered a number of family members, friends, and co-workers in
Jordan who were willing to testify about his difficult life before
he immigrated to the United States.
Syriani did not testify at the state MAR hearing about his
background.
was released to return home and the family moved to Jordan where
one of his sisters already lived.
was unable to work and that his father was laughed at by others in
the community.
According to
Syriani, She used to hit him with her shoe just like my wife
[Teresa] used to raise her hand against me in the last year of our
marriage.
result.
J.A. 2300.
J.A. 2301.
Syriani and his family lived in extreme poverty and his mother
abused him physically and emotionally.
According to Syriani, he
wet the bed until he was fifteen years old, and his mother
humiliated him for this problem.
In addition to the claim that counsel was ineffective for
failing to uncover and present this additional personal history,
Syriani asserts that trial counsel was ineffective for failing to
retain a cultural expert to provide the jury with testimony about
19
ideas,
thinking
communication.
process,
J.A. 1161.
ideals
and
methods
of
history, Syriani claims, would have been able to explain and place
in context this clash of American and Arab culture.
Post-conviction counsel took this step, retaining Dr. Akram
Khater, Ph.D., a history professor from North Carolina State
University who specializes in Arabic history and culture, to
evaluate Syriani.
behaviors
of
men
and
women
in
traditional
Arabic
reasonable
investigation
into
possible
mitigating
See
20
makes
particular
investigations
unnecessary.
In
any
deciding
whether
[counsel]
exercised
reasonable
Wiggins, 539
does
not
require
counsel
to
investigate
every
Nor does
21
Also,
witnesses
in
the
country
of
Jordan.
Syriani
was
an
investigator
there,
to
interview
family
members,
friends, and co-workers who had known Syriani more than a decade
earlier.
Second, Syrianis counsel undertook reasonable efforts to
investigate Syrianis cultural background.
22
presented
the
cultural
aspects
of
Plumides
demonstrated
that
he
fully
the
case,
and
In particular,
understood
Syrianis
Counsel presented
upon
counsel.
his
wife,
constituted
ineffective
assistance
of
Syriani,
Odeet,
or
the
visiting
brother
conveyed
this
at
trial
conflicts
with
the
background
offered
through
the
Counsel presented
the
jurors
knew
and
understood
the
cultural
issues
involved in this case, and weighed them, but concluded that this
did not outweigh the aggravating nature of the attack.
B.
We
turn
ineffective
now
to
assistance
Syrianis
of
counsel
assertion
because
that
he
counsel
received
failed
to
Syriani did not relate that his father had been taken
prisoner and ridiculed after his release, causing him to have to
leave school at age twelve to work and support the family in
Jordan. Rather, Syriani testified when he was twelve years old,
his father developed cancer and could no longer work and, because
Syriani was the oldest boy, he had to quit school to support the
family.
25
At the conclusion
diagnoses.
According
to
Dr.
Groce,
Syriani
was
J.A. 2158.
Dr. Groce related that his evaluation and diagnosis were based on
interviews with the patient, the result of physical examination,
laboratory studies, observation of his ward behavior during the
time that he was in the hospital and information received from the
patients attorney, the clerk of court, the county jail, the
patients mother and an investigating detective.
no
time
did
Dr.
Groce
contact
trial
counsel
J.A. 2156.
or
request
At
any
Dr.
Groces
opinions
regarding
26
Syrianis
ability
to
decision
not
to
do
more
was
based
on
an
incomplete
with
any
information
concerning
Syrianis
cultural
background. Syriani also points to the fact that trial counsel was
aware that, shortly after Syriani was arrested, he told his son
John that his brain had blown up, told his daughter that he had
gone
crazy,
and
told
another
individual
that
J.A. 2114-15.
he
had
lost
Syriani asserts
have
asked
Dr.
Groce
to
explore
potential
mitigating
psychological
evaluation
for
purposes
of
uncovering
mitigating evidence.
To
demonstrate
investigation
would
the
have
mitigating
uncovered,
evidence
that
such
an
Syriani
points
to
the
27
hearing.
In addition, Dr.
According to Dr.
J.A. 2025.
28
The
state
MAR
court
rejected
this
claim
of
deficient
J.A.
MAR court ruled that Syriani had failed to demonstrate that he was
prejudiced by the alleged deficiencies of counsel.
The district
29
show
that
any
failure
on
the
part
of
his
trial
counsel
A reasonable probability is
death
penalty
context,
to
assess
prejudice,
the
In
court
mitigating
evidence.
Id.
Prejudice
requires
aggravating
compelling.
Id. at 537.
evidence
in
this
case
was
particularly
30
and sons path to their home with his van, approached the vehicle,
and chased Teresa as she attempted to get away from him by placing
the car in reverse.
stabbed his wife with a screwdriver in the head and face, while
their ten-year-old son was in the passenger seat and over his
attempts to protect his mother from this brutal onslaught.
The
According to
32
station to arrest him, and told the firemen and the emergency room
physicians that Teresa had assaulted him.
Weighed against this aggravating evidence, Syriani advances
evidence that he was raised in poverty, suffered from mild posttraumatic stress disorder (caused by his upbringing or his murder
of his wife or both), depression, and difficulty coping with the
americanization of his wife and break-up of their marriage, which
Dr. Rollins classifies as personality disorders affecting his
ability to control his behavior.
The evidence presented at the MAR hearing was more extensive
than that presented during the trial.
different from that which the jury actually did consider and weigh
as
to
lead
us
to
conclude
that
the
result
might
have
been
had
been
raised
in
different
culture
and
that
he
33
The
short,
Syrianis
jurors
were
obviously
aware
of
the
and
mental
deficiencies
associated
with
it,
and
35