Howard v. Moore

• Citation: 131 F.3d 399
• Decision Date: 09 December 1997
• Docket Number: No. 95-4017,95-4017
• Parties: Ronnie HOWARD, Petitioner-Appellant, v. Michael W. MOORE, Director of South Carolina Department of Corrections; Charles M. Condon, Attorney General of the State of South Carolina, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 399

131 F.3d 399

Ronnie HOWARD, Petitioner-Appellant, v. Michael W. MOORE, Director of South Carolina Department of

Corrections; Charles M. Condon, Attorney General

of the State of South Carolina,

Respondents-Appellees.

No. 95-4017.

United States Court of Appeals,

Fourth Circuit.

Argued April 8, 1997.

Decided Dec. 9, 1997.

ARGUED: Sheri Lynn Johnson, Cornell Law School, Ithaca, NY, for Appellant. Donald John Zelenka, Assistant Deputy Attorney General, Columbia, SC, for Appellees. ON BRIEF: H.W. Pat Paschal, Jr., Greenville, SC; Barney O. Smith, Jr., Greenville, SC, for Appellant. Charles Molony Condon, Attorney General, John W. McIntosh, Deputy Attorney General, W. Edgar Salter, III, Senior Assistant Attorney General, Lauri J. Soles, Assistant Attorney General, Columbia, SC, for Appellees.

Before WILKINSON, Chief Judge, RUSSELL, WIDENER, HALL, MURNAGHAN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge WILLIAMS wrote the majority opinion, in which Chief Judge WILKINSON and Judges DONALD S. RUSSELL, WIDENER, WILKINS, NIEMEYER, HAMILTON, and LUTTIG joined. Judge MICHAEL wrote a dissenting opinion, in which Judges K.K. HALL, MURNAGHAN, and DIANA GRIBBON MOTZ joined.

OPINION

WILLIAMS, Circuit Judge.

In June 1986, Ronnie Howard was convicted of capital murder by a South Carolina jury and sentenced to death. After exhausting his state appeals, he petitioned the federal district court for habeas corpus relief. The district court denied his petition and Howard appeals, raising numerous constitutional challenges to the state court proceedings. After oral argument before a panel of this Court, we voted to hear Howard's appeal en banc to address the important procedural and substantive issues raised. These issues included whether the more deferential habeas standards of review set forth in § 104 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), signed into law on April 24, 1996, and codified at 28 U.S.C.A. § 2254(d) (West Supp.1997), apply to this appeal; whether the prosecutor's peremptory challenges violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); whether questioning by Howard's federal probation officer after Howard's invocation of his Fifth Amendment right to counsel tainted his subsequent confessions; and whether the admission of Howard's redacted confessions erroneously excluded exculpatory and mitigating evidence from the jury's consideration.

The en banc court heard oral argument on April 8, 1997. On June 23, 1997, the United States Supreme Court issued its opinion in Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), in which it held that the new habeas standards of review, codified at 28 U.S.C.A. § 2254(d) (West Supp.1997), do not apply to habeas corpus petitions pending in federal court prior to the enactment of the AEDPA. Howard filed his habeas petition in the district court prior to April 26, 1996, the effective date of the AEDPA. We, therefore, review Howard's claims under pre-AEDPA law. ¹ Applying the proper standard of review to the substantive issues on appeal, we conclude that (1) no Batson violation occurred; (2) Howard's oral confessions to FBI Special Agent Brendan Battle and Lieutenant William Hitchins of the Greenville County Sheriff's Department were not "tainted fruits" of an improper custodial interrogation by Howard's federal probation officer, Haywood Polk; (3) the redactions of his confessions were not violative of his Fifth and Eighth Amendment rights; and (4) the other assignments of error raised by Howard have no merit. Accordingly, we affirm the district court's denial of habeas relief.

I.

The primary facts of the tragedy underlying this appeal are undisputed. Chinh Le disappeared on her way home from work in Greenville, South Carolina, on the evening of August 29, 1985. On September 12, 1985, Howard was arrested on unrelated robbery charges in Asheville, North Carolina, and detained in the Buncombe County Jail. After Howard was appointed counsel and invoked his Fifth Amendment right to remain silent, Howard met with his federal probation officer, Haywood Polk, on October 3. During this meeting, Howard orally confessed to his involvement in numerous armed robberies and in two murders, including the murder of Le. At this meeting, Howard also asked to speak to the FBI about his crimes in the hopes of negotiating a plea to lessen his punishment. As a result, Howard met with Agent Battle on October 8, and, after signing a waiver of rights form, orally confessed to, among other things, Le's murder. ² Agent Battle immediately notified Lieutenant Hitchins of the Greenville County Sheriff's Department of Howard's connection to the Greenville murder. Lieutenant Hitchins contacted Howard and the two met on October 16 at which time Howard, after orally waiving his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), again orally confessed to Le's murder.

In each confession, Howard revealed that he and Rickey Weldon had formulated a plan to steal the automobile of a lone female driver. On August 29, the two men spotted Le and followed her down a dirt road where they "bumped" the rear of her vehicle. When Le exited her automobile to inspect the damage, Howard forced her back into her automobile at gunpoint. Howard then drove away in Le's vehicle, and Weldon followed in the other car. Howard subsequently stopped in an isolated area where the two men beat Le and eventually murdered her by placing a piece of plastic over her head until she suffocated to death. They again drove around until they found another isolated area where they dumped Le's body into a clump of kudzu vines. ³ Before disposing of her body, however, Howard and Weldon removed all her clothing and washed her body, first with soda and then in a mud puddle, to remove any fingerprints. Howard and Weldon then abandoned Le's automobile in Columbia, South Carolina. Howard, however, retained possession of some of Le's personal belongings and traveled to Charlotte, North Carolina, where he disposed of the items in various garbage dumpsters. As a result of Howard's confession, South Carolina authorities recovered Le's body and her automobile several weeks after her death.

Howard and Weldon were tried jointly for Le's murder. The State introduced Howard's confessions into evidence through the testimony of Agent Battle and Lieutenant Hitchins, both of whom had taken meticulous handwritten notes of their conversations with Howard. Polk did not testify. In compliance with Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the trial court directed Agent Battle and Lieutenant Hitchins not to reveal those portions of Howard's confessions inculpating his codefendant Weldon during direct or cross examination. On June 5, 1986, a jury found both defendants guilty of murder, kidnapping, armed robbery, and conspiracy. Howard and Weldon were each sentenced to death for the murder, plus twenty-five years for the armed robbery and five years for the conspiracy.

On direct appeal, the South Carolina Supreme Court upheld Howard's conviction and his death sentence. See State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3174, 104 L.Ed.2d 1036 (1989). ⁴ The state court also affirmed Weldon's conviction, but reversed his death sentence and remanded for resentencing. ⁵ The United States Supreme Court denied Howard's petition for certiorari, see 490 U.S. 1113, 109 S.Ct. 3174, 104 L.Ed.2d 1036 (1989), and his petition for rehearing, see 492 U.S. 932, 110 S.Ct. 13, 106 L.Ed.2d 628 (1989). Howard then sought post-conviction relief (PCR) in state court. ⁶ After con ducting an evidentiary hearing, the state PCR court denied Howard relief on September 3, 1991. The South Carolina Supreme Court affirmed the denial of relief, and the United States Supreme Court again denied certiorari, see 508 U.S. 917, 113 S.Ct. 2359, 124 L.Ed.2d 266 (1993).

On September 17, 1993, Howard filed this federal habeas action in the United States District Court for the District of South Carolina. The petition was referred to a magistrate judge, who recommended denying Howard's motion for an evidentiary hearing and his petition for habeas corpus relief. The district court adopted the findings of the magistrate judge and granted the State's motion for summary judgment on June 16, 1995. Howard now appeals the district court's denial of habeas corpus relief.

II.

Howard raises several issues in his petition to this Court. He argues that his conviction should be reversed because (1) the prosecutor improperly used peremptory strikes against six of the seven black potential jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (2) the trial court erroneously admitted portions of Howard's confessions made to Agent Battle and Lieutenant Hitchins; and (3) the trial court erroneously excluded from the jury's consideration portions of Howard's confessions which contained exculpatory evidence. Howard also challenges his death sentence on the grounds that (1) the trial court erroneously excluded mitigating evidence contained in Howard's confessions in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); (2) the trial court erroneously failed to reinstruct the jury on the elements of involuntary manslaughter when it repeated its instructions on murder; (3) Howard's counsel was ineffective in failing to present certain mitigating evidence during the penalty phase of the trial; (4) the prosecutor improperly commented on Howard's failure to testify during closing arguments; and (5) there was improper ex parte contact between the prosecutor's office and the jury.

When considering a habeas petition, we...