262 F.3d 268 (4th Cir. 2001), 00-7663, Glover v. Miro

Docket Nº:00-7663
Citation:262 F.3d 268
Party Name:ERIC DOMAIN GLOVER, Petitioner-Appellee, v. GERALDINE MIRO, Warden of Allendale Correctional Institution; CHARLES MOLONY CONDON, Attorney General of the State of South Carolina, Respondents-Appellants.
Case Date:August 15, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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262 F.3d 268 (4th Cir. 2001)

ERIC DOMAIN GLOVER, Petitioner-Appellee,


GERALDINE MIRO, Warden of Allendale Correctional Institution; CHARLES MOLONY CONDON, Attorney General of the State of South Carolina, Respondents-Appellants.

No. 00-7663

United States Court of Appeals, Fourth Circuit

August 15, 2001

Argued: May 10, 2001

Appeal from the United States District Court for the District of South Carolina, at Florence. Matthew J. Perry, Jr., Senior District Judge.


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COUNSEL ARGUED: Tracey Colton Green, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina, for Appellants. Thadeous Herbert Westbrook, III, NELSON, MULLINS, RILEY & SCARBOROUGH, L.L.P., Columbia, South Carolina, for Appellee. ON BRIEF: Charles M. Condon, Attorney General, John W. McIntosh, Chief Deputy Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina, for Appellants. William C. Wood, Jr., NELSON, MULLINS, RILEY & SCARBOROUGH, L.L.P., Columbia, South Carolina, for Appellee.

Before WILKINSON, Chief Judge, and WIDENER and MICHAEL, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Widener joined. Judge Michael wrote a dissenting opinion.


WILKINSON, Chief Judge:

This case addresses whether defendant Eric Glover received constitutionally ineffective assistance of counsel. The district court found that Glover had not proven actual prejudice under Strickland v. Washington, 466 U.S. 668 (1984). It nevertheless granted a writ of habeas corpus to Glover under the per-se prejudice reasoning of United States v. Cronic, 466 U.S. 648 (1984). Because Strickland v. Washington's actual prejudice analysis applies to this case, and because Glover cannot prove actual prejudice under the Strickland test, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.


On June 19, 1991, a South Carolina jury found Eric Glover guilty of numerous counts resulting from the January 22, 1991 kidnapping and robbery of Wayne Cooper. Based on Cooper's description of his assailant as well as other leads, police arrested Glover in Florida and returned him to South Carolina. A grand jury indicted him on five counts stemming from the January 22 incident -grand larceny, kidnapping, armed robbery, assault and battery with the intent to kill, and possession of a firearm during the commission of a violent crime.

Gordon Jenkinson, the public defender, originally represented Glover. Jenkinson met briefly with Glover at the March 1, 1991 preliminary hearing. Glover proclaimed his innocence, and later wrote Jenkinson a letter with a list of potential alibi witnesses who would testify that Glover was in Florida on the date of the crime. Following this meeting, however, Jenkinson resigned as public defender and his cases were reassigned.

The court ultimately assigned Glover's case to Jerome Askins. Askins received Glover's file on June 17, 1991. Glover's trial was scheduled for the two week term of court beginning June 17. In addition to

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Glover's case, Askins was also responsible for "fifty or sixty" other assigned criminal cases during the term.

Askins first met with Glover on June 17. During this first meeting, Glover denied having committed the crimes. He again claimed he was in Florida during the robbery. Glover provided Askins with the names of approximately ten individuals whom he claimed would establish his alibi. Askins contacted some of these people, but determined that they would not provide any useful testimony. Askins said that he did not contact the other witnesses identified by Glover. Askins also reviewed Jenkinson's notes and talked to the investigating officer.

Glover's trial was held on June 19, 1991. After the jury was selected, but before it was sworn and outside its presence, Askins moved for a continuance. He advised the court that he had been unable to identify any witness who could establish an alibi defense on behalf of Glover. The trial court denied the motion, stating that it could not subpoena witnesses from Florida and that it had no assurance that any witnesses would attend the trial if it were rescheduled. In reality, South Carolina law does allow criminal defendants to subpoena out-of-state witnesses.

During the trial, the State presented five witnesses. The first witness, Preston Wilson, testified that he owned a trailer which he rented to a tenant. On January 20, 1991, he went to the trailer where he conversed with an acquaintance of the tenant, Eric Glover. On crossexamination by Askins, Wilson admitted he had no personal knowledge about whether Glover committed any crime.

The next, most important, witness was the victim, Wayne Cooper. Cooper identified Glover as the ringleader in his kidnapping and robbery. According to Cooper, around 7:00 P.M. on January 22, he was driving his mother's 1980 white Thunderbird. Cooper stopped in a grocery store where he struck up a conversation with a stranger. While on the stand, Cooper identified Glover as the person with whom he engaged in conversation.

According to Cooper's testimony, Glover and Cooper then chatted about a variety of other matters, like the Super Bowl. Glover told Cooper that he was from Florida, and that he had just arrived in South Carolina. Glover and Cooper continued their conversation over drinks. While paying for the alcohol, Cooper opened his wallet. Cooper was carrying a little over $500. Cooper testified that Glover had an opportunity to observe the cash in Cooper's wallet because Glover was standing beside Cooper during the purchase. Cooper and Glover then decided to visit some female friends of Glover's. They drove to the women's house in Cooper's Thunderbird. Glover introduced Cooper to the women as his friend. After about twenty minutes at the house, Cooper wanted to leave. Cooper agreed to drop Glover off at the grocery store where they met.

Upon arriving, Cooper testified that Glover pulled a gun and told Cooper that this was a "stickup." Glover forced Cooper into the backseat and repeatedly struck him in the face with the gun. At that point, two other people joined Glover. They drove off with Cooper and Glover still in the backseat. During the drive, Glover grabbed Cooper's wallet. Glover continued to beat Cooper, thus preventing Cooper from seeing where he was being taken. Glover and his accomplices finally arrived at a dirt road. They pulled the car to the side of the road and checked to see if Cooper was still alive. After assuring themselves that he was indeed alive, they stuffed Cooper in the trunk and continued to drive.

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About five minutes later, the car stopped outside of a trailer. Glover and the two others moved Cooper from the trunk to the trailer. As Glover and his accomplices searched the Thunderbird, Cooper escaped through the back door. Cooper ran to a nearby trailer home, and was eventually taken to a hospital.

Askins vigorously cross-examined Cooper, questioning him on the time of the crime, the light outside when he observed Glover, the ease with which Glover could have killed Cooper, what Cooper was doing in the area, why Cooper could not identify the other two offenders even though he saw them, and other inconsistencies in his testimony.

The State then called Betty Lou Coker, the woman who lived in the other trailer home to which Cooper fled after he escaped. Coker testified that Cooper arrived at her mobile home around 8:30 P.M. According to Coker, Cooper said that he had just been beaten up, that his assailants had tried to kill him, and that they had taken his money. During cross-examination by Askins, Coker admitted that she had never seen Glover. Cooper's father also testified for the State. He confirmed that Cooper was driving the 1980 white Thunderbird on January 22. Askins cross-examined Cooper's father on a variety of matters, including why Cooper was in town that night and whether the father had any personal knowledge about the crime itself.

The State finally called Officer Debra Collins. Collins testified that she first saw Cooper in the hospital the night he was assaulted. According to Collins, Cooper told her that "this guy pulled a gun on him and made him get in the car against his will." Cooper could not give the name of his assailant, but did provide a description of him. He said that his attacker was between 5'5" and 5'6", weighed between 140 and 150 pounds, had a light complexion, and walked slightly bowlegged. Cooper did not know the location of the trailer, except that it was down a dirt road.

Collins then told the jury that soon after conversing with Cooper, she received a call from another officer who had found a white Thunderbird at a trailer off a dirt road. Officer Collins went to the location and determined that the car was registered to Cooper's mother. Collins also determined that Preston Wilson owned the trailer. Wilson told Collins that nobody was supposed to be in the trailer because the man renting it from him had already left town. Collins then entered the trailer, where she found a note written to "Dear Grandmother" and signed "Eric Glover." Askins cross-examined Collins on a variety of issues.

After the State rested, Askins asked the judge for a directed verdict. Although the court denied the motion, it granted Askins' motion to reduce the charge of grand larceny to use of a vehicle without the owner's consent. Askins also consulted with his client and determined, after a lengthy discussion, that Glover did not...

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