McWee v. Weldon

• Decision Date: 04 March 2002
• Docket Number: No. 01-21.,01-21.
• Citation: 283 F.3d 179
• Parties: Jerry Bridwell McWEE, Petitioner-Appellant, v. Willie WELDON, Warden of Leiber Correctional Institution; Charles M. Condon, Attorney General of the State of South Carolina, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

283 F.3d 179

Jerry Bridwell McWEE, Petitioner-Appellant, v. Willie WELDON, Warden of Leiber Correctional Institution; Charles M. Condon, Attorney General of the State of South Carolina, Respondents-Appellees.

No. 01-21.

United States Court of Appeals, Fourth Circuit.

Argued January 23, 2002.

Decided March 4, 2002.

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ARGUED: John Frank Hardaway, Columbia, South Carolina; Melissa Reed Kimbrough, Columbia, South Carolina, for Appellant. Donald John Zelenka, Assistant Deputy Attorney General, South Carolina Office of the Attorney General, Columbia, South Carolina, for Appellees. ON BRIEF: Charles M. Condon, Attorney General, John W. McIntosh, Chief Deputy Attorney General, South Carolina Office of the Attorney General, Columbia, South Carolina, for Appellees.

Before LUTTIG, MICHAEL, and KING Circuit Judges.

Dismissed by published opinion. Judge LUTTIG wrote the opinion, in which Judge MICHAEL and Judge KING joined.

OPINION

LUTTIG, Circuit Judge.

During a robbery of a rural convenience store on July 6, 1991, Jerry McWee shot to death John Perry, the store clerk. A jury convicted McWee of murder and armed robbery, and the trial judge, pursuant to the jury's recommendation, sentenced McWee to death. McWee now presents several issues to this court on appeal from the district court's denial of federal habeas relief. The first three claims, pertaining to the trial court's refusal to instruct the jury on McWee's parole eligibility if sentenced to life imprisonment, were adjudicated on the merits and rejected by the South Carolina Supreme Court. See State v. McWee, 322 S.C. 387, 472 S.E.2d 235 (1996). McWee's remaining claims that his trial counsel was ineffective were adjudicated on the merits and rejected by the South Carolina post-conviction review (PCR) court. A. 3672-3737. We conclude that McWee is not entitled to habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) because the decisions of the South Carolina state courts were neither contrary to, nor an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Accordingly, we deny McWee's motion for a certificate of appealability, and dismiss his appeal.

I.

At McWee's trial, his attorneys repeatedly asked the judge to instruct the jury that if it recommended a sentence of life imprisonment, rather than death, McWee would not be eligible for parole until he served a minimum of thirty years in prison.¹ The issue first arose prior to jury selection, where McWee's attorneys sought to question prospective jurors about their understanding of parole eligibility and the meaning of life imprisonment. In a discussion between the trial judge, the prosecutors, and McWee's attorneys over whether the lawyers would be allowed to voir dire on issues relating to parole eligibility and the meaning of life imprisonment, the trial judge initially indicated that he would charge the jury on McWee's thirty-year parole ineligibility. J.A. 14 (statement of trial judge) ("I would charge that statute [referring to S.C.Code Ann. § 16-3-20(A)]."). At the end of the discussion, however, and prior to the commencement of voir dire, the trial judge ruled that he would not permit voir dire questions about parole eligibility and the meaning of life imprisonment. The judge left open the issue of whether he would, during the penalty phase of McWee's trial, charge the jury on McWee's thirty-year parole ineligibility. J.A. 34 (statement of trial judge to McWee's counsel) ("[W]e'll address ... at a later time whether or not you want that [parole eligibility] in your general charge.").

At the penalty phase of McWee's trial, McWee's attorneys again asked the judge to charge the jury on McWee's thirty-year parole ineligibility. The trial judge refused, and instead instructed the jury that the terms "life imprisonment" and "death penalty" should be given their plain and ordinary meaning. J.A. 97. McWee raises three claims based on the trial court's failure to instruct the jury on McWee's thirty year parole ineligibility.

A.

McWee's first claim is that the trial court violated his due process rights by "reneging" on a "promise" made to McWee's trial counsel prior to voir dire, that the court would in fact charge the jury on McWee's thirty-year parole ineligibility. McWee contends that this "promise" to charge the jury shaped his trial counsel's strategy during voir dire, jury selection, and presentation of evidence. And he argues that the trial court's subsequent refusal to instruct the jury on parole was a "breach of fundamental fairness" and a violation of due process. Appellant's Br. at 12-18.

As an initial matter, McWee has mischaracterized the facts by quoting statements made by the trial judge outside of their full context. Having examined the entire pre-voir dire discussion among the trial judge, the prosecutors, and McWee's attorneys, J.A. 14-40, it is obvious that the trial court did not "promise" anything regarding a parole eligibility charge. Although the judge initially indicated he would give a thirty-year charge, J.A. 14, later in the discussion the prosecutor suggested to the judge that such a charge would be improper under State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). J.A. 32-33. The trial judge then asked McWee's lawyers, "Let me get this straight. Without the jury's request, you are asking me to charge that statute in my general charge?" J.A. 34 (emphasis added). Finally, the trial judge said to McWee's lawyers "we'll address ... at a later time whether or not you want that in your general charge." J.A. 34 (emphasis added). These statements confirm that the trial judge did not "promise" McWee that he would give a thirty-year parole ineligibility charge before voir dire, and, in fact, explicitly left the issue open to be decided at a later time.

In any event, the South Carolina Supreme Court adjudicated McWee's claim on the merits and rejected it, concluding that the trial court's initial indication that it would give a parole eligibility charge had no influence on voir dire, jury selection, or presentation of the evidence. State v. McWee, 472 S.E.2d at 238. McWee has failed to meet the statutory requirement for habeas relief by demonstrating that this state court decision was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(1).

Because the record indicates that the trial judge made no promise to McWee's counsel regarding the parole eligibility charge, we need not decide whether clearly established Supreme Court precedent holds that a trial judge's unkept promise to instruct a jury on parole violates due process. We note, however, that McWee's reliance on Knox v. Collins, 928 F.2d 657 (5th Cir.1991), is unavailing to the extent that Knox is not a Supreme Court decision, and as a pre-AEDPA case, it did not purport to interpret "clearly established federal law, as determined by the Supreme Court of the United States."

B.

McWee's second and third claims are that the trial court's failure to instruct the jury that, if sentenced to life in prison, he would not be eligible for parole until he served thirty years, was contrary to or an unreasonable application of Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). The South Carolina Supreme Court also rejected these claims, holding that Simmons did not apply to McWee's sentencing proceeding because a life sentence for McWee would have included the possibility of parole. McWee, 472 S.E.2d at 238.

The state court's decision was neither contrary to nor an unreasonable application of Simmons. Justice O'Connor's concurrence in Simmons, which represents the holding of that case, see Mu'min v. Pruett, 125 F.3d 192, 199 (4th Cir.1997), explicitly limits the right to inform a jury of parole ineligibility to the circumstance where the prosecution places the defendant's future dangerousness in issue and the only available alternative sentence to death is life imprisonment without the possibility of parole. See Simmons, 512 U.S. at 178, 114 S.Ct. 2187 (O'Connor, J., concurring in the judgment) ("Where the state puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury — by either argument or instruction — that he is parole ineligible."). And we have repeatedly held that section 2254(d)(1) prohibits a federal habeas court from extending the right established in Simmons to sentencing proceedings where "life imprisonment" includes any possibility of parole. See Roach v. Angelone, 176 F.3d 210, 220 (4th Cir.1999); Keel v. French, 162 F.3d 263 (4th Cir.1998); Wilson v. Greene, 155 F.3d 396, 407-08 (4th Cir.1998); Arnold v. Evatt, 113 F.3d 1352, 1363 (4th Cir.1997). If the right recognized in Simmons is to be extended in the manner McWee seeks, that extension must be effected on direct review, not on collateral attack.

II.

McWee next contends that the performance of his trial attorneys, Carroll Bryant and James Huff, fell below the constitutional minimum for effective assistance of counsel because they: 1) did not contest McWee's competence to stand trial and they did not present an insanity defense; 2) did not conduct a reasonable investigation into McWee's social history; and 3) did not attempt to suppress evidence from a 1992 psychiatric evaluation conducted at the William S. Hall Institute. Under section 2254(d)(1), our review is limited to the...