661 F.3d 783 (4th Cir. 2011), 07-14, Elmore v. Ozmint

Docket Nº:07-14.
Citation:661 F.3d 783
Opinion Judge:KING, Circuit Judge:
Party Name:Edward Lee ELMORE, Petitioner-Appellant, v. Jon OZMINT, Director, South Carolina Department of Corrections; Henry McMaster, Attorney General, State of South Carolina, Respondents-Appellees.
Attorney:J. Christopher Jensen, Cowan, Liebowitz & Latman, PC, New York, New York, for Appellant. Donald John Zelenka, Office of the Attorney General of South Carolina, Columbia, South Carolina, for Appellees. Diana L. Holt, Diana Holt, LLC, Columbia, South Carolina, for Appellant. Henry D. McMaster, Atto...
Judge Panel:Before WILKINSON, KING, and GREGORY, Circuit Judges. Judge KING wrote the majority opinion, in which Judge GREGORY joined. Judge WILKINSON wrote a dissenting opinion. WILKINSON, Circuit Judge, dissenting:
Case Date:November 22, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 783

661 F.3d 783 (4th Cir. 2011)

Edward Lee ELMORE, Petitioner-Appellant,

v.

Jon OZMINT, Director, South Carolina Department of Corrections; Henry McMaster, Attorney General, State of South Carolina, Respondents-Appellees.

No. 07-14.

United States Court of Appeals, Fourth Circuit.

November 22, 2011

Argued: Sept. 22, 2010.

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[Copyrighted Material Omitted]

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ARGUED:

J. Christopher Jensen, Cowan, Liebowitz & Latman, PC, New York, New York, for Appellant.

Donald John Zelenka, Office of the Attorney General of South Carolina, Columbia, South Carolina, for Appellees.

ON BRIEF:

Diana L. Holt, Diana Holt, LLC, Columbia, South Carolina, for Appellant.

Henry D. McMaster, Attorney General, John W. McIntosh, Chief Deputy Attorney General, Office of the Attorney General of South Carolina, Columbia, South Carolina, for Appellees.

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Reversed and remanded by published opinion.

Judge KING wrote the majority opinion, in which Judge GREGORY joined. Judge WILKINSON wrote a dissenting opinion.

OPINION

KING, Circuit Judge:

For nearly thirty years, Edward Lee Elmore, a mentally retarded handyman,

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has been behind bars, mainly on South Carolina's death row, for the January 1982 murder of Dorothy Edwards, an elderly woman who had sporadically employed him. The 28 U.S.C. § 2254 petition now on appeal, however, is part of Elmore's very first effort to secure federal habeas corpus relief. The antecedent state proceedings— encompassing three trials and related appeals over eight years, followed by another fourteen years of state postconviction relief (" PCR" ) litigation— were, to say the least, excruciatingly protracted. And, unfortunately, these federal habeas proceedings have been prolonged, in part because of our stay of this appeal to await further state court action.

In these federal proceedings, the district court denied Elmore relief on multiple claims, previously exhausted in the South Carolina courts, challenging the constitutionality of his convictions for murder, criminal sexual conduct, and burglary, as well as his death sentence. The district court also declined to stay the federal litigation pending a final state determination of Elmore's unexhausted claim that, because he is mentally retarded, his execution is prohibited by the Eighth Amendment under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The first oral argument in this appeal, conducted on March 21, 2008, focused primarily on the stay issue. Shortly thereafter, on March 24, 2008, we entered our own stay, abating any further federal action while Elmore exhausted his Atkins claim in the state courts. Nearly two years later, on February 1, 2010, the state PCR court granted Elmore relief on that claim, vacating his death sentence and ordering that a life sentence be imposed instead. On March 10, 2010, the respondents— Jon Ozmint, Director of the South Carolina Department of Corrections, and Henry McMaster, the State's Attorney General— advised us that the state PCR court's Atkins ruling would not be further contested. The following day, March 11, 2010, we lifted our stay. Finally, on September 22, 2010, we heard additional oral argument on the issues remaining before us, i.e., those involving claims relating to the constitutionality of Elmore's convictions, rather than his now-vacated death sentence.

Having scrutinized volumes of records of Elmore's three trials and his state PCR proceedings, we recognize that there are grave questions about whether it really was Elmore who murdered Mrs. Edwards. And we are constrained to conclude— notwithstanding the demanding strictures of § 2254(d)— that Elmore is entitled to habeas corpus relief on his Sixth Amendment claim of ineffective assistance of counsel premised on his trial lawyers' blind acceptance of the State's forensic evidence. All told, Elmore's is one of those exceptional cases of " ‘ extreme malfunctions in the state criminal justice systems' " where § 2254 may appropriately be used to remedy injustice. Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in the judgment)). Accordingly, we reverse the district court's judgment denying relief and remand for the court to award Elmore a writ of habeas corpus unless the State of South Carolina endeavors to prosecute him in a new trial within a reasonable time.

I.

Elmore is alleged to have raped and murdered Mrs. Edwards and burglarized her Greenwood, South Carolina residence on the night of Saturday, January 16, 1982. Elmore, an African-American who was then twenty-three years old, performed

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odd jobs in the area to earn money. Mrs. Edwards, seventy-five years old and white, was a wealthy widow who resided alone. She had hired Elmore several times— most recently on December 30, 1981— to wash the windows and clean the gutters of her home. On Monday, January 18, 1982, the local police were alerted by Mrs. Edwards's neighbor, Greenwood County Councilman Jimmy Holloway, that he had just discovered Mrs. Edwards's body in her bedroom closet. Holloway immediately identified Elmore as a possible suspect and said that Elmore's name could be found in Mrs. Edwards's checkbook register. The following day, Tuesday, January 19, 1982, investigators matched a thumbprint on the exterior frame of the back door into the Edwards home— the murderer's likely entrance point— to Elmore. Relying on the thumbprint, the police obtained a warrant to arrest Elmore for Mrs. Edwards's murder. Elmore was arrested early the next morning, Wednesday, January 20, 1982, and has been imprisoned since that time.

The following is a summary of the extensive procedural history of this matter.

• The first trial was conducted in the Court of General Sessions for Greenwood County on April 12-19, 1982, within three months of Elmore's arrest. He was found guilty and sentenced to death.

• On November 1, 1983, the Supreme Court of South Carolina reversed Elmore's convictions, vacated his death sentence, and remanded for a new trial because the trial judge had improperly entered the jury room during the sentencing phase of the trial, without counsel for either the State or the defense; requested periodic reports on the status of jury deliberations, in " violation of elementary hornbook law" ; and directed a " highly prejudicial" and " unjustifiably coercive" supplemental instruction at a juror who was apparently voting against the death penalty. See State v. Elmore, 279 S.C. 417, 308 S.E.2d 781, 785-86 (1983).

• The second trial was conducted in Greenwood County from March 26 to April 2, 1984, and Elmore was again found guilty and sentenced to death.

• On May 16, 1985, the state supreme court unanimously affirmed Elmore's convictions and death sentence. See State v. Elmore, 286 S.C. 70, 332 S.E.2d 762 (1985). The court ruled, inter alia, that the trial judge had properly excluded sentencing-phase-only prison guard testimony offered by Elmore to show his adaptability to prison life. See id. at 764 (citing State v. Skipper, 285 S.C. 42, 328 S.E.2d 58 (1985)). On May 5, 1986, however, the Supreme Court of the United States granted certiorari, vacated the judgment, and remanded for further consideration in light of its decision in Skipper v. South Carolina, 476 U.S. 1, 4-5, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (concluding that petitioner's evidence of good behavior in jail was " relevant evidence in mitigation of punishment" that " may not be excluded from the sentencer's consideration" ). See Elmore v. South Carolina, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 353 (1986).

• The third trial— which was limited to the sentencing phase— was conducted on February 23-28, 1987, in Newberry County, as a result of Elmore's successful motion to transfer venue from Greenwood County. At the conclusion of the trial, Elmore was yet again sentenced to death.

• On August 21, 1989, the state supreme court affirmed Elmore's death sentence, see

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State v. Elmore, 300 S.C. 130, 386 S.E.2d 769 (1989), and, on June 11, 1990, the Supreme Court of the United States denied certiorari, see Elmore v. South Carolina, 496 U.S. 931, 110 S.Ct. 2633, 110 L.Ed.2d 652 (1990).

• On December 13, 1990, Elmore filed his PCR application in the Court of Common Pleas for Greenwood County. More than four years later, from February 27 to March 4, 1995, the state PCR court conducted an evidentiary hearing, and, on October 30, 1995, Elmore amended his PCR application for the final time. By order of July 3, 1997, the court denied the application in its entirety. See Elmore v. Evatt, No. 90-CP-24-1004 (S.C.Ct.C.P. July 3, 1997).

• While Elmore's appeal from the denial of his PCR application was pending in the state supreme court, the State revealed that items of physical evidence— previously sought by Elmore's lawyers in the PCR proceedings but claimed by the State to have gone missing— had recently been found. Consequently, the parties filed a joint motion to dismiss Elmore's appeal without prejudice and remand for further proceedings, which the state supreme court granted. See Elmore v. Evatt, S.C.Ct.C.P. No. 90-CP-24-1004 (S.C. Jan. 8, 1999).

• On remand, the state PCR court concluded that the once-missing evidence was of insufficient help to Elmore and, thus, yet again denied him relief. See Elmore v. Evatt, No. 90-CP-24-1004 (S.C.Ct.C.P. Feb. 21, 2001).

• In 2004, the state supreme court granted a writ of certiorari to review the state PCR court's rejection of Elmore's PCR claims, but, after briefing and oral argument, dismissed the...

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