882 F.2d 895 (4th Cir. 1989), 89-6519, Smith v. State of S.C.

Docket Nº:89-6519.
Citation:882 F.2d 895
Party Name:Alton B. SMITH, Petitioner-Appellant, v. STATE OF SOUTH CAROLINA, Respondent-Appellee.
Case Date:August 21, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 895

882 F.2d 895 (4th Cir. 1989)

Alton B. SMITH, Petitioner-Appellant,

v.

STATE OF SOUTH CAROLINA, Respondent-Appellee.

No. 89-6519.

United States Court of Appeals, Fourth Circuit

August 21, 1989

Argued June 9, 1989.

Page 896

W. Gaston Fairey (J. Christopher Mills, Fairey and Parise, P.A., on brief), Columbia, S.C., for petitioner-appellant.

Donald J. Zelenka, Chief Deputy Atty. Gen. (T. Travis Medlock, Atty. Gen., Columbia, S.C., on brief), for respondent-appellee.

Before CHAPMAN and WILKINSON, Circuit Judges, and SPENCER, United States District Judge for the Eastern District of Virginia, sitting by designation.

SPENCER, District Judge:

Alton B. Smith appeals the the district court's denial of his petition for habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1986). We affirm the decision of the district court.

I.

An indictment brought at the February, 1983 term of the Court of General Sessions for Lexington County, South Carolina charged Smith with one count of criminal conspiracy and five counts of violating South Carolina's criminal sexual conduct statute, S.C.Code Ann. Secs. 16-3-651 to 16-3-659.1 (Law.Co-op.1985), 1 in both the first and second degree and as a principal as well as an accessory. The charges accused Smith and his girlfriend, co-defendant Miriam Shull, of forcing Shull's minor son, Gary O'Neal Shull, to participate in various sexual acts with his mother. The evidence at trial showed that there were over one hundred forced "sex sessions" between Gary and Miriam Shull in a four year period. On February 16, 1983, a jury found Smith guilty on all counts. The trial court sentenced Smith to consecutive terms of five years on the conspiracy count, thirty years for each of the two first degree counts, and twenty years for each of the three second degree counts.

On appeal to the South Carolina Supreme Court, Smith raised four issues: (1) whether the trial court improperly admitted irrelevant and prejudicial evidence; (2) whether the trial court improperly allowed the jury to view evidence which was later suppressed; (3) whether the trial court violated due process when it initially denied Smith's motion to suppress the evidence later excluded; (4) whether the trial court improperly denied Smith's request for a limiting jury instruction. However, Smith's counsel on appeal, William Diggs of the South Carolina Office of Appellate Defense, refused Smith's demand to argue that South Carolina's criminal sexual conduct statute was unconstitutionally vague. Smith wished to argue that he had no notice that the statute encompassed sexual conduct where there was no penetration of the victim's body. He argues that the South Carolina Supreme Court's subsequent interpretation of the statute to require penetration of the victim, State v. Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986), demonstrates the reasonableness

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of his belief that his conduct was not criminal.

The South Carolina Supreme Court affirmed Smith's conviction on June 1, 1984. The United States Supreme Court denied certiorari on October 1, 1984. Smith filed an application for post conviction relief pursuant to S.C.Code Ann. Sec. 17-27-10 et seq. (Law.Co-op.1985) on December 9, 1984. The application was dismissed on May 13, 1986. Smith appealed the dismissal to the South Carolina Supreme Court, but that court declined to hear Smith's appeal.

Smith then filed the present petition for writ of habeas corpus in federal court on December 11, 1987. The matter was referred to a United States magistrate William Catoe, who filed a report...

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