Aquil v. State of S.C., 95-7634
| Decision Date | 26 March 1996 |
| Docket Number | No. 95-7634,95-7634 |
| Citation | 81 F.3d 148 |
| Parties | NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Karim Abdul Rahim AQUIL, Petitioner-Appellant, v. STATE of South Carolina; Attorney General of South Carolina, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Karim Abdul Rahim Aquil, Appellant Pro Se. Donald John Zelenka, Chief Deputy Attorney General, Columbia, South Carolina, for Appellees.
Before WILKINS and WILLIAMS, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
Karim Abdul Rahim Aquil appeals from the district court's order granting Respondents' motion for summary judgment on his 28 U.S.C. § 2254 (1988) petition. The exact claims raised in that petition are as follows:
A. Ineffective assistance of counsel
1. Counsel failed to object to the insufficient notice of trial.
2. Counsel failed to object to the trial court's jury charge, failed to demand to see a yellow piece of paper given by the judge to the jury foreman and failed to request a correction of the jury charge or additional charge.
3. Counsel was ineffective because he was ill and unable to function properly and was under a doctor's care at the time of trial.
4. Counsel should have objected on the record to the trial judge stating, between the time of conviction and the time of sentencing, that if the Petitioner would plead guilty to the other outstanding charges, the trial judge would not sentence Petitioner to the maximum term of imprisonment.
5. Counsel knew that the charges against the Petitioner were malicious prosecution on the part of Deputy Sheriff O'Neal.
B. Denial of due process.
1. Insufficient notice of trial date.
a. The petitioner was given one day notice of trial.
2. Malicious prosecution on the part of the State.
3. The trial judge refused to allow the Petitioner to present the undercover participant in his defense.
4. The Petitioner was denied his right to a direct appeal, in that trial counsel failed to perfect the appeal.
C. Denial of a fair and impartial trial.
1. Perjury testimony by State's witness.
a. One State witness testified that she had not been wearing a listening device at the time of the drug buy, which conflicted with testimony of two other witnesses that she had been wearing such a device.
2. The trial judge made a highly prejudicial jury charge.
3. The trial judge was guilty of misconduct, prejudice, and bias.
D. Denial of Fifth and Fourteenth Amendment rights.
1. The trial court allowed the State to use its peremptory challenges in a racially discriminatory manner. E. Denial of Sixth and Fourteenth Amendment rights.
1. Trial attorney failed to move for a continuance when he was not prepared to go to trial.
2. Trial counsel failed to subpoena witnesses necessary to the defense presented on Petitioner's behalf.
3. Trial counsel did not advise Petitioner that he should testify after establishing a defense strategy making Petitioner's testimony necessary.
4. Trial counsel admitted during evidentiary hearing on Post Conviction Relief that he rendered ineffective assistance to his client (Petitioner).
Claims A2, A3 A4, and A5 were never properly presented to the Supreme Court of South Carolina. If Aquil were to attempt to present them before that court now, however, he would be barred by South Carolina law. S.C.Code Ann. § 17-27-90 (Law.Co-op.1985); Land v. State, 274 S.C. 243, 246, 262 S.E.2d 735, 737 (1980). Aquil has shown no cause for lifting this bar and accordingly they are dismissed as barred. See Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir.1995), petition for cert. filed, --- U.S.L.W. --- (U.S. Feb. 27, 1996) (No. 94-4008). Claims B2 and C2 were never raised at trial and therefore are barred by South Carolina's contemporaneous objection rule and not subject to federal review. Peeler v. State, 277 S.C. 70, 283 S.E.2d 826 (1981).
Regarding Aquil's claims A1, B4, C1, D1, E1, and E2, we deny a certificate of probable cause to appeal and dismiss on the reasoning of the district court. Aquil v. South Carolina, No. CA-93-1311-3-22BC (D.S.C. Sept. 15, 1995). We also dismiss claims E3 and E4, finding that they were not preserved for appellate review. Aquil filed only general objections to the magistrate judge's denial of relief based on claims E3 and E4 and therefore waived de novo review by the dis trict court. See Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Aquil thereby also waived appellate review of claims E3 and E4. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91, 93 (4th Cir.1984), cert. denied, 467 U.S. 1208 (1985). We address Aquil's remaining claims--B1, B3, and C3--on the merits.
Addressing claim B1 first, we initially note that a denial of a continuance may state a due process violation in relation to its effect on a petitioner's ability to secure witnesses. See Shirley v. North Carolina, 528 F.2d 819 (4th Cir.1975) (). However, to obtain a continuance to secure the attendance of a witness, the moving party must show: " 'who [the witnesses] are, what their testimony will be, that it will be relevant under the issues in the case and competent, that the witnesses can probably be obtained if the continuance is granted, and that due diligence has been used to obtain their attendance for the trial as set.' " United States v. Clinger, 681 F.2d 221, 223 (4th Cir.) (quoting Neufield v. United States, 118 F.2d 375, 380 (D.C.Cir.1941)), cert. denied, 459 U.S. 912 (1982). Our review reveals no sign that...
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