Atkins v. Moore, C.A. No. 3:96-2859-22 (D. S.C. 6/10/1997), C.A. No. 3:96-2859-22.

Decision Date10 June 1997
Docket NumberC.A. No. 3:96-2859-22.
CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina



Petitioner, a death-row inmate, brought this habeas corpus action, pursuant to 28 U.S.C. § 2254, on January 15, 1997. He claims numerous errors arising from his three murder convictions, capital sentencing proceeding and subsequent state reviews spanning a 27 year period. There is no dispute that Petitioner actually killed three people, but he challenges whether those killings constitute murder, and what consequences may attach to those convictions. The matter is before the court on Respondents' Motion for Summary Judgment on all claims asserted in the Petition for Writ of Habeas Corpus.

For the reasons set forth below, the court finds that Respondents' Motion for Summary Judgment is well-founded and should be GRANTED. Other pending motions are decided as well.

Pursuant to an expedited briefing schedule established by the court by order of January 15, 1997, and amended on February 4, 1997, Respondents (hereinafter "the State") filed their Return and Motion and Memorandum in Support of Summary Judgment on February 28, 1997. The State submitted a Supplemental Return on March 4, 1997. This included additional materials relating to state postconviction proceedings arising out of the two 1985 murders for which Petitioner was convicted and the separate state postconviction proceedings commenced in 1987 arising out of the 1970 murder for which Petitioner was also convicted. The 1970 conviction served as the sole aggravating circumstance for Petitioner's current death sentences. On April 1, 1997, Petitioner, by appointed counsel, filed his Memorandum of Law in Support of the Petition for Writ of Habeas Corpus and in Opposition to Respondents' Motion for Summary Judgment. On the same date Petitioner also filed his Motion for an Evidentiary Hearing and a Motion to Expand and Correct the Record.

In order to meet the time requirements established in the Fourth Circuit Judicial Council's Order No. 113 dated October 3, 1996, (district courts henceforth required to render a decision in a death penalty case within 180 days of the date of the petition being filed), this case was not referred to a United States Magistrate Judge for a Report and Recommendation. Rather, this court has conducted all proceedings and completed the appropriate review. The court has now reviewed the extensive record in this matter, including the twelve-volume Appendix ordered by the court to be filed in September 1996, four months before the Petition's filing date,1 as well as all subsequently filed briefs and records. The court finds that all issues have been amply briefed and argued, where necessary, and that all matters are ripe for adjudication.


The following facts are drawn from the complete record before the court.

Events relevant to the Petition begin in 1970 shortly after Petitioner returned to Charleston from a tour of active duty in Vietnam. Petitioner and his brother, Charles, were visiting friends on December 31, 1969, when the two brothers had an altercation. Petitioner left the friends' residence, and returned to his father's house, a distance of several miles. In an agitated state, he then retrieved, over his father's objections, a shotgun and returned to the friends' residence, where he fatally shot his brother. As he left the friends' home, Petitioner shot out the front windows of the residence.

Petitioner was indicted at the March 1970 term of General Sessions Court for Charleston County. He was represented by retained counsel, Thomas P. Lesesne, III, who is now deceased. Mr. Lesesne had previously represented Charles. The Solicitor, Robert Wallace, had agreed to a plea of voluntary manslaughter. Accordingly, on May 28, 1970, the Solicitor, Mr. Lesesne and Petitioner appeared before Judge Clarence Singletary. When asked to give the court his version of events Petitioner answered "he [Charles] reached back like this in his back pocket where he had his gun, and I was scared he was going to shoot." (Supp. App. I at 16-17). Judge Singletary explained he could not accept a manslaughter plea if Petitioner claimed he shot in self-defense. The guilty plea was aborted, and Petitioner proceeded immediately to trial. The jury rejected Petitioner's claim of self-defense and found Petitioner guilty of murder, recommending mercy. Petitioner was sentenced to life imprisonment. On June 8, 1970, Mr. Lesesne filed a Notice of Intent to Appeal. The appeal, however, was never perfected. It was, therefore, deemed abandoned. Petitioner was paroled from the 1970 conviction on March 14, 1980. After his release from prison, Petitioner returned to North Charleston to live, where he occupied one-half of a duplex owned by his father, Benjamin Atkins. Petitioner worked odd jobs and had a habit of drinking regularly. His girlfriend, Linda Walters, lived with him.

Petitioner's father lived in the other half of the duplex. A rental house owned by the father was located behind the duplex. In the spring of 1985, Mr. Aaron Polite, his wife, Fatha Patterson, and their thirteen-year old daughter, Karen Patterson, moved into the rental home. Petitioner was barely acquainted with Mr. Polite and his family. Petitioner's dealings with them were limited to casual greetings.

Petitioner and a neighbor, Arthur Henderson, were drinking heavily on the night of Saturday, October 26, 1985. They bought and consumed two and one-half pints of Smirnoff Vodka. Petitioner returned home early the next morning. At about 6:30 a.m., while the Polite family was asleep, Mr. Polite awakened to see Petitioner, carrying a machete and a sawed-off shotgun, walking from the back of the rental house to his side of the duplex. Mr. Polite awakened Fatha, and related what he had seen. She began to call Petitioner's father, Benjamin Atkins, but found that the phone lines were dead. Upon inspection of the outside telephone wires, Aaron and Fatha discovered that their phone lines had been cut. Aaron returned to the bedroom, and Fatha left to alert Petitioner's father.

Shortly thereafter, Aaron heard a gunshot from within his house. He spotted Petitioner, armed with a sawed-off single-shot shotgun, standing at the doorway of Karen's bedroom. Petitioner began shooting in Aaron's direction, but Aaron jumped out of the line of fire, running into the yard. Petitioner pursued Aaron, and continued discharging the weapon. After Aaron ran into the street, Petitioner retreated and headed for his father's home.

Petitioner's father and Fatha heard the gunshots and summoned the police. Fatha opened the screen door of the father's duplex and spotted Petitioner aiming the shotgun at her. As she backed away screaming, Petitioner's father stepped out onto the porch. Petitioner shot his father in the right shoulder area. The father staggered back into his kitchen, where he collapsed and died.

Fatha shut the door and ran to the bedroom to get a telephone. Petitioner began shooting randomly at the side of the duplex, where gunshots came through the wall. Petitioner also shot out a window in his father's car. Petitioner mounted his motorcycle and began pulling out of the driveway. Aaron and Fatha ran to their house to check on Karen. They found her in her bed lying in a pool of blood caused by a massive gunshot wound to the head. She also suffered a wound to her right hand. Karen was taken to the hospital, where she died a few hours later.

In the meantime, a neighbor, Detective Schuster of the Charleston police, had just gone off-duty and was returning home at the time of the shooting. He saw the flash of gunfire and Petitioner pulling out of the driveway, with a revolver in his back pocket. Schuster called for backup, and pursued Petitioner for four miles. Schuster and other officers then subdued Petitioner as he fell off his motorcycle and arrested him. Police retrieved the shotgun a few blocks from Petitioner's house, along the escape route. The machete and shotgun shells were retrieved from the backyard.

A. 1970 Murder Conviction

This case presents a long and convoluted procedural history of Petitioner's convictions of the 1970 and 1985 killings.

Petitioner was indicted in January 1986 for two counts of murder, burglary, unlawful possession of a sawed-off shotgun, two counts of assault with intent to kill, and unlawful possession of a pistol. The solicitor sought the death penalty for each killing, claiming that Petitioner's 1970 murder conviction served as an aggravating circumstance.

On June 6, 1986, just prior to trial on the 1985 killings, Petitioner filed an Application for Post Conviction Relief (hereinafter "PCR") claiming ineffective assistance of counsel in the 1970 conviction. Petitioner was appointed PCR counsel, Frank Barnwell. In his application Petitioner claimed that he had ineffective assistance of counsel at the 1970 trial, that no transcript had ever been prepared, that he had no counsel to perfect a direct appeal, and that his trial counsel had not perfected the appeal. On the application Petitioner explained that "my notice of appeal was filed, but the appeal was never perfected for want of the necessary fees and costs for which I was without resources to pay." (1970 PCR App. p. 2, § 6.) He stated that his father, who he fatally shot in 1985, had converted money from the sale of Petitioner's car, which was to have been used to finance the appeal. The PCR proceeding continued through the state courts.2 Prior to the time of hearing, however, 1970 trial counsel Lesesne died on October 3, 1986. In March 1987, Respondents moved to have the PCR application summarily dismissed on the basis of Petitioner's...

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