Drayton v. Evatt, No. 23852

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtHARWELL; FINNEY; FINNEY
Citation312 S.C. 4,430 S.E.2d 517
PartiesLeroy Joseph DRAYTON, Petitioner, v. Parker D. EVATT, Commissioner, Central Correctional Institution, Respondent.
Decision Date09 June 1993
Docket NumberNo. 23852

Page 517

430 S.E.2d 517
312 S.C. 4
Leroy Joseph DRAYTON, Petitioner,
v.
Parker D. EVATT, Commissioner, Central Correctional
Institution, Respondent.
No. 23852.
Supreme Court of South Carolina.
Submitted Jan. 19, 1993.
Decided May 10, 1993.
Rehearing Denied June 9, 1993.

Page 518

[312 S.C. 6] Coming B. Gibbs of Gibbs & Holmes, Charleston, John H. Blume and Franklin W. Draper, South Carolina Death Penalty Resource Center, Columbia, and South Carolina Office of Appellate Defense, Columbia, for petitioner.

Atty. Gen. T. Travis Medlock and Chief Deputy Atty. Gen. Donald J. Zelenka, Columbia, for respondent.

HARWELL, Chief Justice:

We granted petitioner Leroy Joseph Drayton's petition for writ of certiorari to review portions of his application for post-conviction relief (PCR). Drayton alleges that the PCR judge erred in ruling that a number of issues raised by Drayton were barred from collateral review, and in finding that Drayton had received effective assistance of counsel. We disagree and affirm.

Page 519

I. FACTS

Drayton has been convicted twice on charges stemming from the death of a nineteen-year-old cashier at a Kayo gasoline station in Charleston. The convictions and sentences resulting from his first trial were reversed on direct appeal, and the case remanded. State v. Drayton, 287 S.C. 226, 337 S.E.2d 216 (1985). At retrial, Drayton was convicted of murder, armed robbery, and kidnapping. He was sentenced to death for murder, and to twenty-five years imprisonment for armed robbery. His convictions and sentences resulting from the second trial were affirmed by this Court. State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1060, 98 L.Ed.2d 1021 (1988), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).

[312 S.C. 7] On PCR, Drayton raised a number of allegations upon which he based his claim that he received ineffective assistance of counsel at his second trial. Drayton also asserted a variety of trial errors. After a lengthy hearing, the PCR judge dismissed Drayton's application on the ground that trial counsel had not performed deficiently. The PCR judge also determined that the trial errors alleged by Drayton could have been raised on direct appeal, and thus were barred from collateral review.

We granted the parties leave to brief four issues:

(1) Whether the PCR judge erred in finding that alleged trial errors were barred from collateral review;

(2) Whether trial counsel was ineffective for failing to present evidence of Drayton's future adaptability to prison;

(3) Whether trial counsel was ineffective for failing to develop testimony that Drayton knew the victim; and

(4) Whether trial counsel was ineffective in his closing argument to the jury in the sentencing phase.

II. DISCUSSION

A.

Drayton first contends that the PCR judge erred in concluding that a number of the allegations contained in his PCR application were barred from collateral review. We disagree.

In his PCR application, Drayton claimed that his rights under the Eighth and Fourteenth Amendments were violated as the result of South Carolina law that prevented him from introducing evidence that he would adapt well in prison, and that precluded the jury from receiving accurate information regarding Drayton's eligibility for parole. Drayton also asserted that his rights under the Eighth and Fourteenth Amendments were violated because the death sentence was obtained as a result of irrelevant, improper, and prejudicial testimony in the guilt phase of the trial regarding the character of the victim, as well as improper closing remarks by the solicitor in the guilt and sentencing phases of the trial. Drayton additionally contended that the trial court's penalty phase instruction regarding mitigating circumstances, and its instruction regarding the aggravating circumstance of kidnapping, [312 S.C. 8] violated his rights under the Eighth and Fourteenth Amendments. These issues were not addressed in the opinion we issued after Drayton's direct appeal.

This Court conducted an in favorem vitae review of Drayton's direct appeal of his death sentence. In favorem vitae review requires us to painstakingly inspect capital cases to determine whether prejudicial error has been committed in a trial, irrespective of whether an assignment of error has been made by the defendant. Once we discern there has been no error, that determination becomes binding on the defendant. See Moorer v. MacDougall, 245 S.C. 633, 142 S.E.2d 46 (1965).

Under the doctrine enunciated in Simmons v. State, 264 S.C. 417, 215 S.E.2d 883 (1975), errors which can be reviewed on direct appeal may not be asserted for the first time, or reasserted, in post-conviction proceedings. Under in favorem vitae review, all direct appeal errors are assumed to have been reviewed by this Court, and thus are barred from collateral attack.

Page 520

Drayton urges, however, that the rule articulated in Simmons should be inapplicable when the defendant seeking post-conviction relief has been sentenced to death. In essence, Drayton would have this Court apply in favorem vitae review to collateral proceedings brought prior to our decision abolishing in favorem vitae review. 1 Drayton cites Yates v. Aiken, 290 S.C. 231, 349 S.E.2d 84 (1986), rev'd, 484 U.S. 211, 108 S.Ct. 534, 98 L.Ed.2d 546 (1988), and Thompson v. Aiken, 281 S.C. 239, 315 S.E.2d 110 (1984), as examples of this Court's implicit acceptance of in favorem vitae review in post-conviction relief proceedings.

S.C.Code Ann. § 17-27-20(b) (1985) of the Uniform Post-Conviction Procedure Act provides that post-conviction relief "is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of direct review of the sentence or conviction." The Simmons rule gives effect to the Legislature's clear intent that the post-conviction relief procedure is not a substitute for appeal or a place for asserting errors for the first time which could have been reviewed on direct appeal. Peeler v. State, 277 S.C. 70, 283 S.E.2d 826 (1981); see also Cummings v. State, 274 S.C. [312 S.C. 9] 26, 260 S.E.2d 187 (1979); Ashley v. State, 260 S.C. 436, 196 S.E.2d 501 (1973); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973). Issues that could have been raised at trial or on direct appeal cannot be asserted in an application for post-conviction relief absent a claim of ineffective assistance of counsel. Hyman v. State, 278 S.C. 501, 299 S.E.2d 330 (1983).

We conclude that, contrary to Drayton's contention, Yates and Thompson do not stand for the proposition that we implicitly have adopted in favorem vitae review of post-conviction relief proceedings in death penalty cases. Although we addressed direct appeal issues in Yates and Thompson, we did so without discussion or consideration of section 17-27-20(b) or the Simmons rule. In our view, Yates and Thompson are contrary to the legislative intent evidenced by section 17-27-20(b). We adhere to the rule articulated in Simmons, and, in so doing, affirm the PCR judge's determination that the trial errors alleged by Drayton are barred from collateral review. 2

B.

Drayton next contends that he was denied the right to effective assistance of counsel as guaranteed by the Sixth Amendment. We disagree.

To prove ineffective assistance of counsel, a criminal defendant must show that his attorney's performance was not reasonable under prevailing norms. Strickland v. Washington, 466 U.S. 668,...

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47 practice notes
  • Tucker v. Moore, No. Civ.A. 0:98-681-8BD.
    • United States
    • U.S. District Court — District of South Carolina
    • 15 Marzo 1999
    ...of § 17-27-160(B). 6. There is no in favorem vitae review of post-conviction relief proceedings in death penalty cases. Drayton v. Evatt, 312 S.C. 4, 430 S.E.2d 517, 520 (S.C.1993), cert. denied, 510 U.S. 1014, 114 S.Ct. 607, 126 L.Ed.2d 572 (1993); Smith v. Moore, 137 F.3d 808, 821 (4th Ci......
  • State v. Lo, No. 01-0843.
    • United States
    • United States State Supreme Court of Wisconsin
    • 11 Julio 2003
    ...243 (Iowa 1999); Gassler v. State, 590 N.W.2d 769 (Minn. 1999); Carter v. State, 936 P.2d 342 (Okla. Crim. App. 1997); Drayton v. Evatt, 430 S.E.2d 517 (S.C. 1993). ¶ 48. The same result is seen in federal court decisions interpreting 28 U.S.C. § 2255. See, e.g., United States v. Samuelson,......
  • Al-Shabazz v. State, No. 24995.
    • United States
    • United States State Supreme Court of South Carolina
    • 23 Agosto 1999
    ...other errors in a proceeding, the applicant generally must frame the issue as one of ineffective assistance of counsel. Drayton v. Evatt, 312 S.C. 4, 9, 430 S.E.2d 517, 520 (1993) 338 S.C. 364 (holding issues that could have been raised at trial or in direct appeal cannot be asserted in PCR......
  • Pride v. McFadden, Civil Action No.:2:15-cv-00590-HMH-MGB
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 30 Junio 2016
    ...found that [petitioner] did not satisfy the procedural requirements to preserve this issue for appeal"); see also Drayton v. Evatt, 312 S.C. 4, 9, 430 S.E.2d 517, 520 (1993) ("Issues that could have been raised at trial or on direct appeal cannot be asserted in an application for ......
  • Request a trial to view additional results
47 cases
  • Tucker v. Moore, No. Civ.A. 0:98-681-8BD.
    • United States
    • U.S. District Court — District of South Carolina
    • 15 Marzo 1999
    ...of § 17-27-160(B). 6. There is no in favorem vitae review of post-conviction relief proceedings in death penalty cases. Drayton v. Evatt, 312 S.C. 4, 430 S.E.2d 517, 520 (S.C.1993), cert. denied, 510 U.S. 1014, 114 S.Ct. 607, 126 L.Ed.2d 572 (1993); Smith v. Moore, 137 F.3d 808, 821 (4th Ci......
  • State v. Lo, No. 01-0843.
    • United States
    • United States State Supreme Court of Wisconsin
    • 11 Julio 2003
    ...243 (Iowa 1999); Gassler v. State, 590 N.W.2d 769 (Minn. 1999); Carter v. State, 936 P.2d 342 (Okla. Crim. App. 1997); Drayton v. Evatt, 430 S.E.2d 517 (S.C. 1993). ¶ 48. The same result is seen in federal court decisions interpreting 28 U.S.C. § 2255. See, e.g., United States v. Samuelson,......
  • Al-Shabazz v. State, No. 24995.
    • United States
    • United States State Supreme Court of South Carolina
    • 23 Agosto 1999
    ...other errors in a proceeding, the applicant generally must frame the issue as one of ineffective assistance of counsel. Drayton v. Evatt, 312 S.C. 4, 9, 430 S.E.2d 517, 520 (1993) 338 S.C. 364 (holding issues that could have been raised at trial or in direct appeal cannot be asserted in PCR......
  • Pride v. McFadden, Civil Action No.:2:15-cv-00590-HMH-MGB
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 30 Junio 2016
    ...found that [petitioner] did not satisfy the procedural requirements to preserve this issue for appeal"); see also Drayton v. Evatt, 312 S.C. 4, 9, 430 S.E.2d 517, 520 (1993) ("Issues that could have been raised at trial or on direct appeal cannot be asserted in an application for ......
  • Request a trial to view additional results

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