Green v. Catoe

• Citation: 220 F.3d 220
• Decision Date: 04 May 2000
• Docket Number: No. 99-30,99-30
• Parties: (4th Cir. 2000) ANTHONY GREEN, Petitioner-Appellant, v. WILLIAM D. CATOE, Director, South Carolina Department of Corrections; CHARLES M. CONDON, Attorney General, State of South Carolina, Respondents-Appellees. . Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 220

220 F.3d 220 (4th Cir. 2000)

ANTHONY GREEN, Petitioner-Appellant, v. WILLIAM D. CATOE, Director, South Carolina Department of Corrections; CHARLES M. CONDON, Attorney General, State of South Carolina, Respondents-Appellees.

No. 99-30.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: May 4, 2000.

Decided: August 1, 2000.

Appeal from the United States District Court for the District of South Carolina, at Greenville.

Patrick Michael Duffy, District Judge. (CA-96-3277-6-18AK) COUNSEL ARGUED: Leonard M. Singer, CRAIGHEAD GLICK, L.L.P., Boston, Massachusetts, for Appellant. Donald John Zelenka, Assistant Deputy Attorney General, SOUTH CAROLINA OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina, for Appellees. ON BRIEF: Teresa L. Norris, CENTER FOR CAPITAL LITIGATION, Columbia, South Carolina, for Appellant.

Before WILKINS, MOTZ, and KING, Circuit Judges.

Affirmed by published opinion. Judge King wrote the majority opinion, in which Judge Wilkins joined. Judge Motz wrote a dissenting opinion.

OPINION

KING, Circuit Judge:

Anthony Green appeals from the judgment of the district court in South Carolina denying his petition for habeas corpus relief. In this appeal, Green challenges the dismissal of two claims: (1) that the Supreme Court of South Carolina denied him procedural due process in the course of resolving his direct appeal; and (2) that he was denied effective assistance of counsel at sentencing, in violation of the Sixth Amendment. We have carefully considered these claims and agree that Green is not in custody in violation of the Constitution or laws of the United States. We therefore affirm the judgment of the district court.

I.

In the afternoon of November 21, 1987, Susan Babich parked her car in the rear lot of the Charles Towne Square Shopping Mall in Charleston, South Carolina. After shopping at the mall, she returned to her car; before she could drive away, however, she was approached by Green, who advanced rifle in hand. Green then shot Ms. Babich in the head, stole her pocketbook, and fled the scene in another car. Based on a description from an eyewitness, the police soon apprehended Green in the vicinity of the mall. The police found the rifle and Ms. Babich's checkbook in Green's car, and Green ultimately gave a statement admitting to his involvement in these crimes.

Green was tried by jury in Charleston County, South Carolina. The jury found Green guilty of murder and armed robbery and, after a separate sentencing proceeding, recommended a sentence of death. On direct appeal, the Supreme Court of South Carolina upheld Green's conviction and sentence. See State v. Green, 392 S.E.2d 157, 158 (S.C. 1990). Following the exhaustion of his remaining state remedies, including an application for post-conviction relief, Green filed a petition for federal habeas corpus relief. The district court then considered and dismissed his petition. With its dismissal, the district court granted Green a certificate of appealability to this Court. See 28 U.S.C. § 2253. From the dismissal, Green brings this appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

A.

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant a writ of habeas corpus unless the state's adjudication of a claim resulted in "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). As the Supreme Court recently made clear:

[Section] 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. . . . Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000).

In this appeal, Green asserts two constitutional grounds for habeas corpus relief: (1) a Due Process violation and (2) a Sixth Amendment violation. With respect to Green's Sixth Amendment claim, the South Carolina trial court that considered Green's application for postConviction relief (the "state PCR court") issued an extensive opinion explaining why Green was not entitled to relief on that basis. However, the separate Due Process claim raised by Green is in a different procedural posture, since it was only presented to the Supreme Court of South Carolina in the petition for rehearing submitted to that court following resolution of Green's direct appeal. The"adjudication" of this claim is explained by two sentences: "Petition for Rehearing is denied," signed by four Justices; and "I would grant," signed by one Justice.

Under our precedent, this perfunctory rejection of Green's Due Process claim does constitute an "adjudication" for purposes of section 2254(d)(1). See Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir. 1998); Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir. 1998). Nonetheless, as we made clear in Cardwell:

[B]ecause the state court decision fails to articulate any rationale for its adverse determination of Cardwell's claim, we cannot review that court's "application of clearly established Federal law," but must independently ascertain whether the record reveals a violation of [a constitutional right]. . . . Where, as here, there is no indication of how the state court applied federal law to the facts of a case, a federal court must necessarily perform its own review of the record. Thus, on the facts of this case, the distinction between de novo review and "reasonableness" review becomes insignificant.

Cardwell, 152 F.3d at 339 (emphasis added) (quotation omitted). Accordingly, because there is no indication of how the Supreme Court of South Carolina applied federal law to the facts of Green's Due Process claim, we must review that claim under the Cardwell standard.

B.

During jury selection, the trial court declined to remove three jurors, whom Green had moved to excuse for cause, from the jury venire, so Green used peremptory challenges on all three. Green ultimately exhausted his peremptory challenges, after which two jurors were seated on the jury that convicted Green and condemned him to death.

Green asserts that under the law of South Carolina, as it existed prior to the resolution of his direct appeal, he was entitled to a new trial if he made two showings: (1) that he had been forced to use a peremptory challenge on a venireperson who should have been excused for cause, and (2) that he had exhausted his peremptory challenges before the jury was impaneled. On direct review, the Supreme Court of South Carolina concluded that the trial court had erred in denying Green's motion to excuse, for cause, one of the three jurors at issue. Green, 392 S.E.2d at 159-61. According to Green, at that point, he had satisfied the two then-existing prerequisites for a new trial. However, in his direct appeal, the Supreme Court of South Carolina declined to award Green a new trial, instead imposing what Green characterizes as a "new" third requirement -that "this error deprived him of a fair trial" (the "fair trial element"). Green, 392 S.E.2d at 160. Because Green could not make this third showing, he was denied a new trial by the Supreme Court of South Carolina. Green asserts that the imposition of this fair trial element, which previously had not been required under South Carolina law, was effected without proper notice, in violation of his right to procedural due process. Specifically, Green asserts that the law was changed and retroactively applied to his appeal, and if he had been given proper notice, he could have (1) made a record at trial sufficient to demonstrate that he had been denied a fair trial, and (2) argued against a change in the law on direct appeal.

1.

Before turning to the merits of Green's Due Process claim, we note that the State agrees with Green that this claim has been properly preserved; indeed, it could not have argued otherwise. The alleged Due Process violation arose from the Supreme Court of South Carolina's resolution of his direct appeal; thus, this claim could not have been raised prior to Green's petition for rehearing thereon. In Sellers v. Boone, 200 S.E.2d 686, 687 (S.C. 1973), the Supreme Court of South Carolina stated that if an error arose out "of [an] affirmance by an appellate court," an appellant may seek a review of the alleged error on the merits in a petition for rehearing. Green included his argument in his petition for rehearing, and we thus agree with the State that Green presented the Due Process claim to the State, the State adjudicated the claim, and Green has exhausted his state remedies with respect to the claim.

2.

Under the Fourteenth Amendment, no state "may deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Inasmuch as Green has alleged a deprivation of procedural due process, our analysis involves two steps. Stewart v. Bailey, 7 F.3d 384, 392 (4th Cir. 1993). First, we must determine "whether there exists a liberty or property interest which has been interfered with by the State." Id. Second, we must ascertain "whether the procedures attendant upon that deprivation were constitutionally sufficient." Id.

a.

With respect to the first step of the Due Process analysis, many state-created rights have been accorded the status of liberty or property...