Roller v. McKellar

• Decision Date: 18 April 1989
• Docket Number: Civ. A. No. 3:88-288-15J.
• Citation: 711 F. Supp. 272
• Court: U.S. District Court — District of South Carolina
• Parties: Gary Lee ROLLER, Petitioner, v. Ken McKELLAR, Warden SCDC, CCI, and Travis Medlock, Attorney General of South Carolina, Respondents.

711 F. Supp. 272

Gary Lee ROLLER, Petitioner, v. Ken McKELLAR, Warden SCDC, CCI, and Travis Medlock, Attorney General of South Carolina, Respondents.

Civ. A. No. 3:88-288-15J.

United States District Court, D. South Carolina, Columbia Division.

April 18, 1989.

COPYRIGHT MATERIAL OMITTED

Gary Lee Roller, pro se.

T. Travis Medlock, Atty. Gen., Donald J. Zelenka, Chief Deputy Atty. Gen., Salley W. Elliott, Asst. Atty. Gen., Columbia, S.C., for respondents.

ORDER

HAMILTON, District Judge.

Petitioner, a state prisoner proceeding pro se, has filed the present action seeking federal habeas corpus relief, 28 U.S.C. § 2254. The matter is presently before the court on the respondents' motion for summary judgment and petitioner's motion for partial summary judgment. Rule 56, Fed. R.Civ.Proc.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 19.00, D.S.C., this matter was referred to United States Magistrate Robert S. Carr for a report and recommendation. Magistrate Carr found that petitioner's allegations were without merit and recommended that this court grant respondents' motion for summary judgment. Petitioner filed timely objections to the magistrate's report and recommendation. After reviewing the magistrate's report and recommendation, the petitioner's objections, the record, and the applicable law, the court agrees with the magistrate that respondents are entitled to summary judgment on all claims. Rule 56, Fed.R.Civ. Proc.

Procedural History

Petitioner, Gary Lee Roller, was indicted at the January, 1983 term of the Court of General Sessions for Chester County for murder and grand larceny of a motor vehicle. When he was arrested by law enforcement officers, petitioner was naked and covered with blood on a freezing cold night. He admitted to shooting the victim, a truck driver, twice in the head with a pistol, but contended at trial that he did so defending himself from a homosexual attack. Petitioner was driving the victim's tractor trailer truck when apprehended.

After a trial by jury on March 21-24, 1983, he was found guilty of voluntary manslaughter and grand larceny. The Honorable George F. Coleman sentenced him to thirty (30) years imprisonment for manslaughter and five (5) years for grand larceny, his sentences to run consecutively. Petitioner filed a timely notice of intent to appeal with the South Carolina Supreme Court. The Supreme Court affirmed the judgment of the lower court pursuant to its Rule 23. State v. Roller, Memo.Op. No. 84-MO-143 (S.C.Sup.Ct. July 5, 1984).

Thereafter, petitioner applied for state post-conviction relief (PCR). A hearing was held on September 27, 1985, at which time the petitioner was present in court and represented by his court appointed attorney, Milton Hamilton, Esquire. During the hearing, petitioner testified in his own behalf. Tyre D. Lee, Esquire, petitioner's trial attorney, also testified. After taking the matter under advisement, the Honorable Edward B. Cottingham issued an Order on October 24, 1985, dismissing petitioner's application for PCR. Petitioner filed a timely petition for a writ of certiorari with the South Carolina Supreme Court, but that court denied his petition on July 10, 1986.

On February 2, 1988, petitioner filed his application for federal habeas corpus relief, in which he alleges that he is being held in custody unlawfully because: (1) the trial record contains insufficient evidence to support his conviction for grand larceny; (2) the trial court erred in admitting numerous bloody, gruesome photographs of the victim, whose prejudicial effect far outweighed their probative value; (3) petitioner's inculpatory statements to law enforcement officers were "involuntary" and, therefore, inadmissible; and (4) trial counsel was ineffective in a number of respects.

Discussion

The court notes that petitioner has failed to exhaust his state remedies with regard to most of the issues that he raises in his ineffective assistance of counsel claim. See infra p. 281. But because respondents have stipulated that petitioner has no available state remedies left to pursue, Respondents' Brief at 6-7, they have waived their right to object to the habeas corpus petition on that ground. Praylow v. Martin, 761 F.2d 179, 182 n. 2 (4th Cir.), cert. denied, 474 U.S. 1009, 106 S.Ct. 535, 88 L.Ed.2d 466 (1985); see also Sweezy v. Garrison, 694 F.2d 331 (4th Cir.1982) cert. denied, 461 U.S. 908, 103 S.Ct. 1882, 76 L.Ed.2d 812 (1983). Therefore, it is appropriate for this court to consider petitioner's application on its merits.

In his first ground for habeas corpus relief, petitioner alleges that the record lacks sufficient evidence to support his conviction for grand larceny, and, therefore, the trial court erred in denying his motion for a directed verdict on that charge. Petitioner points out that, under South Carolina law, the offense of grand larceny requires the theft of goods valued at Two Hundred ($200.00) Dollars or more. S.C.Code Ann. §§ 16-1-10 and 16-13-30 (Law.Co-op.1985). He alleges that the record lacks any evidence that the item he stole, an operational tractor trailer truck, had a value in excess of Two Hundred ($200.00) Dollars. Since the record lacks any evidence on an essential element of the offense of grand larceny, petitioner contends that the trial court should have directed a verdict in his favor on that charge. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (holding that sufficiency of evidence is a federal constitutional claim).

Respondents do not dispute that the record in this case lacks testimony that the tractor trailer truck stolen by petitioner had a value in excess of Two Hundred ($200.00) Dollars. They point out, however, that petitioner's trial counsel failed to move for a directed verdict on the ground that the record lacked evidence of value.¹ Under South Carolina's contemporaneous-objection rule, matters not presented to or passed upon by the trial judge are procedurally defaulted. See, e.g., State v. Newton, 274 S.C. 287, 262 S.E.2d 906 (1980); State v. Jordan, 255 S.C. 86, 93, 177 S.E.2d 464, 468 (1970). Respondents contend, therefore, that petitioner cannot pursue this claim in federal court absent a showing of cause and prejudice under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (holding that a federal habeas petitioner who has failed to comply with a state's contemporaneous-objection rule at trial must show cause for the procedural default and prejudice attributable thereto in order to obtain review of his defaulted constitutional claim).

Petitioner raised this identical issue on direct appeal, and the South Carolina Supreme Court affirmed his conviction pursuant to its Rule 23² without indicating whether it dismissed this particular claim on the merits or on procedural grounds.³ If the South Carolina Supreme Court had relied expressly upon the State's contemporaneous-objection rule in dismissing this claim, federal habeas review clearly would be barred under Sykes and its progeny unless petitioner could demonstrate cause and prejudice. Conversely, if the State Supreme Court dismissed this claim on the merits, without alternatively relying on the State's contemporaneous-objection rule, then it would have implicitly excused petitioner's procedural default, and there would be no basis for this court to refuse to consider the merits of this claim. Harris v. Reed, ___ U.S. ___, 109 S.Ct. 1038, 1044 n. 12, 103 L.Ed.2d 308 (1989) (citing Ulster County Court v. Allen, 442 U.S. 140, 142-54, 99 S.Ct. 2213, 2217-23, 60 L.Ed.2d 777 (1979)); see also Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985); Baker v. Muncy, 619 F.2d 327, 329 (4th Cir.1980). The difficult question presented here is: what to do when it is unclear whether the state court relied on a procedural bar in dismissing a federal constitutional claim?⁴

The United States Supreme Court in Harris v. Reed, 109 S.Ct. 1038 (1989) recently addressed this question in a context similar to the one faced by this court. The habeas petitioner in Harris violated a state procedural bar rule by not raising his ineffective assistance of counsel claim on direct appeal. When he raised this claim at the PCR stage, the state appellate court dismissed the claim without clearly relying on the state procedural bar as an independent ground for dismissal. The state appellate court's opinion only made ambiguous reference to the applicable state procedural bar, while going on to rely on federal law in rejecting petitioner's ineffectiveness claim on its merits.

In determining whether petitioner's claim was procedurally barred under Sykes, the Supreme Court in Harris ruled that the mere fact that a federal habeas petitioner failed to abide by a state procedural rule does not, in and of itself, prevent federal habeas review. Id. at 1042. According to the Court, "the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case," before Sykes would preclude federal review. Id. In an attempt to solve the problem of ambiguous state-court references to state procedural bar rules, the Court held that "a procedural default does not bar consideration of a federal claim on ... habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Id. at 1043 (citing Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed. 2d 231 (1985) and Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983)).⁵

Unlike the state appellate court in Harris, the State Supreme Court in this case did not issue an opinion in which it made an ambiguous reference to a state procedural bar while clearly relying on federal law. It could be argued, therefore, that Harris simply does not apply in this context. On the other hand, the State...