Shaw v. Martin

• Citation: 733 F.2d 304
• Decision Date: 26 April 1984
• Docket Number: No. 83-6272,83-6272
• Parties: Joseph Carl SHAW, Appellant, v. Joseph R. MARTIN, Warden, Central Correctional Institution, and Hon. Daniel R. McLeod, Attorney General for South Carolina, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 304

733 F.2d 304

Joseph Carl SHAW, Appellant, v. Joseph R. MARTIN, Warden, Central Correctional Institution and Hon. Daniel R. McLeod, Attorney General for South Carolina, Appellees.

No. 83-6272.

United States Court of Appeals Fourth Circuit.

Argued Feb. 9, 1984.

Decided April 26, 1984.

Stephen B. Bright, Atlanta, Ga. (John D. Delgado, Furr & Delgado, Kenneth M. Suggs, Suggs & Kelly, Columbia, S.C., on brief), for appellant.

Donald J. Zelenka, Asst. Atty. Gen., Columbia, S.C. (T. Travis Medlock, Atty. Gen., Columbia, S.C., on brief), for appellees.

Before WIDENER, PHILLIPS and SPROUSE, Circuit Judges.

WIDENER, Circuit Judge.

Shaw appeals the district court's judgment in favor of the South Carolina authorities on his petition brought for habeas corpus relief. We find no merit in Shaw's contentions, and affirm the judgment of the district court.

Background

Shaw pleaded guilty as a principal ¹ to armed robbery, kidnapping, criminal sexual conduct, two counts of conspiracy, and two counts of murder. The evidence at his sentencing hearing, conducted by the court without a jury as required by S.C.Code Sec. 16-3-20(B), disclosed that after drinking beer and partaking of drugs, Shaw, James Terry Roach, and Ronald Eugene Mahaffey decided on October 29, 1977, in Mahaffey's words, to "see if we could find a girl to rape." The three drove to a baseball park northeast of Columbia, South Carolina, and pulled up beside a parked car occupied by 17-year-old Thomas Taylor and 14-year-old Carlotta Hartness. At a signal from Shaw, Roach leveled a .22-caliber rifle at Taylor and demanded money. Taylor gave the three his wallet. Shaw and Mahaffey got out of the car, and Mahaffey took the keys out of Taylor's car. Shaw ordered Miss Hartness out of the car and forced her into the back seat of his car with Mahaffey. Shaw got back into his car, turned to Roach, and said, "OK, now." Roach then shot and killed Taylor as he sat in his car.

Miss Hartness was taken to a dirt road some distance away, was forced to disrobe, was raped once each by Roach and Mahaffey and twice by Shaw, and forced to perform oral sex by both Shaw and Mahaffey. Shaw then asked who would shoot Miss Hartness, and Roach volunteered. Shaw instructed Miss Hartness to put her face to the ground. When she refused and pleaded for her life, he drew a circle in the dirt, drew an X inside the circle, and told Miss Hartness to put her head in the circle. She again refused. Shaw told her a third time to put her head on the ground, and she complied. Roach then shot Miss Hartness in the head, and, according to Mahaffey's testimony, Shaw said Miss Hartness "wasn't dead yet" and took the rifle from Roach and again shot Miss Hartness in the head.

Shaw, Roach, and Mahaffey left Miss Hartness' body, disposed of the rifle and bullets, and returned to Taylor's car to satisfy themselves that Taylor was dead. Later that night, Shaw returned to the scene of Miss Hartness' killing and mutilated her body. State v. Shaw, 273 S.C. 194, 197-98, 255 S.E.2d 799, 800-01, cert. denied, 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329 (1979).

After taking testimony on extenuation, mitigation, and aggravation, as required under S.C.Code Sec. 16-3-20(B), the sentencing judge found that three of the statutory aggravating circumstances were present: murder was committed while in the commission of rape, murder was committed while in the commission of kidnapping, and murder was committed while in the commission of armed robbery. See S.C.Code Sec. 16-3-20(C)(a)(1)(a), (c), (e). In mitigation, the judge found that Shaw had no significant history of prior criminal activity involving the use of violence against another person, that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and he considered the age or mentality of the defendant at the time of the crime as a mitigating factor. See S.C.Code Sec. 16-3-20(C)(b)(1), (2), (6), (7). Finding that at least one of the statutory aggravating circumstances was present, that the death sentence was warranted under the evidence of the case, and that the death penalty was not the result of prejudice, passion, or any other arbitrary factor, all required findings under S.C.Code Sec. 16-3-20(C), the judge entered sentences of death for Shaw on the murder charges. ² The South Carolina Supreme Court affirmed on appeal; and, in its first mandatory review of a death sentence under the state's current death penalty statutes, see S.C.Code Sec. 16-3-25, found that the sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor, that the evidence supported the judge's finding of a statutory aggravating circumstance, and that there were no similar cases against which the proportionality of Shaw's sentence could be compared. State v. Shaw, 273 S.C. at 209-11, 255 S.E.2d at 806-07. The United States Supreme Court denied certiorari on November 13, 1979. Shaw v. South Carolina, 444 U.S. 957, 100 S.Ct. 437, 62 L.Ed.2d 329 (1979). The South Carolina Supreme Court, on November 21, 1979, directed that the sentence of death be executed. The execution was scheduled for December 14, 1979.

Shaw then commenced federal and state post-conviction proceedings, which we summarize here. Shaw filed in the district court a petition seeking a writ of habeas corpus and a motion for stay of execution on December 11, 1979, and a supplemental petition on December 12. The court held a hearing on December 12, and that day entered an order denying a stay. On December 13, 1979, a judge of this court granted Shaw a stay of execution. Shaw v. Martin, 613 F.2d 487 (4th Cir.1980). On December 13 Shaw also made an application for post-conviction relief in state court. That state court held extensive hearings from January 28, 1980 through February 6, 1980, and on February 7, 1980 denied relief. The South Carolina Supreme Court affirmed with formal opinion in Shaw v. State, 276 S.C. 190, 277 S.E.2d 140 (1981), and on April 24 set a new execution date of May 22, 1981. On the application of Shaw for a writ of mandamus directing the district court not to entertain application for modification or vacation of our previous stay entered December 13, 1979, this court granted the writ, reaffirmed the December 13, 1979 order of the single judge staying execution, and amended the stay to apply to the May 22 execution date and to any subsequent date pending further order of the court. In re Shaw, No. 81-1396 (4th Cir. May 15, 1981) (per curiam) (unpublished). ³

Shaw then refiled his habeas corpus petition in the district court. The district court denied Shaw's motion that the judge recuse himself, and Shaw's motions for leave to take depositions and for the appointment of experts. The court held a hearing on the state respondents' motion for summary judgment on December 8, 1982, and granted this motion, denying further evidentiary hearings. The court entered judgment for the state respondents on December 22, 1982, and Shaw appealed. We deal with Shaw's contentions on appeal in the order in which they are raised in his brief.

I. Bias and Prejudice of the District Judge

Shaw claims that the district judge should have recused himself because of prejudice and bias and that he thus denied Shaw a fair hearing. Alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). The nature of the bias must be personal rather than judicial. United States v. Carmichael, 726 F.2d 158, 160 (4th Cir.1984). On review, the question is whether the judge abused his discretion in denying a recusal motion. Id. And it is not an abuse of discretion if the complaint is merely based upon the judge's rulings in the instant case or related cases or attitude derived from his experience on the bench. Id. at 160-161.

Shaw moved that the district judge recuse himself under 28 U.S.C. Secs. 144, 455, based on exchanges between the judge and Shaw's newly retained counsel (retained counsel) during the December 12, 1979 hearing on Shaw's motion for a stay of execution, and based on the judge's opinion in that matter. The facts Shaw depends upon to show that the district judge should have disqualified himself simply do not support the broad generalizations he makes about them.

We have read the entire transcript of the hearing on the request for a stay in the district court, and are of opinion that Shaw's complaint of constant interruption of his attorneys by the judge is simply without factual foundation. Likewise, the district judge taking notice that Shaw's trial attorney was an outstanding member of the bar recognized as such by his court and by him as a judge is entirely lacking in merit as a fact outside the record or a related proceeding or his experience on the bench from which bias or prejudice should be inferred.

The district court transcript shows that retained counsel had only come into the case the day before the hearing, that trial counsel was still representing Shaw, that retained counsel was unable to point to any facts in the record or an affidavit to support Shaw's claim, and that retained counsel's argument seemed illogical to the judge. Retained counsel himself apologized to the judge for not having the opportunity to present the facts in a more compelling fashion, and assured the judge that he understood the court's "concern that there may be an appearance of trying to fool with the court, or deceive the court." Nothing here warrants turning the judge's reaction to retained counsel's perhaps necessarily limited...