Smith v. State of S.C., No. 89-6519

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore CHAPMAN and WILKINSON; SPENCER
Citation882 F.2d 895
PartiesAlton B. SMITH, Petitioner-Appellant, v. STATE OF SOUTH CAROLINA, Respondent-Appellee.
Decision Date21 August 1989
Docket NumberNo. 89-6519

Page 895

882 F.2d 895
Alton B. SMITH, Petitioner-Appellant,
v.
STATE OF SOUTH CAROLINA, Respondent-Appellee.
No. 89-6519.
United States Court of Appeals,
Fourth Circuit.
Argued June 9, 1989.
Decided Aug. 21, 1989.

Page 896

W. Gaston Fairey (J. Christopher Mills, Fairey and Parise, P.A., on brief), Columbia, S.C., for petitioner-appellant.

Donald J. Zelenka, Chief Deputy Atty. Gen. (T. Travis Medlock, Atty. Gen., Columbia, S.C., on brief), for respondent-appellee.

Before CHAPMAN and WILKINSON, Circuit Judges, and SPENCER, United States District Judge for the Eastern District of Virginia, sitting by designation.

SPENCER, District Judge:

Alton B. Smith appeals the the district court's denial of his petition for habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1986). We affirm the decision of the district court.

I.

An indictment brought at the February, 1983 term of the Court of General Sessions for Lexington County, South Carolina charged Smith with one count of criminal conspiracy and five counts of violating South Carolina's criminal sexual conduct statute, S.C.Code Ann. Secs. 16-3-651 to 16-3-659.1 (Law.Co-op.1985), 1 in both the first and second degree and as a principal as well as an accessory. The charges accused Smith and his girlfriend, co-defendant Miriam Shull, of forcing Shull's minor son, Gary O'Neal Shull, to participate in various sexual acts with his mother. The evidence at trial showed that there were over one hundred forced "sex sessions" between Gary and Miriam Shull in a four year period. On February 16, 1983, a jury found Smith guilty on all counts. The trial court sentenced Smith to consecutive terms of five years on the conspiracy count, thirty years for each of the two first degree counts, and twenty years for each of the three second degree counts.

On appeal to the South Carolina Supreme Court, Smith raised four issues: (1) whether the trial court improperly admitted irrelevant and prejudicial evidence; (2) whether the trial court improperly allowed the jury to view evidence which was later suppressed; (3) whether the trial court violated due process when it initially denied Smith's motion to suppress the evidence later excluded; (4) whether the trial court improperly denied Smith's request for a limiting jury instruction. However, Smith's counsel on appeal, William Diggs of the South Carolina Office of Appellate Defense, refused Smith's demand to argue that South Carolina's criminal sexual conduct statute was unconstitutionally vague. Smith wished to argue that he had no notice that the statute encompassed sexual conduct where there was no penetration of the victim's body. He argues that the South Carolina Supreme Court's subsequent interpretation of the statute to require penetration of the victim, State v. Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986), demonstrates the reasonableness

Page 897

of his belief that his conduct was not criminal.

The South Carolina Supreme Court affirmed Smith's conviction on June 1, 1984. The United States Supreme Court denied certiorari on October 1, 1984. Smith filed an application for post conviction relief pursuant to S.C.Code Ann. Sec. 17-27-10 et seq. (Law.Co-op.1985) on December 9, 1984. The application was dismissed on May 13, 1986. Smith appealed the dismissal to the South Carolina Supreme Court, but that court declined to hear Smith's appeal.

Smith then filed the present petition for writ of habeas corpus in federal court on December 11, 1987. The matter was referred to a United States magistrate William Catoe, who filed a report recommending dismissal of Smith's petition. By order entered December 16, 1988, the district court dismissed Smith's petition. The court found that Smith had failed to establish ineffective assistance of counsel. In addition, the court found that Smith had not shown sufficient cause for his failure to raise on direct appeal the claim that South Carolina's criminal sexual conduct statute is unconstitutionally vague and had not shown any prejudice resulting from that failure. This appeal followed.

II.

A petitioner in a federal habeas corpus action may not raise claims which have been defaulted under state procedural rules unless the petitioner can show cause for the default and prejudice resulting from the default. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). On direct appeal, Smith did not challenge South Carolina's criminal sexual conduct statute as unconstitutionally vague. Thus, under South Carolina law, he is barred from raising the claim in a post-conviction proceeding. See e.g., Peeler v. State, 277 S.C. 70, 71, 283 S.E.2d 826, 826 (1981).

Smith argues that defense counsel's refusal to raise "the central nonfrivolous issue petitioner sought to have adjudicated" over Smith's insistence constitutes cause under Wainwright. The thrust of Smith's argument is that the situation presented here has never been addressed by the Supreme Court. He points to the Court's statement in Jones v. Barnes, 463 U.S. 745, 754 n. 7, 103 S.Ct. 3308, 3314 n. 7, 77 L.Ed.2d 987 (1983) that "we have no occasion to decide whether counsel's refusal to raise requested claims would constitute 'cause' for a petitioner's default within the meaning of Wainwright v. Sykes." He also claims that at...

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85 practice notes
  • United States v. Bryant, Criminal Case No. 3:04cr00047-1
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • January 31, 2013
    ...in deciding not to appeal an issue. Griffin v. Aiken, 775 F.2d 1226, 1235 (4th Cir. 1985); see also Smith v. South Carolina, 882 F.2d 895, 897-99 (4th Cir. 1989). According to the Supreme Court, "[w]innowing out weaker arguments on appeal and focusing on those more likely to prevail, f......
  • Royal v. Netherland, Civil Action No. 3:96CV956.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • May 5, 1998
    ...on those more likely to prevail, far from incompetence, is the hallmark of effective appellate advocacy." Smith v. South Carolina, 882 F.2d 895, 899 (4th Cir.1989), cert. denied, 493 U.S. 1046, 110 S.Ct. 843, 107 L.Ed.2d 838 (1990) (quotations and citations Petitioner claims appellate ......
  • Goins v. Angelone, No. Civ.A. 97-1406-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • June 10, 1999
    ...The two-prong Strickland test applies to claims of ineffective assistance Page 666 of appellate counsel. See Smith v. South Carolina, 882 F.2d 895, 896 (4th Cir.1989). Thus, a petitioner must show both that counsel's performance fell below an objective standard of reasonableness and that th......
  • United States v. Tatum, Criminal No. DKC 13-0492-001
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 2, 2021
    ...issues for review." Jones v. Barnes, 463 U.S. 745, 752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); see also Smith v. South Carolina, 882 F.2d 895, 899 (4th Cir.1989). Indeed, "'[w]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evi......
  • Request a trial to view additional results
85 cases
  • United States v. Bryant, Criminal Case No. 3:04cr00047-1
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • January 31, 2013
    ...in deciding not to appeal an issue. Griffin v. Aiken, 775 F.2d 1226, 1235 (4th Cir. 1985); see also Smith v. South Carolina, 882 F.2d 895, 897-99 (4th Cir. 1989). According to the Supreme Court, "[w]innowing out weaker arguments on appeal and focusing on those more likely to prevail, f......
  • Royal v. Netherland, Civil Action No. 3:96CV956.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • May 5, 1998
    ...on those more likely to prevail, far from incompetence, is the hallmark of effective appellate advocacy." Smith v. South Carolina, 882 F.2d 895, 899 (4th Cir.1989), cert. denied, 493 U.S. 1046, 110 S.Ct. 843, 107 L.Ed.2d 838 (1990) (quotations and citations Petitioner claims appellate ......
  • Goins v. Angelone, No. Civ.A. 97-1406-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • June 10, 1999
    ...The two-prong Strickland test applies to claims of ineffective assistance Page 666 of appellate counsel. See Smith v. South Carolina, 882 F.2d 895, 896 (4th Cir.1989). Thus, a petitioner must show both that counsel's performance fell below an objective standard of reasonableness and that th......
  • United States v. Tatum, Criminal No. DKC 13-0492-001
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 2, 2021
    ...issues for review." Jones v. Barnes, 463 U.S. 745, 752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); see also Smith v. South Carolina, 882 F.2d 895, 899 (4th Cir.1989). Indeed, "'[w]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evi......
  • Request a trial to view additional results

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