Smith v. State of S.C.

• Decision Date: 21 August 1989
• Docket Number: No. 89-6519,89-6519
• Citation: 882 F.2d 895
• Parties: Alton B. SMITH, Petitioner-Appellant, v. STATE OF SOUTH CAROLINA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

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.

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 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 least one Justice agrees that an attorney's refusal to raise a claim, over his client's insistence, must constitute cause and prejudice. Barnes, 463 U.S. at 755, 103 S.Ct. at 3314 (Blackmun, J. concurring).

The Supreme Court addressed the question of attorney error in a very similar case decided three years after Barnes. In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the respondent was convicted in Virginia state court. In his notice of appeal to the Virginia Supreme Court, he included a claim that the trial court erred by refusing to allow him to examine the victim's statements prior to trial. However, his counsel failed to include that particular claim in the required petition for appeal. Pursuant to its rules, the Virginia Supreme Court refused to hear the claim, either on direct appeal or in a later state habeas corpus action. Id. at 482, 106 S.Ct. at 2642.

The Supreme Court held that Carrier had failed to show cause for the procedural default. "Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial." Carrier, 477 U.S. at 492, 106 S.Ct. at 2647. "So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under [Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default." Carrier, 477 U.S. at 488, 106 S.Ct. at 2645.

Carrier is based on policy considerations of comity, finality, and efficiency. Those considerations apply as strongly when a defendant insists on raising a particular claim and his attorney refuses as they do when an attorney inadvertently fails to raise a particular claim. Whether as a result of attorney refusal or attorney error, the failure to raise a claim deprives the state court of an opportunity to review its errors and undercuts the state's ability to enforce its procedural rules. Further, consideration of new claims on collateral review reduces the finality of state convictions. Carrier, 477 U.S. at 491, 106 S.Ct. at 2647.

Similarly, just as in Carrier, permitting a petitioner to bring this type of claim on collateral review presents the distinct possibility that defense counsel might "sandbag" in order to avoid the state appellate courts. Allowing defense counsel to bypass the state appellate system simply by refusing to bring a claim encourages counsel to manufacture refusals in order to obtain de novo review in federal court should the state appeal be unsuccessful. See Carrier, 477 U.S. at 492, 106 S.Ct. at 2647.

In addition, accepting Smith's position would increase the burden on district courts of federal habeas corpus. First, the absence of any state court appellate review forces district courts to review claims on an incomplete record. An important benefit of state appellate review is that it fully develops the factual and legal issues of a case very soon after the initial trial. Federal habeas corpus review, on the other hand, can occur years later, when those issues have become...