Wilson v. Ozmint, No. 03-3.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation357 F.3d 461
Docket NumberNo. 03-3.
PartiesJames W. WILSON, Petitioner-Appellee, v. Jon E. OZMINT, Director, South Carolina Department of Corrections; (CA-02-2030-0-10BD) Henry Dargan McMaster, Attorney General, State of South Carolina, Respondents-Appellants.
Decision Date17 February 2004

Page 461

357 F.3d 461
James W. WILSON, Petitioner-Appellee,
v.
Jon E. OZMINT, Director, South Carolina Department of Corrections; (CA-02-2030-0-10BD) Henry Dargan McMaster, Attorney General, State of South Carolina, Respondents-Appellants.
No. 03-3.
United States Court of Appeals, Fourth Circuit.
Filed: February 17, 2004.

Page 462

COPYRIGHT MATERIAL OMITTED

Page 463

Before WILKINS, Chief Judge, and WIDENER and LUTTIG, Circuit Judges.

ORDER

Before the court is a motion by appellee Wilson for leave to file a petition for rehearing and a suggestion for rehearing en banc out of time, together with a proposed petition and suggestion. The court hereby denies the motion and dismisses as untimely the petition and suggestion.

For the reasons, and in the manner, set forth below, however, Part VI of our opinion of December 17, 2003 is hereby amended.

In our earlier panel opinion, we held that Wilson was precluded from raising in federal court either of his claims related to a report prepared by the Quality Care Review Board (QCRB), because he was either procedurally barred from raising, or failed to exhaust, those claims in state court. See 352 F.3d at 867. In his submitted petition for rehearing, Wilson argues that this holding was in error because the South Carolina Supreme Court's order, which granted his motion to defer, authorized him to pursue both claims in post-conviction relief.1 Wilson only obliquely referenced this argument in a single sentence of his merits brief to this court,2 and made no mention of it whatsoever at oral argument.

Notwithstanding Wilson's failure to provide any support for the bare assertion in his brief that it was error for the state courts to hold that his QCRB claims were procedurally defaulted, we considered and dismissed the argument on the ground that Wilson's motion to defer consideration (and the state Supreme Court's grant of that motion) only allowed him to raise these claims at a later date before the state Supreme Court, and did not authorize him to raise them subsequently in post-conviction relief proceedings. In so holding, we accepted, without any argument from Wilson to the contrary, the state PCR court's conclusion that the state Supreme Court's order "merely authorized that Court, not [the state PCR court], in an appeal from the state PCR action, if any to consider the matter de novo." 352 F.3d at 867 (quoting J.A. 587).

In his petition for rehearing, Wilson now expansively advances the argument that the state PCR court erred in its procedural default rulings, and he grounds this argument on the specific language of the

Page 464

request that he made to the South Carolina Supreme Court in his motion to defer consideration, for the first time on this appeal providing citation to and quotations from this motion. (The contents of this motion were mentioned in neither the opinion of the district court nor the state post-conviction relief court.). As Wilson's petition now reveals, this motion asked the state Supreme Court, not merely, as our panel opinion stated, "to review the reports with experts and to take additional testimony," 352 F.3d at 866, but also to "defer consideration of the issues raised by appellant's fourth exception ... to such collateral proceedings as may later be held... pursuant to the Post-Conviction Procedures Act, S.C.Code § 17-27-10." J.A. 3837.

Despite Wilson's failure to develop this argument or even to direct the court to the source on which this argument depends, we amend our opinion to reflect the actual requests made in Wilson's motion to defer consideration of his claims related to the QCRB report and, as discussed below, the somewhat different conclusions that we now reach on the question of whether Wilson's procedural default in state court bars our review of his federal claims here. We are willing to do so in this circumstance because the requests made by Wilson in his motion to the state supreme court, not brought to the court's attention until after it issued its opinion in this case, render the panel opinion's analysis of these claims unresponsive to the unique circumstances surrounding the state post-conviction relief court's determination that Wilson had procedurally defaulted these claims. The mandate of the court has not yet issued in this case, and, therefore, we may, at our discretion, "amend what we previously decided to make it conform," to the facts of the case, see Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir.1977), without need of finding that the case presents the sort of "grave, unforeseen contingencies," which would be necessary to recall a mandate that had already issued, see Calderon v. Thompson, 523 U.S. 538, 550, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998).

After consideration of the cited motion and presented arguments, we conclude that Wilson was not barred from raising these claims in federal court for the reasons that we stated in our panel opinion. We find, however, that Wilson is barred from challenging the trial court's in camera review of the QCRB report in federal court because he defaulted that claim in state court due to his counsel's invitation of such review. We also hold that the state PCR court's decision, affirming the trial court's order quashing Wilson's subpoena of the QCRB report, was both not "objectively unreasonable" under 28 U.S.C. § 2254(d)(1) and harmless under the standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Therefore, we affirm our previous judgment, vacating the district court's grant of the writ of habeas corpus, but order that Part VI of our panel opinion is amended so as to substitute the reasoning and conclusions below for the reasoning and conclusions that appear in Part VI of our panel opinion:

The Quality Care Review Board conducted an investigation into the adequacy of Wilson's treatment in the state mental health system in South Carolina, following Wilson's shooting spree at Oakwood Elementary School. The investigation culminated in a report (the "QCRB report"), detailing Wilson's history in the state mental health system and tending to absolve the state of responsibility for Wilson's acts. Wilson subpoenaed the report from the Department of Mental Health in April 1989. The department moved to quash the subpoena and, at the suggestion of Wilson's counsel, proposed that the state

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trial court review the report in camera to determine the relevancy of the documents. J.A. 944. Wilson's counsel, Belser, told the court that he had no problems with this procedure, J.A. 948, and, in fact, informed the court that it would be reviewing the report in camera "at our request." J.A. 944. After reviewing the report, the state trial court found that it was not relevant to Wilson's proceedings and quashed the subpoena. J.A. 960.

In his appeal to the South Carolina Supreme Court, Wilson initially listed the trial court's denial of access to the report as Exception 4 in his appeal, but, after the court gave Wilson access to the report, he entered a motion for the court to "defer consideration of the issues raised by appellant's fourth exception ... to such collateral proceedings as may later be held ... pursuant to the Post-Conviction Procedures Act, S.C.Code § 17-27-10." J.A. 3837. The South Carolina Supreme Court granted the motion, without explanation, on May 10, 1990, and, in its opinion addressing Wilson's remaining claims, it did not mention those related to the QCRB report. See generally, State v. Wilson, 306 S.C. 498, 413 S.E.2d 19 (1992).

Wilson next attempted to raise his claims related to the QCRB report before the state PCR court. The state PCR court rejected both claims on procedural and substantive grounds. On procedural grounds, it held that neither of Wilson's claims could be raised before a post-conviction relief court, because, under South Carolina law, claims that could have been raised before a trial court or on direct appeal may not be raised in post-conviction relief proceedings. J.A. 586; see Drayton v. Evatt, 312 S.C. 4, 430 S.E.2d 517, 519 (1993) ("[E]rrors which can be reviewed on direct appeal may not be asserted for the first time, or reasserted, in post-conviction proceedings."). The state PCR court reasoned that the state Supreme Court's order granting Wilson's motion to defer did not alter the limited jurisdiction of a post-conviction relief court under S.C.Code § 17-27-10. It explained, "[t]he claim, as deferred by the South Carolina Supreme Court, is one solely within the appellate jurisdiction of the Supreme Court of South Carolina because a trial court judge — at the time of the original action — has already ruled on the matter." J.A. 588.

The state PCR court also held, in the alternative, that Wilson could not challenge the trial court's review of the QCRB report in camera, either on direct appeal or in a PCR hearing, because Wilson's counsel invited the trial court's action. J.A. 596-97.

The state court also rejected both of Wilson's claims on substantive...

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10 practice notes
  • Bauberger v. Haynes, No. 09–8111.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 11, 2011
    ...519 F.3d at 190–92 (overwhelming evidence rendered any error from admitting a confession harmless under Brecht ); Wilson v. Ozmint, 357 F.3d 461, 469 (4th Cir.2004) (sentencing record rendered any error from not admitting one mitigating statement harmless under Brecht ). The error we assume......
  • Woodfolk v. Maynard, No. 15-6364
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 23, 2017
    ...exorbitant exercise of the state court's discretion. See Hedrick , 443 F.3d at 362 (discussing exorbitant application); Wilson v. Ozmint , 357 F.3d 461, 466 (4th Cir. 2004) (same). We therefore conclude the Court of Special Appeals' application of § 7-106(b)(1)(i)(6) is inadequate to bar fe......
  • Hill v. Wetzel, CIVIL ACTION No. 12–2185
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 10, 2016
    ...complied" with procedural rule); Evans v. Sec'y Pa. Dep't of Corr. , 645 F.3d 650, 657 (3d Cir. 2011) (similar); Wilson v. Ozmint , 357 F.3d 461, 466 (4th Cir. 2004) (default improper where petitioner "only failed to make his claim ... after he received what he reasonably believed to be the......
  • Hedrick v. True, No. 04-32.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 31, 2006
    ...perfect compliance would not have changed the state court's decision. Kemna, 534 U.S. at 387, 122 S.Ct. 877. See also Wilson v. Ozmint, 357 F.3d 461, 466 (4th Cir.2004) (applying Kemna). In Kemna, the defendant had orally sought a continuance during trial because his witnesses had disappear......
  • Request a trial to view additional results
10 cases
  • Bauberger v. Haynes, No. 09–8111.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 11, 2011
    ...519 F.3d at 190–92 (overwhelming evidence rendered any error from admitting a confession harmless under Brecht ); Wilson v. Ozmint, 357 F.3d 461, 469 (4th Cir.2004) (sentencing record rendered any error from not admitting one mitigating statement harmless under Brecht ). The error we assume......
  • Woodfolk v. Maynard, No. 15-6364
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 23, 2017
    ...exorbitant exercise of the state court's discretion. See Hedrick , 443 F.3d at 362 (discussing exorbitant application); Wilson v. Ozmint , 357 F.3d 461, 466 (4th Cir. 2004) (same). We therefore conclude the Court of Special Appeals' application of § 7-106(b)(1)(i)(6) is inadequate to bar fe......
  • Hill v. Wetzel, CIVIL ACTION No. 12–2185
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 10, 2016
    ...complied" with procedural rule); Evans v. Sec'y Pa. Dep't of Corr. , 645 F.3d 650, 657 (3d Cir. 2011) (similar); Wilson v. Ozmint , 357 F.3d 461, 466 (4th Cir. 2004) (default improper where petitioner "only failed to make his claim ... after he received what he reasonably believed to be the......
  • Hedrick v. True, No. 04-32.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 31, 2006
    ...perfect compliance would not have changed the state court's decision. Kemna, 534 U.S. at 387, 122 S.Ct. 877. See also Wilson v. Ozmint, 357 F.3d 461, 466 (4th Cir.2004) (applying Kemna). In Kemna, the defendant had orally sought a continuance during trial because his witnesses had disappear......
  • Request a trial to view additional results

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