Luther Ford v. Robert Stevenson, III

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:11-cv-00775-DCN Copies to all parties and the district court/agency. [999078800]. Mailed to: Katie A. Croghan, Rory A. Weeks,. [12-6172]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6172

LUTHER JAMES FORD,
Petitioner – Appellant,
v.
WARDEN ROBERT M. STEVENSON, III, Broad River Correctional
Institution,
Respondent – Appellee,
and
SOUTH CAROLINA, STATE OF,
Respondent.

Appeal from the United States District Court for the District of
South Carolina, at Aiken.
David C. Norton, District Judge.
(1:11-cv-00775-DCN)

Argued:

January 29, 2013

Before TRAXLER,
Judges.

Chief

Judge,

Decided:

and

GREGORY

and

April 3, 2013

SHEDD,

Circuit

Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Chief Judge Traxler and Judge Gregory joined.

ARGUED: Katie A. Croghan, UGA APPELLATE LITIGATION CLINIC,
Athens, Georgia, for Appellant. James Anthony Mabry, OFFICE OF
THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South

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Carolina, for Appellee.
ON BRIEF: Peter B. Rutledge, Rory A.
Weeks, UGA APPELLATE LITIGATION CLINIC, Athens, Georgia, for
Appellant.
Alan Wilson, Attorney General, John W. McIntosh,
Deputy Attorney General, Donald J. Zelenka, Senior Assistant
Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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SHEDD, Circuit Judge:
Luther James Ford appeals the dismissal of his 28 U.S.C.
§ 2254

petition,

contending

that

his

attorney

was

constitutionally ineffective in advising him to plead guilty to
voluntary manslaughter.

We agree with the district court that

Ford’s claim is without merit and, accordingly, affirm.
I.
On November 26, 2006, Luther James Ford spent the day with
his

girlfriend,

Patricia

Thompson,

eventually

returning

that

evening to Thompson’s home in Bennettsville, South Carolina. 1
Both had been consuming alcohol that day and, at some point,
began arguing.

Ford retrieved a knife and stabbed Thompson 39

times, killing her.

Ford then rode a bicycle to a nearby house

where

individuals

he

“thought

told
he

two

had

killed

her.”

that

he

(J.A.

“killed”
47).

Thompson
Thompson

or
was

discovered by police sprawled on her bed with her arms in a
defensive posture.
Ford

was

arrested

indicted for murder.

the

following

day

and

subsequently

The State then served Ford with notice

that it was seeking a sentence of life without parole (LWOP)
because he had a 1979 conviction for voluntary manslaughter.
1

Ford and Thompson had previously lived together, but
Thompson had moved out several months earlier because Ford had
cut her face.

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Under South Carolina’s “Two Strikes/Three Strikes” statute, a
conviction

for

voluntary

serious offense.”
require

a

manslaughter

is

considered

a

“most

Two convictions for a “most serious offense”

sentence

of

LWOP.

S.C.

Code

Ann.

§

17-25-45(A).

Prior to trial, the State offered to let Ford plead guilty to
voluntary manslaughter and receive a mandatory LWOP.
Ultimately,

Ford

pled

guilty

to

voluntary

manslaughter.

During the plea colloquy, Ford admitted that he killed Thompson
and did not dispute the State’s summary of the killing.

The

trial judge noted that a competency exam found Ford competent to
stand trial and explained the mandatory LWOP sentence he was
facing

if

he

pled

guilty.

During

the

plea

hearing,

following exchange took place:
THE COURT: Are you entering this plea of your own free
will and accord?
MR. FORD: In a way.
THE COURT: All right. If you don’t mind explain that
to me. Is anybody forcing you to do this?
MR. FORD: No, sir.
THE COURT: Okay, anybody intimidating you or anybody
promised you anything?
MR. FORD: No, sir.
THE COURT: If it’s any problem, now, tell me about it
now.
MR. FORD: No, no problem.
(J.A. 45).

4

the

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Thereafter,

the

trial

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judge

voluntary and accepted it.

found

that

Ford’s

plea

was

Ford, through his counsel, Daniel

Blake, apologized to Thompson’s family.

Blake also informed the

trial judge that he had investigated the case thoroughly and
explained how they reached the decision to plead guilty:
Luther and I had had numerous discussions during [the
18 months Ford had been imprisoned prior to the plea].
Always the question was whether or not to go to trial
understanding that the end result of loosing [sic] a
trial would be the same as it would be today. . . .
And
I
believe,
really,
because
of
the
prior
convictions, it’s a mandatory sentence.
(J.A. 48-49).

The trial judge then imposed the LWOP sentence.

Thereafter,

Ford

filed

a

pro

se

application

for

post-

conviction relief (PCR) in the Marlboro County Circuit Court.
Relevant here, Ford claimed that his counsel was ineffective
because he failed to inform Ford that, had Ford gone to trial,
he could have requested and possibly received an instruction for
the

lesser

included

offenses

of

voluntary

and

involuntary

manslaughter (the involuntary manslaughter claim).

A conviction

for

carried

involuntary

mandatory

LWOP

manslaughter
sentence

would

under

South

not

have

Carolina’s

the

recidivist

statute.
The

PCR

application.

Court

held

an

evidentiary

hearing

on

Ford’s

During the hearing, Ford testified that his guilty

plea was not knowing and voluntary because he “didn’t understand
that” he was in court to plead guilty and thought he was in
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court that day for his trial.

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(J.A. 68).

Ford testified that

he “understood” some of the plea process, that “he say I could
have went to trial and got a lesser sentence.”

(J.A. 66).

Ford

testified that, on the day he pled guilty, Blake “took me back
in the room and he shut the door,” and told Ford to “sign” a
“paper.”

(J.A. 65).

Ford testified that he did not know he was

signing a guilty plea.

On cross-examination, Ford testified

that he “kept telling [Blake] I wanted a trial.

He kept telling

me that he didn’t think I could stand a trial.”

(J.A. 69).

Ford reiterated that he did not know he was in court to plead
guilty and that, when he figured that out, “I tried to say
something and my voice went away.”
Contrary

to

Ford’s

(J.A. 70).

testimony,

Blake

testified

that

he

talked “extensively” with Ford from November 2006 through April
2008 when Ford pled guilty.

(J.A. 72).

Blake stated that Ford

decided to plead guilty because “he was literally embarrassed.
He didn’t want to go to trial due to his embarrassment.”
72).

(J.A.

Blake recounted that at one point Ford said he just wanted

the death penalty, and that he vacillated between whether to
plead and just be done with the process or to fight at trial.
Blake said that Ford knew that a conviction would carry at least
LWOP and that the State’s case was strong because Ford had told
one witness that he had killed Thompson and told another witness
that he thought he had killed her.
6

Blake also testified that he

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spoke with family members about the decision to plead guilty and
that Ford knew that he was in court to plead guilty and that the
decision had been made “in the weeks and months before.”
74).

(J.A.

Blake further testified that Ford had been found competent

to stand trial and fully understood how strong the State’s case
against him was.

In Blake’s view, “I don’t see how we could

have won the case.”

(J.A. 77).

Although Ford’s PCR application

accused Blake of ineffective assistance for failing to inform
him

of

the

possibility

of

an

involuntary

manslaughter

instruction at trial, neither Ford nor Blake was questioned or
provided testimony on this point.
The PCR Court denied Ford’s application.
found

Ford’s

testimony

testimony “credible.”

“not

credible,”

(J.A. 85).

and

The PCR Court
found

Blake’s

The PCR Court likewise found

Blake “conducted a proper investigation,” “adequately conferred”
with Ford, and was “thoroughly competent.”

(J.A. 85).

The PCR

Court found that Ford’s plea was knowing and voluntary and that
Ford knew he would receive an LWOP sentence if he pled guilty.
The PCR Court found that Blake informed Ford of the consequences
of

a

plea

and

“specifically

finds

credible

plea

testimony that they had discussed this very issue.”
The

PCR

order

does

not

specifically

counsel’s

(J.A. 86).
discuss

the

availability of the involuntary manslaughter instruction if Ford
had gone to trial.

However, the order does provide that “any
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and all allegations that were raised in the application or at
the hearing . . . and not specifically addressed in this Order,”
were “waived” and Ford “failed to meet his burden of proof” on
those

allegations

supporting them. 2

because

Ford

(J.A. 87).

failed

to

present

evidence

Ford appealed the PCR Court’s

denial of his application to the South Carolina Supreme Court,
raising the involuntary manslaughter claim.

The South Carolina

Supreme Court denied certiorari on all of Ford’s claims.
Ford next filed a pro se petition for habeas corpus under
28 U.S.C. § 2254 in the District of South Carolina.
petition

raised

manslaughter claim.

four

claims,

including

the

Ford’s

involuntary

After the State moved for summary judgment,

the petition was referred to a magistrate judge, who issued a
Report

and

Recommendation,

recommending

the

grant

of

summary

judgment to the State.

The magistrate judge concluded that Ford

was

barred

not

procedurally

from

2

bringing

the

involuntary

Contrary to Ford’s argument, this resolution clearly
counts as an “adjudication on the merits in State court” of
Ford’s claim under 28 U.S.C. § 2254(d).
See Johnson v.
Williams, -- S.Ct. --, 2013 WL 610199, *7 (2013) (noting
presumption that “the federal claim was adjudicated on the
merits” when the claim is “reject[ed]” without being expressly
addressed); Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011)
(“When a federal claim has been presented to a state court and
the state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the absence
of any indication or state-law procedural principles to the
contrary.”).

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manslaughter
because

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claim,

but

that

the

would

not

have

been

Ford

manslaughter

charge

under

South

claim

failed

entitled

Carolina

to

on

the

an

involuntary

law.

The

merits

district

court, conducting a de novo review, adopted the Report.
court

granted

Ford

a

certificate

of

appealability

This

on

the

involuntary manslaughter claim, and we now affirm.
II.
“We review de novo the district court’s decision to deny
[Ford’s] § 2254 petition based on the record before the [state
court], applying the same standards as did the district court.”
Golphin

v.

Branker,

519

F.3d

168,

178

(4th

Cir.

2008).

“Pursuant to the Antiterrorism and Effective Death Penalty Act
of

1996

(‘AEDPA’),

the

scope

of

our

review

in

cases

on

collateral review from a state court proceeding that adjudicated
a

claim

on

the

merits

is

both

deferential

and

highly

constrained.”

Id.

That is, under § 2254, federal habeas relief

may not be granted unless a petitioner shows that the earlier
state

court’s

decision

“was

contrary

to”

clearly

established

federal law, § 2254(d)(1); or that it “involved an unreasonable
application of” such law, § 2254(d)(1); or that it “was based on
an

unreasonable

determination

of

the

facts”

record before the state court, § 2254(d)(2).

in

light

of

the

In cases alleging

ineffective assistance of counsel, the Supreme Court recently
reminded lower courts that, even without § 2254’s deference, the
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Strickland v. Washington, 466 U.S. 668 (1984), standard “is a
most deferential one.”
788 (2011).

Harrington v. Richter, 131 S.Ct. 770,

Moreover, “[w]hen combined with the extra layer of

deference that § 2254 provides, the result is double deference
and

the

argument

question
that

standard.’”
Cir.

becomes

counsel

whether

‘there

satisfied

is

any

Strickland’s

reasonable
deferential

Johnson v. Sec’y, DOC, 643 F.3d 907, 910-11 (11th

2011)

Indisputably,

(quoting

Harrington,

“[d]ouble

deference

is

131

S.Ct.

doubly

at

difficult

788).
for

a

petitioner to overcome, and it will be a rare case in which an
ineffective assistance of counsel claim that was denied on the
merits in state court is found to merit relief in a federal
habeas proceeding.”
On

appeal,

Id. at 911.

Ford

argues

that

Blake

was

ineffective

for

failing to advise him that, had Ford gone to trial, he was
“likely

entitled”

to

(Appellant’s Br. at 26).

an

involuntary

manslaughter

charge.

“To prevail on a claim of ineffective

assistance of counsel, a petitioner ordinarily must satisfy both
parts of the two-part [Strickland] test,” Richardson v. Branker,
668 F.3d 128, 139 (4th Cir. 2012), by showing that “counsel’s
representation

fell

below

an

objective

standard

of

reasonableness,” Strickland, 466 U.S. at 688, and that “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,”
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Strickland, 466 U.S. at 694.

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If Ford fails to make this showing

on either prong, our inquiry ends.

Strickland, 466 U.S. at 697

(noting “there is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry
if the defendant makes an insufficient showing on one”).
In

South

killing

of

Carolina,

another

“[i]nvoluntary

without

malice

and

manslaughter

is

unintentionally

the
while

engaged in either: (1) an unlawful act not amounting to a felony
and not naturally tending to cause death or great bodily harm;
or (2) a lawful act with reckless disregard for the safety of
others.”
is

“a

State v. Reese, 633 S.E.2d 898, 900 (S.C. 2006).

lesser

included

offense

of

murder

evidence the killing was unintentional.”
S.E.2d

410,

412

(S.C.

2008).

“If

only

if

there

It
is

Tisdale v. State, 662
there

is

any

evidence

warranting a charge on involuntary manslaughter, then the charge
must be given.”
Ford

Reese, 633 S.E.2d at 900.

contends

that

there

is

evidence

in

the

record

supporting his claim that Thompson’s death was unintentional and
was

the

result

of

engaging

in

a

disregard for the safety of others.

lawful

act

with

reckless

He relies primarily on

three cases—State v. Light, 664 S.E.2d 465 (S.C. 2008), State v.
Crosby, 584 S.E.2d 110 (S.C. 2003), and State v. Burriss, 513
S.E.2d 104 (S.C. 1999).

In each case, the defendant shot and

killed

handgun.

someone

with

a

11

Moreover,

each

defendant

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testified that he did not mean to shoot the gun—either because
it went off during a struggle (Light), while the defendant was
getting up off the ground (Burriss), or accidentally while the
defendant’s eyes were closed (Crosby).

Analogizing to these

cases, Ford argues that there is no evidence he intentionally
wielded the knife, and that in his habeas petition he alleges
that

Thompson

drew

the

knife

on

him.

Ford

also

points

to

evidence that he told one witness that he was not sure if he had
killed Thompson and that he and Thompson had been drinking on
the day of the murder.
Even assuming this “evidence” was properly before the PCR
court, 3 Ford was not prejudiced by Blake’s alleged failure to
inform Ford that he could pursue an involuntary manslaughter
charge at trial because he was not entitled to an involuntary
manslaughter charge.

First, none of this evidence suggests that

Thompson’s death was accidental or unintentional.

Instead, the

record evidence indicates that Ford was drinking on the day of
the

murder

Thompson.

and

that

he

spoke

to

two

people

after

killing

In addition, when Thompson’s body was discovered, her

hands were raised in a defensive posture.

In South Carolina,

“voluntary intoxication . . . is never an excuse for or defense
3

Ford’s suggestion that Thompson held the knife first does
not appear in his state court filings and was not introduced
during the PCR hearing.

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to crime,”
and,

in

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State v. Vaughn, 232 S.E.2d 328, 330 (S.C. 1977),

cases

of

murder,

“[v]oluntary

intoxication

does

not

impair a person’s ability to act with malice aforethought so as
to reduce murder to voluntary manslaughter.”
298 S.E.2d 778 (S.C. 1983).
not

evidence

supporting

a

State v. Davis,

Thus, Ford’s voluntary drinking is
voluntary

manslaughter

alone a charge of involuntary manslaughter.

charge,

yet

Regarding Ford’s

confessions, he told one witness that he had killed Thompson and
another that he “thought” he had killed her.

Neither statement

suggests that Thompson’s death was accidental.

In addition to

this record evidence, in his habeas petition Ford suggests that
Thompson had the knife first.

This “evidence” again does not

suggest that Ford accidentally stabbed Thompson.
Moreover, missing from Ford’s “evidence” is any assertion
that, at the time Ford entered his guilty plea, he had told
Blake

that

the

stabbing

was

unintentional

or

accidental,

or

provided Blake with any information that would have suggested
Thompson’s

death

was

involuntary

manslaughter.

At

the

PCR

hearing, Blake testified only that Ford told Blake, after Ford’s
memory returned, that he remembered stabbing Thompson.

This

admission, coupled with Ford’s confession to two witnesses and

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the physical evidence do not suggest the crime of involuntary
manslaughter. 4
Second, Ford’s argument is legally unsound.

In each case

Ford relies upon, a single gunshot was fired during a struggle
or altercation, raising at least a plausible inference that the
firearm was not intentionally wielded.

In contrast, the South

Carolina Supreme Court has held that involuntary manslaughter
charges

are

intentionally

not

available

wielded

something else.

a

in
but

weapon

cases
claimed

where
to

defendants

be

aiming

at

See State v. Cooney, 463 S.E.2d 597, 600 (S.C.

1995) (no involuntary manslaughter charge “when the defendant
admitted intentionally firing the gun, but claimed he only meant
to shoot over the victim’s head”); Harris v. State, 581 S.E.2d
154, 156 (S.C. 2003) (no error in failing to charge involuntary
manslaughter where defendant claimed he was only firing warning
shots);

Douglas

v.

State,

504

S.E.2d.

307,

310

(S.C.

1998)

(same); State v. Smith, 446 S.E.2d 411, 412-13 (S.C. 1994) (no
error

in

failing

to

charge

involuntary

manslaughter

when

defendant was intentionally wielding a knife but did not mean to
harm the victim).

In addition, the “any evidence” standard Ford

cites does not require a charge on a lesser-included offense

4

In fact, there is no evidence that Ford has ever asserted
to anyone that Thompson’s death was unintentional or accidental.

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unless

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the

“evidence

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presented”

would

“allow

a

rational

inference the defendant was guilty only of the lesser offense.”
State v. Geiger, 635 S.E.2d 669, 673 (S.C. Ct. App. 2006).

See

also State v. Gilmore, 719 S.E.2d 688, 693 (S.C. Ct. App. 2011)
(noting when the evidence supporting the lesser-included offense
is circumstantial, an instruction is warranted if the evidence
would

“permit

a

reasonable

inference

guilty only of the lesser crime”).
refuse

to

submit

a

lesser

included

that

the

defendant

is

Thus, “it is not error to
offense

unless

there

is

testimony tending to show that the defendant is only guilty of
the lesser offense.”

State v. Funchess, 229 S.E.2d 331, 332

(S.C. 1976) (emphasis in original); Suber v. State, 640 S.E.2d
884, 886-87 (S.C. 2007) (finding evidence was “insufficient” to
support claim that defendant was guilty only of lesser included
offense because evidence suggested only that defendant may have
been not guilty of the greater offense).
In this case, even taking Ford’s “evidence” at face value,
he

stabbed

Thompson

39

times.

The

line

of

cases

for

“accidental” or “unintentional” discharge of a firearm do not
suggest

that

an

involuntary

manslaughter

required in such circumstances.

charge

would

be

Instead, it seems clear as a

matter of law that, when a defendant stabs a victim 39 times,
the wielding of the knife was intentional.

Put another way,

stabbing someone 39 times, without more, precludes the “rational
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inference” that the knife was unintentionally wielded.

Indeed,

we have been unable to find any case in which a victim was
stabbed

more

than

one

charge was required.

time

and

an

involuntary

manslaughter

See, e.g., Commonwealth v. Burgess, 879

N.E.2d 63, 78-79 (Mass. 2008) (no error in failing to instruct
on

involuntary

manslaughter

where

victim

had

two

deep

stab

wounds); State v. Mason, 272 S.W.3d 257, 260-62 (Mo. Ct. App.
2008) (four stab wounds); State v. Carey, 558 S.E.2d 650, 662
(W.Va. 2001) (“There is simply no credible argument that a death
which

results

from

the

brutal

wounds . . . is accidental”);
349-50

(Ohio

1994)

delivery

of

three

fatal

stab

Ohio v. Campbell, 630 N.E.2d 339,

(upholding

trial

court’s

refusal

to

give

involuntary manslaughter instruction when evidence showed four
separate stab wounds in vital areas).
Because Ford would not have been entitled to an involuntary
manslaughter charge had he gone to trial, the PCR court did not
unreasonably

apply

Strickland

in

denying

Ford’s

petition.

Savino v. Murray, 82 F.3d 593, 599 (4th Cir. 1996) (“However, if
there exists no reasonable probability that a possible defense
would have succeeded at trial, the alleged error of failing to
disclose or pursue it cannot be prejudicial.”).

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III.
For the foregoing reasons, the district court’s denial of
Ford’s § 2254 petition is affirmed.
AFFIRMED

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