Santiago Rios v. Warden
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 5:15-cv-01705-TMC Copies to all parties and the district court/agency. . [16-6389]
Pg: 1 of 12
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioner - Appellant,
WARDEN, Perry Corr Inst,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at
Orangeburg. Timothy M. Cain, District Judge. (5:15-cv-01705-TMC)
Argued: September 12, 2017
Decided: October 20, 2017
Before THACKER and HARRIS, Circuit Judges, and Norman K. MOON, Senior United
States District Judge for the Western District of Virginia, sitting by designation.
Affirmed by unpublished opinion.
Thacker and Judge Moon joined.
Judge Harris wrote the opinion, in which Judge
ARGUED: Stephen K. Wirth, ARNOLD & PORTER KAYE SCHOLER LLP,
Washington, D.C., for Appellant. Caroline M. Scrantom, OFFICE OF
ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for
Appellee. ON BRIEF: Alan Wilson, Attorney General, Donald J. Zelenka, 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Unpublished opinions are not binding precedent in this circuit.
Pg: 2 of 12
PAMELA HARRIS, Circuit Judge:
A jury convicted Santiago Rios of murdering his wife, Eliza Hernandez, on
Thanksgiving night in 2006. Now serving a 30-year prison sentence in South Carolina,
Rios appeals from a district court order denying his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. Rios’s claim is that his trial counsel provided ineffective
assistance by abandoning a request for a jury instruction on self-defense. South
Carolina’s post-conviction relief court rejected that claim under Strickland v.
Washington, 466 U.S. 668 (1984), holding that Rios was not prejudiced by counsel’s
actions because a self-defense instruction was not reasonably likely to result in a different
outcome at trial. The district court also denied relief, and for the reasons below, we
At Rios’s 2008 trial for the murder of his wife, the prosecution focused the jury’s
attention on two starkly different accounts of how Hernandez died – both given by Rios.
When first questioned on the night of the killing, Rios told the police that he and
Hernandez were watching television when three masked intruders forced their way into
the house, attacked him, and shot his wife. But Rios changed course in a second
statement later that night, describing an altercation between himself and his wife – in
Pg: 3 of 12
which he was the first physical aggressor – that culminated in a struggle over a gun and
an accidental shooting.1
According to this second version of events, the physical altercation started when
Rios shoved his wife after she refused to serve him Thanksgiving dinner and instead
insisted that he finish his uneaten lunch. See State v. Rios, 696 S.E.2d 608, 609 (S.C. Ct.
App. 2010); J.A. 436 (“[Hernandez] said I’m, I’m going to eat my old lunch. I shoved
her and she pushed, and she pulled my hair and also pulled my medallion.”). Then,
according to Rios, he followed Hernandez into the couple’s bedroom, where Hernandez
hit him, threatened to leave him, and finally pointed a gun at him. The two struggled
with the gun, Hernandez with her finger on the trigger, and “a shot was fired.” J.A. 437.
Rios claimed that he was “defending [him]self” during the struggle and when the gun was
fired. Id. (adding, “[i]t was in self-defense”). No gun was found at the scene or ever
At the close of evidence and during the charge conference, Rios’s counsel
requested that the jury be instructed not only on accident but also on self-defense,
pointing to Rios’s references to “defending [him]self” and “self-defense” in his second
statement. The state opposed a self-defense instruction, arguing that Rios’s “colloquial”
use of the phrase was not enough to establish the elements of self-defense. J.A. 626.
And because Rios had not admitted to killing Hernandez, the state maintained, he could
Rios did not testify at trial, but the government introduced both his statements
Pg: 4 of 12
not satisfy the legal definition of self-defense and was not entitled to an instruction. The
court, for its part, expressed skepticism about a self-defense instruction on an additional
ground: Under South Carolina law, a defendant is not entitled to a self-defense
instruction unless there is evidence that shows he is without fault in bringing about an
altercation, and Rios’s own statement cast him as the initial aggressor or at least a
“mutual” participant. J.A. 633 (“I don’t have any evidence that indicates that
[Hernandez] was the primary aggressor against him or that he was not, they weren’t
participating in mutual combat, which, again, is an exclusion to . . . self-defense.”).
Defense counsel’s response – the heart of Rios’s present claim – was to concede
that he could not provide the court with evidence that Rios was not the first physical
aggressor, request a 30-second break to confer with co-counsel, and then abandon the
request for a self-defense instruction. Instead, Rios’s counsel asked the court to charge
the jury on accident and voluntary manslaughter, in addition to murder. The state did not
object, and the court agreed.
Closing arguments followed. Consistent with Rios’s second statement to the
police and the outcome of the charge conference, defense counsel argued to the jury that
Hernandez’s death was “a terrible accident.” J.A. 642. Tracking Rios’s statement,
counsel described Rios as acting “in his own defense” as he struggled with Hernandez
over the gun. J.A. 641. And previewing the charges already agreed upon, Rios’s counsel
explained to the jury that it would be instructed on the law of murder, accident, and
The state, in its closing, argued for a murder verdict,
characterizing the shooting as “not self-defense or an accident or a suicide,” but “simply
Pg: 5 of 12
an execution.” J.A. 663. Returning repeatedly to Rios’s shifting accounts of the night in
question, the state urged the jury not to credit Rios’s ultimate claim that the shooting was
an accident. It also argued that Rios’s version of events was inconsistent with the
physical evidence and with the failure to recover a gun at the scene of the shooting. The
jury deliberated for less than two hours before finding Rios guilty of murder, and the
court sentenced him to 30 years in prison.
On direct appeal, Rios argued that the trial court erred in failing to instruct the jury
on self-defense. The state appellate court rejected that claim on the ground that Rios had
waived appellate review of the issue. Trial counsel “abandoned his request” for a jury
charge on self-defense at the charge conference, the appellate court determined, “when he
acquiesced and asked the trial court to charge voluntary manslaughter, accident, and
murder[,]” and “an issue conceded in the trial court cannot be argued on appeal.” Rios,
696 S.E.2d at 612. The court separately noted counsel’s subsequent failure to object to
the instructions given to the jury – even after the trial court specifically asked whether
there were objections – which also had the effect of waiving the right to appellate review.
Rios then sought post-conviction relief, arguing in part that his trial counsel
provided ineffective assistance when he abandoned the request for a self-defense
instruction. At a hearing on the motion, Rios’s trial attorneys testified that the accident
theory was the heart of their defense, and that they were “most concerned” that the court
instruct the jury on accident, rather than self-defense. J.A. 766. But one attorney also
Pg: 6 of 12
testified that the record contained evidence responsive to the trial court’s concerns about
a self-defense charge that had not been presented to that court during the charge
conference: Specifically, Rios’s mother testified that it was Hernandez who pushed Rios
first, rather than – as in Rios’s own statement – Rios who first shoved Hernandez.
The PCR court rejected Rios’s ineffective assistance claim under the two-part
standard articulated by Strickland v. Washington, 466 U.S. 668 (1984). To prevail under
Strickland, a petitioner must show both deficient performance by counsel and prejudice
to the defense, meaning a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” J.A. 831 (citation
omitted). The PCR court believed that Rios could show deficient performance under the
first prong of Strickland, given counsel’s “fail[ure] to articulate to the trial judge when he
was originally arguing for a self-defense jury charge [evidence] relate[d] to who pushed
first in the argument that evening.” J.A. 834; see also J.A. 858, 860. But the PCR court
determined that Rios could not satisfy Strickland’s prejudice prong by showing a
reasonable likelihood that the outcome of his trial would have been different had counsel
not abandoned his request and a self-defense charge been given, both because of the
insubstantial nature of the evidence supporting self-defense and because Rios lacked
credibility as a result of his changing stories. The Supreme Court of South Carolina
denied Rios’s petition for certiorari.
Rios then filed a habeas petition in federal court under 28 U.S.C. § 2254, raising
the same ineffective assistance claim. A magistrate judge recommended denying the
petition, finding, like the PCR court, that Rios could not show the necessary Strickland
Pg: 7 of 12
prejudice. The magistrate judge’s reasoning, however, differed from that of the PCR
court. Citing a case from the Eleventh Circuit, Davis v. Secretary for Department of
Corrections, 341 F.3d 1310, 1316 (11th Cir. 2003), the magistrate judge concluded that
when deficient performance consists of the failure to preserve an issue for appeal, the
appropriate prejudice inquiry is whether, but for counsel’s failure, there is a reasonable
likelihood that the result of the appeal, rather than the trial, would have been different.
But even under that more lenient standard, the magistrate judge found, Rios could not
prevail: Because Rios’s own statement indicated that he was the first to initiate physical
contact, and also because he did not admit to firing the gun to defend himself, there was
no reasonable likelihood that an appellate court would reverse Rios’s conviction for
failure to instruct on self-defense.
The district court adopted the report and recommendation of the magistrate judge.
The district court noted that our circuit continues to apply the “traditional prejudice
standard outlined in Washington v. Strickland” – asking whether there is a reasonable
likelihood of a different outcome at trial – rather than the Davis standard employed by
the magistrate judge. J.A. 920 n.3. The court also noted that the Eleventh Circuit itself
has called Davis into some question. But the court found it unnecessary to resolve the
issue, agreeing with the magistrate judge that Rios could not show prejudice even under a
different-outcome-on-appeal standard, and denying Rios’s petition on that ground alone.
This timely appeal followed.
Pg: 8 of 12
We review the district court’s denial of a habeas petition de novo. Lee v. Clarke,
781 F.3d 114, 122 (4th Cir. 2015). Our analysis is circumscribed, however, by the
amendments to 28 U.S.C. § 2254 enacted in the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Under AEDPA, we may not grant relief on a claim
adjudicated on the merits in a state court proceeding unless, as relevant here, the state
court’s determination is “contrary to, or involved an unreasonable application of, clearly
established [f]ederal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1).2 Here, as the parties agree, the relevant adjudication is that of the
state PCR court denying Rios’s ineffective assistance claim on the merits, not the state
supreme court’s non-merits denial of discretionary review. See State v. Rucker, 471
S.E.2d 145, 145 (S.C. 1996) (denial of a petition for a writ of certiorari “does not dismiss
or decide the underlying appeal”). Thus, § 2254 relief is barred unless the PCR court
applied a legal standard that is contrary to federal law as “clearly established in the
holdings of [the Supreme] Court,” Harrington v. Richter, 131 S. Ct. 770, 785 (2011), or,
having “identifie[d] the correct governing legal principle,” applied that principle to the
facts of the case in a way that is “objectively unreasonable,” Wiggins v. Smith, 539 U.S.
510, 520, 521 (2003) (citation and internal quotation marks omitted).
AEDPA also allows for federal habeas relief when a state court decision rests on
“an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). Rios does not
contend that the state PCR court relied on any unreasonable factual findings, so we do not
address this provision further.
Pg: 9 of 12
Indeed, the scope of our inquiry in this case is narrower still, in that Rios is
entitled to relief only if the PCR court’s prejudice determination is contrary to or
unreasonably applied Supreme Court precedent. As the PCR court explained, to prevail
under Strickland, a petitioner must show both that his lawyer’s performance was
constitutionally deficient and also that this deficiency prejudiced the defense. Strickland,
466 U.S. at 690, 694. An insufficient showing under either prong ends the inquiry, and if
the PCR court’s prejudice holding withstands the deferential review mandated by §
2254(d)(1), then there is no need to reach Strickland’s deficiency prong. Strickland, 466
U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed.”).
We conclude that the PCR court’s prejudice holding – that Rios cannot show a
reasonable likelihood that the outcome of his trial would have been different had defense
counsel pressed for a self-defense instruction and such an instruction been given – falls
well within the parameters of § 2254(d)(1). First, the state court’s analysis is not contrary
to any federal law “clearly established” in Supreme Court holdings. See 28 U.S.C. §
2254(d)(1); Harrington, 131 S. Ct. at 785. On the contrary: The PCR court “identifie[d]
the correct governing legal principle from [the Supreme] Court’s decisions,” Wiggins,
539 U.S. at 520 (citation omitted), when it applied the well-established, two-prong
Strickland standard – including Strickland’s instruction that when, as here, a petitioner
challenges a conviction, prejudice is measured by “whether there is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable doubt
respecting guilt,” leading to a different outcome at trial. Strickland, 466 U.S. at 695.
Pg: 10 of 12
As noted above, the magistrate judge, relying on the Eleventh Circuit’s decision in
Davis, applied a different standard under Strickland’s prejudice prong: When an alleged
deficient performance consists of the failure to preserve an error for appeal, the
magistrate judge concluded, the proper inquiry is into the likelihood of a different
outcome on appeal had appellate review not been waived. See Davis, 341 F.3d at 1316
(“[W]hen a defendant raises the unusual claim that trial counsel, while efficacious in
raising an issue, nonetheless failed to preserve it for appeal, the appropriate prejudice
inquiry asks whether there is a reasonable likelihood of a more favorable outcome on
appeal had the claim been preserved.”). In the posture of this case, however, we are not
at liberty to consider or apply a new modification of what the district court aptly termed
the “traditional prejudice standard outlined in  Strickland.” J.A. 920 n.3. The only
question under AEDPA is whether the different-outcome-at-trial standard employed by
the PCR court is contrary to “clearly established [f]ederal law, as determined by the
Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), and whatever the merits of
the Eleventh Circuit’s approach in Davis, that single circuit court decision does not
constitute “clearly established [f]ederal law” under § 2254(d)(1). As the Supreme Court
has made clear, a state court does not contravene or misapply “clearly established” law
by “declin[ing] to apply a specific legal rule” – like Davis’s different-outcome-on-appeal
standard – “that has not been squarely established by [the Supreme] Court.” Knowles v.
Mirzayance, 129 S. Ct. 1411, 1419 (2009).3
Accordingly, we also need not consider whether the magistrate judge was correct
Pg: 11 of 12
Effectively conceding the point, Rios does not argue on appeal that the PCR court
erred by failing to follow Davis. Instead, Rios’s position is that the PCR court’s
determination that he could not show a reasonable likelihood of a different outcome at
trial was an “unreasonable application” of Strickland under § 2254(d)(1). We cannot
agree. The PCR court rested in part on an evaluation of the record evidence in support of
self-defense, finding that it was not sufficient to give rise to a reasonable likelihood that a
self-defense instruction would have led to a different verdict. Particularly in light of
Rios’s own statement, introduced by the government at trial, indicating that Rios was the
first physical aggressor in his altercation with his wife – which, if accepted by the jury,
would preclude a finding of self-defense – the PCR court’s assessment was not
“objectively unreasonable.” Wiggins, 539 U.S. at 521 (citation omitted). Nor was it
“unreasonable” for the PCR court to conclude that it was especially unlikely that a selfdefense instruction would have led to an acquittal in light of Rios’s damaged credibility,
arising from his shifting and starkly divergent accounts of what happened on the night of
in assuming that the narrow rule crafted by Davis would apply to this case at all, given
that Rios’s ineffective assistance claim focuses on counsel’s failure to press for a selfdefense instruction at trial at least as much as counsel’s failure to preserve the issue for
appeal. See Rios, 696 S.E.2d at 612 (separately addressing counsel’s abandonment of the
self-defense charge at trial and counsel’s failure to object and preserve the question for
appeal); cf. Davis, 341 F.3d at 1315–16 (distinguishing “simple failure” to preserve an
issue for appeal from failure to press a claim at trial).
Pg: 12 of 12
Under § 2254(d)(1), “[t]he question is not whether a federal court believes the
state court’s determination under the Strickland standard was incorrect but whether that
determination was unreasonable – a substantially higher threshold.” Mirzayance, 129 S.
Ct. at 1420 (internal quotation marks omitted). In light of the evidence presented at trial,
Rios cannot meet that “high threshold” with respect to the PCR court’s prejudice
determination, and for that reason, his § 2254 petition was properly denied.
For the foregoing reasons, we affirm the judgment of the district court.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?