Herring v. Byars et al

Filing 32

OPINION AND ORDER ADOPTING 28 REPORT AND RECOMMENDATIONS. Defendant's 17 motion for summary judgment is granted and the case is dismissed with prejudice. The court denies a certificate of appealability. Signed by Chief Judge Margaret B Seymour on 3/19/2012. (abuc) Modified to replace with corrected document on 3/20/2012 (jpet, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

H. Dewain Herring,
Petitioner,
vs.
Robert M. Stevenson, III, Warden of
Broad River Correctional Institution,
Respondent.

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OPINION AND ORDER
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Petitioner H. Dewain Herring is a prisoner in the custody of the South Carolina
Department of Corrections who currently is housed at the Broad River Correctional Institution.
Petitioner, represented by counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
asserting that he is being held in custody unlawfully. Petitioner seeks relief in the form of
vacatur of his conviction.
This matter is before the court on Respondent’s1 motion for summary judgment filed
April 29, 2011. ECF No. 17. Petitioner filed a response in opposition on June 15, 2011. ECF
No. 26. In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 73.02, D.S.C., this matter was
referred to United States Magistrate Judge Paige J. Gossett for pretrial handling. The Magistrate
Judge issued a Report and Recommendation on January 25, 2012, in which she recommended
that summary judgment be granted. ECF No. 28. On February 13, 2012, Petitioner filed
objections to the Report and Recommendation. ECF No. 29.

1

Petitioner initially named William R. Byars, Jr., director of the South Carolina
Department of Corrections, as an additional respondent. Byars was previously
terminated as a party because he is not Petitioner’s immediate custodian. ECF No. 8.
Although Petitioner subsequently named Byars in his amended petition, the court
construes the previous order as terminating Byars once again.

The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility for making a final determination remains with
this court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de
novo determination of any portions of the Report and Recommendation to which a specific
objection is made. The court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1).
I. BACKGROUND
On February 15, 2006, Petitioner was indicted in Richland County, South Carolina, for
murder and pointing and/or presenting a firearm. ECF No. 4-1 at 19 & 21. Prior to trial,
Petitioner moved to exclude various evidence seized during three searches of his home. ECF
No. 5-15 at 31; see ECF No. 5-16 at 1-24. On May 21, 2007, Petitioner was convicted by a jury
of both offenses. Id. at 16-17. Petitioner was sentenced to thirty years imprisonment for murder
and five years imprisonment for pointing and/or presenting a firearm, to be served concurrently.
Id. Petitioner filed a notice of appeal on May 29, 2007. ECF No. 1-2 at 1. On Petitioner’s
motion, the South Carolina Supreme Court certified the case for review on February 5, 2009,
transferring jurisdiction from the appellate court. See ECF No. 1-3 at 1; S.C. App. Ct. R. 204(b).
Petitioner raised the following issues in his appeal to the South Carolina Supreme Court:
1.

Did the trial court err in denying the defense motions to suppress the three
searches of appellant’s residence and the fruits of those searches?

2.

Did the trial court abuse its discretion in allowing lay witnesses to give their
opinion of what could be seen on the video, when those witnesses did not
personally observe the actual events depicted in that portion of the video?

3.

Did the trial court abuse its discretion in denying the defense mistrial motion
2

based on the admission of improper lay opinion testimony?
4.

Did the trial court commit reversible error in denying the requested charge on
accident?

5.

Did the trial court commit reversible error in denying the requested charges on
involuntary manslaughter based on negligent use of a deadly weapon?

6.

Did the trial court commit reversible error in granting the State’s request to
charge based on State v. Mouzon?

7.

Did the trial court err in denying the motion for directed verdict with respect to
the charge of pointing and presenting a firearm?

8.

Was the cumulative prejudice that resulted from all the erroneous rulings such
that appellant is entitled to a new trial?

ECF No. 1-4 at 7. On June 16, 2009, Petitioner filed a motion to recuse Chief Justice Jean Toal.
ECF No. 1-8. Petitioner explained that he was challenging the validity of a search warrant that
was obtained by telephone and fax pursuant to an administrative order issued by Chief Justice
Toal, as well as the validity of the order itself. ECF No.1-8 at 3-4. Petitioner’s motion was
denied on June 18, 2009. ECF No. 1-9.
The South Carolina Supreme Court heard oral arguments on June 23, 2009. ECF No. 110 at 1. On December 21, 2009, the supreme court affirmed Petitioner’s conviction and sentence
by published opinion. ECF No. 1-10; State v. Herring, 692 S.E.2d 490 (S.C. 2009). On January
20, 2010, Petitioner filed a petition for rehearing, requesting that the supreme court reconsider its
ruling and apply the holding of State v. Belcher, 685 S.E.2d 802 (S.C. 2009), which was issued
on October 12, 2009, between the date of the oral argument and the ruling in Petitioner’s case.
ECF No. 1-11. The petition for rehearing also restated Petitioner’s request that Chief Justice
Toal recuse herself from participation in the case. Id. The supreme court denied the petition for
rehearing on May 14, 2010, and remitted the case to the lower court. ECF No. 1-12; ECF No. 13

13.
The South Carolina Supreme Court summarized the facts of Petitioner’s case as follows:
Herring was charged with the January 29, 2006 shooting of an employee
of Chastity’s Gold Nightclub (Chastity’s), a strip club in Columbia. The facts
giving rise to the shooting are as follows.
After golfing in Aiken with friends on the day of January 28, 2006, at
which he had consumed numerous beers, Herring stopped by a bar for a few
drinks on the way home, and then returned home around 7:30 p.m. Herring had a
couple more drinks at his home with a golfing buddy before the friend left.
Herring laid down intending to go to sleep, but got up and decided to go a Forest
Acres restaurant. When the restaurant was closed, Herring changed his mind and
went to Platinum Plus, a Columbia strip club. He had a drink and paid a dancer
for a lap dance and left Platinum Plus. On his way home, he decided to stop by
Chastity’s on River Drive; he arrived shortly after 11:00 p.m. According to
Herring, he ordered a drink at the bar, but he has very little recall of any events
for several hours thereafter.
According to witnesses and employees of Chastity’s, Herring purchased a
drink and paid for a $30.00, three minute lap dance from a dancer named Mia.
After the lap dance, Herring paid Mia for a $300 dance in what was known as the
Champagne room.
Mia took Herring to the Champagne room and told him to wait while she
went to freshen up. A bouncer, Carl Weeks, went to check on Herring a few
minutes later and found him naked and masturbating on the sofa. The bouncer
told Herring he could not do that and told him he would have to leave. When
Herring did not move, the bouncer got the manager, John Johnson (John John).
When they returned, Herring was dressed. Weeks told Herring he would either
have to leave, or they would call police and have him arrested for solicitation of
prostitution. According to Weeks, Herring responded, “No. I will fucking shoot
you.” John John and a bouncer named Donnie Hawkins escorted Herring to the
front door at 11:57 p.m. John John walked outside with Herring and used a
two-way radio to call Herring’s license plate number out to Weeks, who was
standing in the doorway, as Herring drove away. Weeks and Hawkins watched as
Herring backed up his black SUV, and fumbled with his glove compartment with
his right hand. Herring slowly pulled away, putting down the passenger side
windows as he went. Hawkins, Weeks and John John had just gone inside when
they saw Herring’s vehicle coming back down River Drive toward Chastity’s.
According to Hawkins, John John was right inside the door. Hawkins saw a flash
of light come from the side of the vehicle, and heard John John say, “Oh shit!”
John John fell to the floor, having been hit in the left ear by a bullet which came
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through the front door. He died a short while later at the hospital.
Upon arriving at the scene of Chastity’s, police were given Herring’s
license tag number, which was registered to his office address in Columbia.
Police patrolled the office parking lot, but did not find the vehicle. They then
determined Herring’s home address and went there at 2:10 a.m. on January 29,
2006. A police officer, seeing a light on in the garage, peeked in the garage
window to see if the suspect was there. Although the suspect was not there, the
officer did see the vehicle, which they realized was Herring’s. They knocked on
the door and rang the doorbell several times and, receiving no answer, they
returned to the police station and obtained a search warrant for the home.
Police went back to Herring’s residence at approximately 4:00 a.m. to
execute the search warrant. They rang the doorbell several times but received no
answer. They entered forcibly, announcing they were police with a search
warrant. Officer Linfert testified that he saw Herring in the hallway and
recognized him from the photo on his driver’s license. Linfert told Herring to get
down on the ground, but Herring ran back down the hall toward a bedroom. He
followed Herring to the bedroom, and saw Herring pull a gun from a nightstand
and point it in his direction. Officer Linfert yelled at him to drop the gun and then
fired one shot at him. Other officers also opened fire, and Herring was hit in the
arm. Herring called 9–1–1 and told them he believed there were intruders in his
home. After talking with the 9–1–1 operator, Herring surrendered upon realizing
the “intruders” were indeed police officers.
Herring initially told police he had not left the house after returning home
from Aiken; he did not recall going to Chastity’s. When police told him of the
video tape which showed him entering and leaving Chastity’s, he remembered
only being at the bar, having a drink, and a gunshot firing; the next memory he
had was of police bursting into his home. He subsequently began remembering
more details, such as paying for a lap dance from a light skinned black woman.
Bullet fragments removed from John John’s head conclusively matched a
.357 Magnum Ruger owned by Herring; the Ruger was found under some
clothing in his bedroom closet during a SLED search of the home. Gunshot
residue was found on the passenger side of Herring’s vehicle. A jury convicted
Herring of murder and pointing and presenting a firearm.
State v. Herring, 692 S.E.2d 490, 492-93 (S.C. 2009) (footnotes omitted).
Petitioner filed the within § 2254 petition on October 21, 2010. ECF No. 1. Petitioner
asserts the following ground for relief:

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1.

Petitioner’s Due Process right to a fair trial was denied because the jury
instructions equated the mental state required for a conviction of murder with the
same mental state necessary for the lesser included offense of involuntary
manslaughter, thereby allowing the jury to find Petitioner guilty of murder even if
Petitioner possessed the mitigating state of mind for involuntary manslaughter.

2.

Petitioner’s Due Process rights to a fair trial were denied because the jury was not
instructed on the defense of accident nor provided instructions pertaining to the
negligent use of a firearm.

3.

Petitioner was denied his right to Due Process as a result of the South Carolina
Supreme Court’s decision to refuse to apply its decision in State v. Belcher, . . .
685 S.E.2d 802 (2009) to the Petitioner as required by Griffith v. Kentucky[,] 479
U.S. 314 (1987).

4.

Petitioner was denied his right to Due Process as a result of the refusal of the
Chief Justice of the South Carolina Supreme Court to recuse herself from
participating in the appeal from [Petitioner’s] conviction which necessarily
involved a direct review of the legality of the Chief Justice’s Administrative
Order.

5.

Petitioner was denied his right to be free from unreasonable searches and seizures
guaranteed by the Fourth Amendment to the United States Constitution and
Petitioner was further deprived of his right to fully and fairly litigate this Fourth
Amendment claim in the South Carolina state courts as a result of the refusal of
the Chief Judge to recuse herself from participation and the Court’s refusal to
apply the correct and controlling legal standard applicable to Fourth Amendment
claims.

ECF No. 13 at 7. The petition is governed by the terms of 28 U.S.C. § 2254, as amended by the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), which became effective on April
24, 1996.
II. STANDARD OF REVIEW
To prevail on a motion for summary judgment, the movant must demonstrate that: (1)
there is no genuine issue as to any material fact; and (2) he is entitled to summary judgment as a
matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The facts and any inferences drawn from the facts should be viewed in a light most favorable to
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the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The party
seeking summary judgment shoulders the initial burden of demonstrating to the district court that
there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the movant has made this threshold demonstration, the non-moving party, to survive the
motion for summary judgment, may not rest on the allegations averred in his pleadings; rather he
must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
An application for a writ of habeas corpus with respect to a claim that was adjudicated on
the merits in state court proceedings cannot be granted unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A determination of a factual issue made by a state court is presumed to be
correct. Petitioner has the burden of rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). “Where a state court’s decision is unaccompanied
by an explanation, the habeas petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.” Harrington v. Richter, 131 S. Ct. 770, 784
(2011).
A decision is “contrary to” clearly established federal law if it either applies a legal rule
that contradicts prior Supreme Court holdings or reaches a conclusion different from that of the
Supreme Court “on a set of materially indistinguishable facts.” Buckner v. Polk, 453 F.3d 195,
198 (4th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A decision is an
“unreasonable application” of clearly established federal law if it “unreasonably applies” a
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Supreme Court precedent to the facts of the petitioner’s claim. Id. (quoting Williams, 529 U.S.
at 413). The court’s “review is . . . deferential because [the court] cannot grant relief unless the
state court’s result is legally or factually unreasonable.” Bell v. Jarvis, 236 F.3d 149, 163 (4th
Cir. 2000) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)).
III. DISCUSSION2
A.

Jury Instructions for Murder and Involuntary Manslaughter
The trial judge instructed the jury that because Petitioner was charged with murder, the

prosecution must prove that he “killed another with malice aforethought.” ECF No. 5-14 at 35.
The trial judge instructed the jury that:
Malice is defined in the law as a term of art; that is, a technical term importing
wickedness, excluding just cause or legal excuse. An old South Carolina case
says that malice does not necessarily impart ill will towards the individual injured
but signifies rather a general malignant recklessness of the lives and safety of
others or a condition of mind which shows a heart regardless of social duty and
fatally bent on mischief.
Id. at 35-36.3 The trial judge also instructed the jury on the lesser included offense of
involuntary manslaughter, stating that:
Involuntary manslaughter is the killing of another without malice and
unintentionally while engaged in either an unlawful act not amounting to a felony
and not naturally tending to cause death or great bodily harm; or, a lawful act with
reckless disregard for the safety of others. . . . Recklessness is a conscious failure
to use ordinary care. A reckless disregard for the safety of others means that you
[are] not interested in the consequences of your acts or the rights and safety of

2

Petitioner filed objections to the Magistrate Judge’s findings on all of his claims.
Although the court will conduct a de novo review of all of Petitioner’s objections, the
court shall address all but one of Petitioner’s claims without reference to the Report and
Recommendation.
3

The “old South Carolina case” is State v. Mouzon, 99 S.E.2d 672 (S.C. 1957).
See ECF No. 16 at 21.
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others.
Id. at 38-39.
Before the South Carolina Supreme Court, Petitioner argued that the Mouzon language
concerning “general malignant recklessness” constituted reversible error for several reasons.
Petitioner argued that the prosecution’s sole theory of the case was that he aimed the gun and
fired at the door with actual malice, while the defense theory of the case was that he accidentally
or recklessly discharged the gun without aiming at the door. ECF No. 1-4 at 45. Accordingly,
Petitioner argued, there was no evidence of “some middle ground mental state of ‘super
recklessness’ that would warrant a charge of the Mouzon language.” Id. Petitioner further
argued that South Carolina Code § 16-3-60, which defines the mental state for involuntary
manslaughter as “reckless disregard for the safety of others,” had supplanted or overruled the
common law principle stated in Mouzon that “recklessness with regard to the lives and safety of
others could rise to the level of malice to support a conviction of murder.” Id. at 46.
Petitioner also argued that the crime of murder based on the Mouzon recklessness
standard was unconstitutionally vague because “[t]here is no articulable means by which to
differentiate between the recklessness required for involuntary manslaughter and that which
would elevate an offense to murder.” ECF No. 1-4 at 47. Finally, Petitioner argued that the
Mouzon charge unconstitutionally shifted the burden of proof with respect to his mental state
because “if the jury accepted the defense evidence [which] established that [he] acted with
recklessness, at most,” the burden would be shifted onto him “to prove that the recklessness
involved in this case did not rise to the inarticulable, undefined standard of recklessness that
could be deemed malice.” Id. The South Carolina Supreme Court summarily rejected

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Petitioner’s arguments, citing to an earlier case upholding the Mouzon instruction and an earlier
case holding that “in determining prejudice[] from jury instructions, [a] court must find that,
viewing the charge in its entirety and not in isolation, there is a reasonable likelihood that the
jury applied the instruction in a way that violates the Constitution.” ECF No. 1-10 at 14 n.7.
A petitioner alleging that his right to due process was violated by an improper jury
instruction “must show both that the instruction was ambiguous and that there was a reasonable
likelihood that the jury applied the instruction in a way that relieved the State of its burden of
proving every element of the crime beyond a reasonable doubt.” Waddington v. Sarausad, 555
U.S. 179, 190-91 (2009) (quotations omitted). “In making this determination, the jury
instruction may not be judged in artificial isolation, but must be considered in the context of the
instructions as a whole and the trial record.” Id. at 191 (quotation omitted). “[T]he pertinent
question is whether the ailing instruction by itself so infected the entire trial that the resulting
conviction violates due process.” Id. (quotation omitted).
Contrary to Petitioner’s assertion, the jury instructions did not equate the mental state
required for murder with that required for involuntary manslaughter. The trial court instructed
the jury that one who unintentionally kills another while engaged in “a lawful act with reckless
disregard for the safety of others” is guilty of involuntary manslaughter. ECF No. 5-14 at 38-39.
On the other hand, the trial court instructed the jury that malice “signifies . . . a general
malignant recklessness of the lives and safety of others or a condition of mind which shows a
heart regardless of social duty and fatally bent on mischief.” Id. at 35-36. A “malignant”
recklessness suggests a state of mind significantly more culpable and destructive than “mere”
recklessness. This is especially true when the instructions imply that a “malignant recklessness”

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is synonymous with “a condition of mind which shows a heart regardless of social duty and
fatally bent on mischief.”
Petitioner, focusing on the disjunctive “or,” contends that the instruction defines “two
separate and alternative means of proving malice.” ECF No. 26 at 6-7. It is immaterial whether
the two descriptions are considered to be “two separate and alternative means of proving malice”
or simply two phrases attempting to express the same indefinite concept. The question is
whether there is a reasonable likelihood that the jurors, hearing the “malignant recklessness”
language in the context in which it was presented, understood it to mean that Petitioner could be
convicted of murder based on the “simple” recklessness associated with involuntary
manslaughter.
The adjective “malignant,” as well as the description of malice as involving “a heart
regardless of social duty and fatally bent on mischief,” distinguished this more culpable
recklessness from ordinary recklessness. Petitioner’s defense at trial was that he accidentally
fired his gun while taking it from his glove compartment. The court finds that it is not
reasonably likely that, if the jurors believed Petitioner’s theory, they could have considered such
an accident to be “malignant recklessness.” Accordingly, the South Carolina Supreme Court’s
holding that these jury instructions did not violate Petitioner’s right to due process was not an
unreasonable application of clearly established federal law.
B.

Jury Instructions on Accident and Negligent Use of a Firearm
Petitioner’s trial counsel requested that the trial court instruct the jury on accident, as

follows:
“If it [is] shown that the killing was unintentional; that it was done while the
[defendant] was engaged in a lawful enterprise, and was not the result of
11

negligence, the homicide will be excused [as] accident.” The defendant does not
bear the burden of proving accident; rather, the State must prove beyond a
reasonable doubt that the defendant acted with the intent to kill the deceased.
ECF No. 5-16 at 29. The trial judge denied this charge as inapplicable to the facts of the case
because “the defense of accident is only allowable when the defendant is involved and engaged
in a lawful act.” ECF No. 5-13 at 7-8. Trial counsel also requested that the involuntary
manslaughter charge include a statement that “[o]ne who causes the death of another by the
negligent use of a deadly weapon or instrumentality may be convicted of involuntary
manslaughter.” ECF No. 5-16 at 25. Additionally, trial counsel requested that the involuntary
manslaughter charge include the following:
How do you, as jurors, think that a man of average sense in this position would
handle a dangerous weapon or implement, under given circumstances generally?
Then, under the testimony of the case you are trying, has the state shown beyond
a reasonable doubt that the defendant was guilty of negligence–that is, he did act
in that manner with the dangerous weapon or implement as a man of average
sense and disposition, under the circumstances which the testimony shows to have
existed in the case–he did act in that way, and, as a result of that, he did inflict the
mortal wound, as alleged in the indictment, which caused the death of the
defendant, as charged, if you find it so, then that will be a case of [involuntary]
manslaughter.
ECF No. 5-16 at 27. The trial judge did not give either instruction to the jury.
Before the South Carolina Supreme Court, Petitioner argued that the trial court erred in
refusing to give the accident charge because evidence introduced at trial showed that Petitioner
was engaged in a lawful activity at the time of the shooting. ECF No. 1-4 at 42. Specifically,
Petitioner noted that he had a valid concealed weapon permit and that his theory at trial was that
the gun accidentally discharged while being transferred from the glove compartment of his car.
Id. at 42-43. Petitioner also argued that the trial court erred in refusing to instruct the jury that
negligent use of a deadly weapon constitutes involuntary manslaughter because this was a
12

correct statement of the law, and because it was necessary to counterbalance the jury instruction
stating that “[i]f a person using a deadly weapon deliberately and intentionally without just cause
or legal excuse takes the life of another, malice may be inferred.” Id. at 43-44; ECF No. 5-14 at
37.
The South Carolina Supreme Court summarily rejected Petitioner’s argument as to the
accident instruction, citing to an earlier case holding that “for homicide to be excusable on the
ground of accident, it must be shown that the killing was unintentional, the defendant was acting
lawfully, and due care was exercised in the handling of the weapon.” ECF No 1-10 at 14 n.7.
The supreme court also cited an earlier case holding that “to warrant reversal, [the] trial court’s
refusal to give [a] requested charge must be both erroneous and prejudicial to [the] defendant.”
Id. The supreme court similarly rejected Petitioner’s argument as to involuntary manslaughter
with a deadly weapon, citing an earlier case holding that “failure to give requested jury
instructions is not prejudicial error where instructions given adequately cover the law.” Id.
Regardless of whether any evidence introduced at trial supported Petitioner’s theory that
the shooting constituted an excusable accident, there is no constitutional error resulting from the
trial court’s refusal to give the requested instruction on accident. As stated above, an erroneous
or omitted jury instruction violates due process only if there is a reasonable likelihood that the
jury convicted a defendant without finding every necessary element to be proven beyond a
reasonable doubt. Petitioner’s requested instruction stated that a killing is excusable if it is
unintentional, occurring during the course of a lawful activity, and not the result of negligence.
However, the trial judge instructed the jury that malice, an essential element of murder, requires
conduct that is willful, deliberate, intentional, or at least done in “a general malignant

13

recklessness of the lives and safety of others or a condition of mind which shows a heart
regardless of social duty and fatally bent on mischief.” ECF No. 5-14 at 35-36. If the jurors
believed that the shooting occurred unintentionally while Petitioner was engaged in a lawful
activity and not behaving negligently, they could not have convicted Petitioner of murder under
the instructions given.
Similarly, the trial court did not commit constitutional error in refusing to give an
instruction stating that a defendant who causes the death of another by the negligent use of a
deadly weapon may be convicted of involuntary manslaughter. The trial court correctly and
adequately instructed the jury on involuntary manslaughter, and these instructions would apply
to the use of a deadly weapon in “reckless disregard for the safety of others.” ECF No. 5-14 at
38-39. Furthermore, there was no need to “balance” the instruction stating that “[i]f a person
using a deadly weapon deliberately and intentionally without just cause or legal excuse takes the
life of another, malice may be inferred” with an instruction stating that the use of a deadly
weapon does not necessarily imply malice. Id. at 37. The instruction does not suggest that the
use of a deadly weapon necessarily implies malice, but rather states that malice may be inferred
if this use was “deliberate[] and intentional[] without just cause or legal excuse.” The South
Carolina Supreme Court’s holding that the trial court’s omission of Petitioner’s requested jury
instructions did not violate his right to due process was not an unreasonable interpretation of
clearly established federal law.
C.

Application of State v. Belcher
In State v. Belcher, the South Carolina Supreme Court considered the long-accepted jury

instruction stating that “malice may be inferred from the use of a deadly weapon.” Belcher, 685

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S.E.2d at 804. The supreme court held that this instruction “is no longer good law in South
Carolina where evidence is presented that would reduce, mitigate, excuse or justify the
homicide.” Id. at 804. The supreme court, noting that malice necessarily includes the absence of
justification, excuse, or mitigation, described this instruction as “only a half-truth.” Id. at 808.
For example, if a defendant intentionally uses a deadly weapon in self-defense, “[t]he absence of
justification, excuse, or mitigation cannot be inferred from the use of a deadly weapon standing
alone.” Id. The supreme court held that its ruling would be “effective in this case and for all
cases which are pending on direct review or not yet final where the issue is preserved.” Id. at
810.
In his petition for rehearing, Petitioner argued that the South Carolina Supreme Court
erred in failing to apply the holding of Belcher, which was decided after oral arguments but
before the ruling in his case. ECF No. 1-11 at 15-17. However, the jury instruction given at
Petitioner’s trial differs significantly from the instruction at issue in Belcher. The trial judge
instructed the jury that “[i]f a person using a deadly weapon deliberately and intentionally
without just cause or legal excuse takes the life of another, malice may be inferred.” ECF No. 514 at 37. Rather than simply stating that malice may be inferred from “the use of a deadly
weapon,” the instruction also informed the jurors that Petitioner must have “deliberately and
intentionally . . . take[n] the life of another” and that this must have been “without just cause or
legal excuse.” This language adequately answers the criticism put forth in Belcher by forbidding
the jury to infer malice from the use of a deadly weapon if there was just cause or a legal excuse.
More importantly, there is no reasonable chance that the instruction given permitted the jury to
draw an improper inference of malice or shifted any burden onto Petitioner. Petitioner’s theory

15

at trial was that he had accidentally or recklessly discharged the gun, and the “deliberate[] and
intentional[]” language would not permit an inference of malice if the jury believed this theory.
Because the holding of Belcher is not relevant to Petitioner’s case, there can be no constitutional
error.
D.

Recusal of Chief Justice Toal
At trial and on appeal, Petitioner argued that a search of his home conducted pursuant to

a warrant was illegal because the warrant had been obtained by a State Law Enforcement
Division (“SLED”) officer over the telephone and by fax, without the officer’s personal
appearance before a magistrate and without his affidavit being sworn before the magistrate. ECF
No. 1-8 at 3. Petitioner contended that the magistrate instructed the officer to follow this
procedure, which was approved in a July 26, 2001 order by Chief Justice Toal. Id. Petitioner
argued that Chief Justice Toal’s order was contrary to the South Carolina Constitution, to various
South Carolina statutes, and to holdings of the South Carolina Supreme Court. Id. at 3-4.
Petitioner maintained that Chief Justice Toal’s recusal was required by due process in order “to
ensure a fair and impartial hearing and disposition of [his] challenge to the authority of the Chief
Justice to issue the order allowing the telephone and facsimile warrant procedure.” Id. at 4.
Petitioner’s request for recusal was denied without comment. ECF No. 1-9.
The Magistrate Judge found that the South Carolina Supreme Court had not unreasonably
misapplied clearly established federal law in denying Petitioner’s motion for recusal. ECF No.
28 at 21. The Magistrate Judge distinguished In re Murchison, 349 U.S. 133 (1955), the primary
case cited by Petitioner, in which the Supreme Court held that a judge allowed under state law to
conduct secret, one-person grand jury proceedings could not act as the judge in a criminal

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contempt action arising from these proceedings. The Supreme Court found that because the
judge played a significant role in the “accusatory process,” he could not “be, in the very nature
of things, wholly disinterested in the conviction or acquittal of those accused.” Id. at 137. The
Magistrate Judge found that “alleged bias stemming from a justice’s ostensible interest in
defending a position or rule she previously adopted is not the type of ‘interest in the outcome’
proscribed by Murichson.” ECF No. 28 at 21-22. Rather, the Magistrate Judge found that the
situation is more akin to a litigant requesting recusal by an appellate judge in an appeal arguing
against precedential authority previously authored by that judge. Id. at 22. The Magistrate
Judge found that Petitioner had not demonstrated that “this case was one of those ‘rare instances’
or consisted of ‘extreme facts’ that would constitutionally mandate recusal.” Id. (citing
Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2265, 2267 (2009)). The Magistrate Judge
further noted that the South Carolina Supreme Court unanimously agreed that the administrative
order was proper, and that Chief Justice Toal’s recusal apparently would not have affected the
result of Petitioner’s appeal. Id.
This court agrees with the Magistrate Judge and finds that Chief Justice Toal’s
participation in Petitioner’s case did not “pose[] such a risk of actual bias or prejudgment that [it]
must be forbidden if the guarantee of due process is to be adequately implemented.” Caperton,
129 S. Ct. at 2263 (quotation omitted). Although Petitioner argues that the Chief Justice acted as
“a judge in [her] own case” and “as a judge of her own conduct,” such a characterization is not
accurate. Rather, the Chief Justice was being asked to reconsider her earlier position regarding
matters of legal interpretation. Although Chief Justice Toal was required to construe the
authority of the chief justice under the South Carolina Constitution, this is not the sort of

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“personal interest” in the outcome that the Supreme Court has found to be unconstitutional.
Furthermore, even assuming that Chief Justice Toal’s participation in Petitioner’s case
was improper, habeas relief would not be available in this situation. Contrary to Petitioner’s
assertion, the Supreme Court has never “explicitly ruled that prejudice is presumed when a judge
who should be disqualified from sitting on a case nevertheless participates in the ruling.” ECF
No. 29 at 7. The first case cited by Petitioner, Murichson, involved a trial judge who presided
over a contempt hearing when he should have recused himself. See Murichson, 349 U.S. at 134136. The other case cited by Petitioner, Caperton, involved a 3-2 decision by a state supreme
court where the interested justice was in the majority. See Caperton, 129 S. Ct. at 2256.
However, the Supreme Court has never considered whether participation in a ruling by a judge
who should be disqualified necessarily taints the ruling if that judge’s vote is not outcomedeterminative.4 In the absence of clearly established federal law, as stated by the Supreme
Court, habeas relief may not be granted.
E.

Fourth Amendment Claims
Petitioner argues that the South Carolina Supreme Court unreasonably found that his

Fourth Amendment right to be free from unreasonable searches and seizures was not violated by
various police actions. Petitioner recognizes that “where the State has provided an opportunity
for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or

4

See, e.g., Caperton, 129 S. Ct. at 2269-70 (Roberts, C.J., dissenting) (noting that,
among the unanswered questions to be answered by later courts, was the question: “Must
the judge’s vote be outcome determinative in order for his non-recusal to constitute a due
process violation?”).
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seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976). Accordingly,
Plaintiff argues that the participation of Chief Justice Toal denied him a full and fair opportunity
to litigate his Fourth Amendment claims. For the reasons explained above, the court rejects this
argument. Plaintiff further argues that the state court’s “willful refusal to apply the correct and
controlling legal standard” deprived him of a full and fair opportunity to litigate his Fourth
Amendment claims. ECF No. 29 at 8. If a habeas court finds that a petitioner had a procedural
mechanism available to raise Fourth Amendment claims in state court and that this opportunity
was not impaired, it need not inquire further into the merits of these claims. Doleman v. Muncy,
579 F.2d 1258, 1265 (4th Cir. 1978). In this case, Petitioner, represented by skilled counsel,
raised his Fourth Amendment claims by motion in the trial court, had a suppression hearing, and
ultimately had these claims resolved by published opinion of the South Carolina Supreme Court.
This court is satisfied that Petitioner had a full and fair opportunity to present his claims, and
will not consider the merits of these claims further.
F.

Factual Findings
Petitioner objects that “the Magistrate Judge in her summary of evidence simply

adopt[ed] the factual recitation from the South Carolina Supreme Court’s opinion and fail[ed] to
consider material exculpatory evidence.”5 ECF No. 29 at 1. Petitioner lists various facts in this
recitation that he asserts are contradicted by the trial record and various allegedly exculpatory
facts presented at trial that are not mentioned. Id. at 1-3. However, none of these discrepancies
is relevant to this court’s resolution of Petitioner’s claims. Furthermore, Petitioner has not
alleged that the jury’s verdict or the South Carolina Supreme Court’s opinion were “based on an

5

This court has cited the same factual recitation as background.
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unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. §
2254(d)(2). Accordingly, this objection is without merit.
IV. CONCLUSION
The court has carefully reviewed the record and concurs in the recommendation of the
Magistrate Judge. Defendant’s motion for summary judgment is granted and the case dismissed.
V. CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases, as effective December 1, 2009,
provides that the district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A prisoner
satisfies this standard by demonstrating that reasonable jurists would find that any assessment of
the constitutional claims by the district court is debatable or wrong and that any dispositive
procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court concludes that
Petitioner has not made the requisite showing. Accordingly, the court denies a certificate of
appealability.
IT IS SO ORDERED.

s/ Margaret B. Seymour
Chief United States District Judge
Columbia, South Carolina
March 19, 2012

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