JOHN D. ARNOLD, Petitioner-Appellant,

v.

PARKER EVATT, Commissioner, South Carolina Department of Corrections

OPINION

RUSSELL, Circuit Judge:

In the early morning hours of April 12, 1978, cousins John Arnold and John Plath, who were in their early twenties, along with their respective eleven-year-old and seventeen-year-old girlfriends, Carol Ullman and Cindy Sheets, borrowed a friend's car and went looking for wild mushrooms.

During their search they encountered farm worker Betty Gardner as she walked along the side of the road. Gardner hitchhiked a ride with the two couples, who took her to her brother's home. Gardner then asked if the group would take her to work, but they refused and drove off. However, testimony indicated Arnold suggested they go back and kill Gardner because he"didn't like niggers." They then went back, picked Gardner up, and took her to a remote wooded area near a garbage dump.

When Gardner attempted to leave, Arnold told her that she was not going anywhere, kicked her in the side, and knocked her down. Gardner was alternately sexually assaulted, urinated on, stomped, beaten with a belt, hit with a jagged bottle, stabbed with a knife, and choked with a garden hose. All four persons at one time or another participated in physically assaulting Gardner.

Testimony also indicated Arnold dragged Gardner into the woods to complete her murder, which he did by strangling her with the garden hose, getting leverage by putting his foot on her neck. Arnold then carved "KKK" into Gardner's body in an attempt to mislead law enforcement. As it turned out, Gardner's body was not found until Sheets' involvement came to light and she provided law enforcement with the location of Gardner's decomposed remains.

Arnold and Plath were indicted in the Beaufort County Court of General Sessions on charges of murder and kidnapping. After a jury trial, they were convicted on February 6, 1979. Both defendants were sentenced to death by electrocution.

Arnold appealed to the South Carolina Supreme Court which affirmed his conviction, but remanded the case for resentencing because of improper prosecutorial argument.

At the resentencing trial, the new jury found Arnold guilty of committing the murder while in the commission of kidnapping and recommended the death penalty. In January 1984, the South Carolina Supreme Court affirmed Arnold's death sentence.

The United States Supreme Court subsequently denied Arnold's petition for writ of certiorari, with two Justices dissenting based on Arnold's Sixth Amendment claim regarding the jury view of the crime scene.

Arnold filed an application for post-conviction relief in the Beaufort County Court of Common Pleas in November, 1984. An evidentiary hearing resulted in an order denying his application. Arnold then filed a petition for writ of certiorari to the South Carolina Supreme Court, which the court denied.

In 1988, however, the United States Supreme Court granted a writ of certiorari and remanded the case to the Beaufort County Court of Common Pleas for reconsideration on the issue of the trial court's implied malice instruction.

On remand, the court denied the application for post-conviction relief, holding that the malice instruction did not include an impermissible presumption, or alternatively, any error was harmless. Arnold made a number of subsequent motions to amend his application which, following another hearing in 1990, the court denied as meritless or untimely. Arnold appealed the denial of post-conviction relief to the South Carolina Supreme Court. The court concluded that under United States Supreme Court precedent the implied malice instruction was harmless error.

The United States Supreme Court denied another petition for writ of certiorari in 1993.