Earl Matthews, Jr.
November 7, 1997 (SC)
The Supreme Court of South Carolina certainly
wasted no time in scheduling a date to execute Earl Matthews, Jr.
Only days after the United States Supreme Court refused to hear
Earl's final appeal, he was given an execution date. The decision to
execute Earl was handed down on Tuesday October 14, 1997. The
execution date has been set for less than a month later on November
Earl, who is now 32, was convicted and sentenced
to death for the 1985 killing of a sixteen year old girl during a
botched robbery attempt. Earl was only 20 years old at the time the
crime occurred and had no criminal record to speak of. Earl has been
on death row for the past 12 years and during this time has proven
himself to be a model prisoner. It is on these grounds that Earl's
attorney will ask Governor David Beasley to grant clemency.
If Earl is executed, he will be the second person
murdered by the state of South Carolina this year and the thirteenth
person to be executed since 1985 when South Carolina reinstated the
death penalty. South Carolina allows the convicted inmate to choose
which form of death they would prefer, Earl has chosen to die by
lethal injection as opposed to being electrocuted.
Many questions have been raised as to the
impartialness of the trial judge and as to the instructions given to
the jury during the sentencing phase of the trial. These questions
need to be answered. It is time for the citizens of South Carolina
to unite and stop another exectution from taking place in their
105 F.3d 907
Earl Matthews, Jr., Petitioner-Appellant,
Parker Evatt, Commissioner, South Carolina Department of Corrections;
T. Travis Medlock, Attorney General, State of South Carolina,
Docket number: 96-5
Federal Circuits, 4th Cir.
January 28, 1997
Before WIDENER and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
Affirmed by published opinion. Judge HAMILTON wrote
the opinion, in which Judge WIDENER and Senior Judge PHILLIPS joined.
HAMILTON, Circuit Judge:
Petitioner, Earl Matthews, Jr., appeals the
district court's denial of his petition for writ of habeas corpus, see
28 U.S.C. 2254. Finding no error, we affirm.
On the evening of October 29, 1984, Lucia Aimar and
her boyfriend, Eric Burn, purchased their dinner at a drive-through
restaurant in Charleston, South Carolina. While the couple was parked
in a nearby parking lot eating their dinner, Matthews approached the
driver's side of the car where Burn was seated. Matthews pulled out a
handgun, pointed it at Burn's head, and demanded money. While Burn was
searching for money, Matthews struck Burn across the face, breaking
his nose. After Burn found five dollars in Aimar's purse, Burn handed
the purse to Matthews.
Next, Matthews walked around to the passenger's
side of the car where Aimar was seated. Aimar locked the door and
tried to roll up the window. Matthews prevented Aimar from rolling up
the window and asked for a ride. When Burn refused, Matthews shot
Aimar in the head and shot Burn in the chest. As a result of her
injuries, Aimar died. Burn recovered from his chest wound and later
testified at Matthews' trial.
Following a jury trial, Matthews was convicted of
the capital murder of Aimar, armed robbery, attempted armed robbery,
assault and battery with intent to kill, and unlawful possession of a
On the murder count, on the recommendation of the
jury, Matthews was sentenced to death. For the remaining offenses,
Matthews received consecutive sentences totaling sixty-six years.
On direct appeal, the Supreme Court of South
Carolina affirmed Matthews' convictions, but vacated his death
sentence because of a Skipper violation,
and remanded the case for a new sentencing trial. See State v.
Matthews, 291 S.C. 339, 353 S.E.2d 444, 450 (1986). On remand, the
jury again recommended a sentence of death, and Matthews was sentenced
accordingly. This sentence was affirmed by the Supreme Court of South
Carolina. See State v. Matthews, 296 S.C. 379, 373 S.E.2d 587, 596
(1988). Matthews then petitioned the Supreme Court of the United
States for a writ of certiorari. The Supreme Court of the United
States denied the petition. See Matthews v. South Carolina,
489 U.S. 1091 , 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989).
Matthews then filed a state application for post-conviction
relief, which the state trial court denied on August 24, 1992. The
Supreme Court of South Carolina denied discretionary review, and, on
May 31, 1994, the Supreme Court of the United States denied Matthews'
second petition for writ of certiorari. See Matthews v. South
511 U.S. 1138 , 114 S.Ct. 2155, 128 L.Ed.2d 881 (1994).
On August 30, 1994, Matthews filed a petition for
writ of habeas corpus in the United States District Court for the
District of South Carolina. The case was assigned to a magistrate
judge, who, in a 124-page report and recommendation, recommended to
the district court that it deny the petition. After de novo review of
the record, the district court adopted the magistrate judge's report
and recommendation and denied the petition. Matthews noted a timely
On appeal, Matthews raises numerous assignments of
error. We shall address each of these assignments of error in turn.
* Matthews argues that the Ninth Circuit Solicitor,
Charles Condon, who is now the Attorney General of South Carolina,
utilized his discretion in seeking the death penalty in this case in a
racially discriminatory manner. In support of his contention that Mr.
Condon sought the death penalty against him in a discriminatory manner,
Matthews relies on statistical evidence and numerous alleged racist
acts committed by Mr. Condon, both in his personal and professional
life. In response, the State argues that the claim is procedurally
barred because it was never presented in state court, and, in the
alternative, is without merit. We agree with the State that this claim
is procedurally barred and, therefore, decline to address the merits.
See Karsten v. Kaiser Foundation Health Plan, 36 F.3d 8, 11 (4th
Cir.1994) (per curiam) (noting that alternative holdings should be
In the interest of giving state courts the first
opportunity to consider alleged constitutional errors occurring in a
defendant's state trial and sentencing, a § 2254 petitioner is
required to "exhaust" all state court remedies before a federal
district court can entertain his claims. 28 U.S.C. 2254(b) & (c); see
also Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d
379 (1982) (noting that "[t]he exhaustion doctrine is principally
designed to protect the state courts' role in the enforcement of
federal law and prevent disruption of state court proceedings"). Thus,
a federal habeas court may consider only those issues which have been
"fairly presented" to the state courts. Picard v. Connor, 404 U.S.
270, 275-78, 92 S.Ct. 509, 512-14, 30 L.Ed.2d 438 (1971); see also
Townes v. Murray, 68 F.3d 840, 846 (4th Cir.1995), cert. denied, ---
U.S. ----, 116 S.Ct. 831, 133 L.Ed.2d 830 (1996). A claim is fairly
presented when the petitioner presented to the state courts the " 'substance'
of his federal habeas corpus claim." Anderson v. Harless, 459 U.S. 4,
6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam) (quoting
Picard, 404 U.S. at 278, 92 S.Ct. at 513). " 'The ground relied upon
must be presented face-up and squarely; the federal question must be
plainly defined. Oblique references which hint that a theory may be
lurking in the woodwork will not' " suffice. Mallory v. Smith, 27 F.3d
991, 995 (4th Cir.) (quoting Martens v. Shannon, 836 F.2d 715, 717
(1st Cir.1988)), cert. denied,
513 U.S. 1047 , 115 S.Ct. 644, 130 L.Ed.2d 549 (1994). In
other words, fair presentation contemplates that "both the operative
facts and the 'controlling legal principles' " must be presented to
the state court. Verdin v. O'Leary, 972 F.2d 1467, 1474 (7th Cir.1992)
(quoting Picard, 404 U.S. at 277, 92 S.Ct. at 513); see also Joubert
v. Hopkins, 75 F.3d 1232, 1240 (8th Cir.) ("A claim has been fairly
presented when a petitioner has properly raised the 'same factual
grounds and legal theories' in the state courts which he is attempting
to raise in his federal habeas petition."), cert. denied, --- U.S.
----, 116 S.Ct. 2574, 135 L.Ed.2d 1090 (1996).
To satisfy the exhaustion requirement, a habeas
petitioner must fairly present his claim to the state's highest court.
See Spencer v. Murray, 18 F.3d 237, 239 (4th Cir.1994) (denying
certain claims on exhaustion principles where claims were not raised
on direct appeal to the Virginia Supreme Court); see also Levine v.
Comm'r of Correctional Serv., 44 F.3d 121, 124 (2d Cir.1995); Story v.
Kindt, 26 F.3d 402, 405 (3d Cir.), cert. denied,
513 U.S. 1024 , 115 S.Ct. 593, 130 L.Ed.2d 506 (1994);
James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied,
513 U.S. 935 , 115 S.Ct. 333, 130 L.Ed.2d 291 (1994);
Deters v. Collins, 985 F.2d 789, 795 (5th Cir.1993); Manning v.
Alexander, 912 F.2d 878, 881 (6th Cir.1990). The burden of proving
that a claim has been exhausted lies with the petitioner. Mallory, 27
F.3d at 994.
The exhaustion requirement, though not
jurisdictional, Granberry v. Greer, 481 U.S. 129, 131, 107 S.Ct. 1671,
1673-74, 95 L.Ed.2d 119 (1987), is strictly enforced, Rose, 455 U.S.
at 522, 102 S.Ct. at 1205. Consequently, when a petition includes both
exhausted and unexhausted claims, the district court must dismiss the
entire petition. See id. ("[W]e hold that a district court must
dismiss habeas petitions containing both unexhausted and exhausted
claims."). However, the exhaustion requirement for claims not fairly
presented to the state's highest court is technically met when
exhaustion is unconditionally waived by the state, Sweezy v. Garrison,
694 F.2d 331, 331 (4th Cir.1982) (per curiam), cert. denied,
461 U.S. 908 , 103 S.Ct. 1882, 76 L.Ed.2d 812 (1983), or
when a state procedural rule would bar consideration if the claim was
later presented to the state court, Coleman v. Thompson, 501 U.S. 722,
735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991); Teague v.
Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 1068-69, 103 L.Ed.2d 334
(1989); see also George v. Angelone,
100 F.3d 353, 363 (4th Cir.1996) ("A claim that has not
been presented to the highest state court nevertheless may be treated
as exhausted if it is clear that the claim would be procedurally
defaulted under state law if the petitioner attempted to raise it at
this juncture."); Bassette v. Thompson, 915 F.2d 932, 937 (4th
Cir.1990) (If "it is clear that the state law would bar state review,
exhaustion is not required, and federal review is precluded."), cert.
499 U.S. 982 , 111 S.Ct. 1639, 113 L.Ed.2d 734 (1991).
The state procedural bar rule barring federal review must be
independent and adequate to support the state court judgment. See
Coleman, 501 U.S. at 729, 111 S.Ct. at 2553 ("This Court will not
review a question of federal law decided by a state court if the
decision of that court rests on a state law ground that is independent
of the federal question and adequate to support the judgment."). A
state procedural bar rule is not adequate unless it is "consistently
or regularly applied." Johnson v. Mississippi, 486 U.S. 578, 589, 108
S.Ct. 1981, 1988, 100 L.Ed.2d 575 (1988).
The district court found that although Matthews had
not specifically raised the claim that the Ninth Circuit Solicitor
utilized his discretion in seeking the death penalty in a racially
discriminatory manner, the claim was nonetheless exhausted for federal
habeas corpus purposes. Apparently, the district court reasoned that
the exhaustion requirement was satisfied when Matthews raised this
issue in a pre-trial motion
and the state court denied the motion.
For two reasons, we believe the district court
erred when it concluded this claim was exhausted for federal habeas
corpus purposes. First, the claim was not exhausted because it was not
presented to the Supreme Court of South Carolina. In the absence of
such an attempt by Matthews, the claim is unexhausted. See Spencer, 18
F.3d at 239; see also Levine, 44 F.3d at 124; Story, 26 F.3d at 405;
James, 24 F.3d at 24; Deters, 985 F.2d at 795; Manning, 912 F.2d at
881. Second, Matthews' claim--that the Ninth Circuit Solicitor
utilized his discretion in seeking the death penalty in a racially
discriminatory manner--was not "fairly presented" in state court.
Matthews' pre-trial motion contained a very broad assertion that the
South Carolina Death Penalty Statute violated the Equal Protection
Clause because the statute conferred too much discretion in seeking
the penalty on the prosecutor. That claim is clearly not the "substance"
of the claim presently asserted by Matthews in federal court--that the
Ninth Circuit Solicitor's decision to seek the death penalty in this
case was racially motivated. Indeed, the record is bereft of evidence
that "both the operative facts and the 'controlling legal principles'
" of Matthews' claim raised here were presented to the state court.
Verdin, 972 F.2d at 1474 (quoting Picard, 404 U.S. at 277, 92 S.Ct. at
Matthews argues that this claim was nonetheless
exhausted for federal habeas corpus purposes because the Supreme Court
of South Carolina reviewed his case in favorem vitae (in favor of life).
Under in favorem vitae review, the Supreme Court of South Carolina
reviews " 'the entire record for legal error, and assume[s] error when
unobjected-to but technically improper arguments, evidence, jury
charges, etc. are asserted by the defendant on appeal in a demand for
reversal or a new trial.' " Kornahrens v. Evatt, 66 F.3d 1350, 1362
(4th Cir.1995) (quoting State v. Torrence, 305 S.C. 45, 406 S.E.2d
315, 324 (1991) (Toal, J., concurring for a majority of the court)),
cert. denied, --- U.S. ----, 116 S.Ct. 1575, 134 L.Ed.2d 673 (1996).
"Under in favorem vitae review, 'the appellate court searches the
record for error without regard to whether an objection has preserved
it.' " Id. (quoting Torrence, 406 S.E.2d at 326 (Toal, J., concurring
for a majority of the court)). As Matthews' argument goes, although
this argument was not raised directly to the Supreme Court of South
Carolina, the claim was raised prior to trial, and, therefore, the
Supreme Court of South Carolina reviewed this claim on direct appeal
when it conducted its in favorem vitae review.
In Kornahrens, we rejected the petitioner's
contention that in favorem vitae review preserved his contentions that
certain jury instructions at trial and sentencing were erroneous for
purposes of federal habeas corpus review. 66 F.3d at 1362-63. In
reaching this conclusion, we reasoned:
Because our role is limited to reviewing state-court
judgments, federal review is inappropriate if a prisoner failed to
raise his claim and have it reviewed by a state court. Even with in
favorem vitae review, unless the prisoner raises the specific
objections before the state court, we cannot determine whether the
state court has properly applied federal constitutional principles, or
for that matter, whether the state court has even considered these
issues at all. In short, we have no state court judgment to review.
Id. at 1362.
The reasoning of Kornahrens is applicable here. The
gist of Kornahrens is that in favorem vitae review does not supply the
necessary exhaustion for claims not raised on direct appeal to the
Supreme Court of South Carolina. Therefore, because Matthews' claim
that the Ninth Circuit Solicitor utilized his discretion in seeking
the death penalty in a racially discriminatory manner was not raised
on direct appeal, the Supreme Court of South Carolina's in favorem
vitae review of the record of Matthews' sentencing retrial did not
exhaust this claim for purposes of federal habeas corpus review.
Matthews also argues that this claim was exhausted
for federal habeas corpus purposes because the Supreme Court of South
Carolina considered this claim pursuant to its statutory duty to
determine "[w]hether the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary factor." S.C.
CODE ANN. § 16-3-25(C)(1).
The issue of whether a claim not raised on direct
appeal can be exhausted for federal habeas corpus purposes if the
claim falls within a class of claims for which the state supreme court
is statutorily required to review is a question unresolved in this
circuit. See Bennett v. Angelone, 92 F.3d 1336, 1345 & n. 6. (4th
Cir.1996) (declining to address petitioner's contention that his
claims challenging the prosecutor's sentencing-phase arguments and the
constitutionality of Virginia "vileness" aggravating circumstance were
exhausted even though not raised on direct appeal to the Virginia
Supreme Court because the court necessarily reviewed these claims as
part of its mandatory review). At least one circuit has held that a
claim not raised on direct appeal can be exhausted for federal habeas
corpus purposes if the claim falls within a class of claims for which
the state supreme court was statutorily required to review. See Beam
v. Paskett, 3 F.3d 1301, 1306-07 (9th Cir.1993), cert. denied,
511 U.S. 1060 , 114 S.Ct. 1631, 128 L.Ed.2d 354 (1994).
In Beam, the petitioner failed to raise his claim that the sentencing
judge's application of the "continuing threat" aggravating
circumstance to him was unconstitutional on direct appeal to the Idaho
Supreme Court. Id. at 1306. Beam's claim was based on his contention
that the sentencing judge's reliance on Beam's past nonviolent,
consensual or involuntary sexual conduct rendered the application of
the "continuing threat" aggravating circumstance to him
unconstitutional. Even though this claim was not raised before the
Idaho Supreme Court, the Ninth Circuit held the claim was exhausted
for federal habeas corpus purposes because the claim fell within a
class of claims for which the Idaho Supreme Court was required to
review when examining Beam's death sentence. Id. at 1306-07. Under
Idaho law, the Idaho Supreme Court was required to determine if Beam's
death sentence was "imposed under the influence of passion, prejudice,
or any other arbitrary factor." Id. at 1306. Under this review, Idaho
law required the court to consider certain types of errors occurring
at sentencing that were not raised or objected to at trial. Id. The
Ninth Circuit interpreted the mandatory review conducted by the Idaho
Supreme Court in Beam's case to include a review of the
constitutionality of the sentencing judge's application of the "continuing
threat" aggravating circumstance to Beam. Id. at 1307. The court
reasoned that the sentencing judge's reliance upon Beam's past non-violent,
consensual or involuntary sexual conduct in violation of the Eighth
Amendment would "clearly constitute reliance on an arbitrary factor."
Id. Accordingly, the court held that, notwithstanding Beam's failure
to raise this claim to the Idaho Supreme Court, the claim was
exhausted for purposes of federal habeas corpus review. Id. In Nave v.
Delo, the Eighth Circuit addressed a similar claim to that raised in
Beam. 62 F.3d 1024, 1038-39 (8th Cir.1995), cert. denied, --- U.S.
----, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996). In Nave, the court held
that a jury instruction on mitigating circumstances was not exhausted
for federal habeas corpus purposes notwithstanding the existence of a
state statute that required the state supreme court to review death
sentences to determine if they were "imposed under the influence of
passion, prejudice, or any other arbitrary factor." Id. at 1039. The
court reached this conclusion because, according to the court,
Missouri law, unlike Idaho law controlling in Beam, did not require
the Missouri Supreme Court to review Nave's death sentence for "instructional
or constitutional error." Id. The court also rejected Nave's
contention that the mitigating circumstance instruction was an "arbitrary
factor." Id. According to the court, the phrase "arbitrary factor" was
"a catch-all that [was] intended to describe possible improper bases
for the imposition of the death penalty. This inquiry requires the
court to ensure that the aggravating factors relied upon by the jury
constitute permissible grounds under state law for imposing the death
penalty." Id. The court went on to conclude that Missouri law did not
require the Missouri Supreme Court "to review death penalty cases sua
sponte for constitutional or instructional errors not specified in the
direct appeal." Id. Matthews asks us to hold that his claim that the
Ninth Circuit Solicitor utilized his discretion in seeking the death
penalty in a racially discriminatory manner was exhausted for federal
habeas corpus purposes because the Supreme Court of South Carolina
necessarily reviewed this claim when it reviewed his death sentence
pursuant to its mandatory review under § 16-3-25(C)(1).
For purposes of our discussion, we will assume
without deciding that a claim not raised on direct appeal can be
exhausted for federal habeas corpus purposes if the claim falls within
a class of claims for which the state supreme court is statutorily
required to review.
This assumption, however, is of no help to Matthews.
The Supreme Court of South Carolina reviews a death
sentence under § 16-3-25(C)(1) to determine "[w]hether the sentence of
death was imposed under the influence of passion, prejudice, or any
other arbitrary factor." The review conducted by the Supreme Court of
South Carolina under this mandate is for claims falling within the
class of claims covered by this statutory provision. It follows that,
at a minimum, only those claims falling within the class of claims
covered by § 16-3-25(C)(1) that appear in the trial record are
reviewed by the Supreme Court of South Carolina and, consequently,
exhausted for federal habeas corpus purposes. Cf. Beam, 3 F.3d at
1306-07 (claim that the sentencing judge erroneously applied the "continuing
threat" aggravating circumstance to Beam discernible from the record
before the Idaho Supreme Court). In short, if a claim allegedly
falling within the scope of § 16-3-25(C)(1) does not appear in the
trial record, there is nothing for the Supreme Court of South Carolina
to review under that section.
Matthews' claim that the Ninth Circuit Solicitor
utilized his discretion in seeking the death penalty in a racially
discriminatory manner did not appear in the record before the Supreme
Court of South Carolina because the claim was never raised in state
court. Indeed, there were no facts developed in the trial record that
suggested the Ninth Circuit Solicitor's decision to seek the death
penalty was racially motivated. Therefore, the claim could not have
been reviewed by the Supreme Court of South Carolina through its
mandatory review under § 16-3-25(C)(1).
Because Matthews' claim is not exhausted for
purposes of federal habeas corpus review, Matthews' habeas corpus
petition should be dismissed unless the state unconditionally waived
exhaustion, see Sweezy, 694 F.2d at 331, or a South Carolina
procedural rule would bar consideration if the claim was later
presented to the South Carolina state courts, see Coleman, 501 U.S. at
735 n. 1, 111 S.Ct. at 2557 n. 1; Teague, 489 U.S. at 297-98, 109 S.Ct.
at 1068-69; George, 100 F.3d at 363; Bassette, 915 F.2d at 937. The
State has not unconditionally waived exhaustion, so we are left with
the question of whether a South Carolina procedural rule would bar
consideration of this claim if it were presented to the Supreme Court
of South Carolina.
S.C. CODE ANN. § 17-27-90 provides in relevant part:
All grounds for relief available to an applicant
under this chapter must be raised in his original, supplemental or
amended application. Any ground finally adjudicated or not so raised
... may not be the basis for a subsequent application, unless the
court finds a ground for relief asserted which for sufficient reason
was not asserted or was inadequately raised in the original,
supplemental or amended application.
According to the Supreme Court of South Carolina, §
17-27-90 "forbids a successive PCR application unless an applicant can
point to a 'sufficient reason' why the new grounds for relief he
asserts were not raised, or were not raised properly" in the first
post-conviction relief application (PCR). Aice v. State, 305 S.C. 448,
409 S.E.2d 392, 394 (1991). In other words, the applicant must point
to facts and circumstances that demonstrate "why the new grounds were
not and could not have been raised" in the first PCR application.
Arnold v. State, 309 S.C. 157, 420 S.E.2d 834, 843 (1992), cert.
507 U.S. 927 , 113 S.Ct. 1302, 122 L.Ed.2d 691 (1993);
see also Hunter v. State, 271 S.C. 48, 244 S.E.2d 530, 533 (1978) (successive
application barred where applicant was aware of claim at the time of
the filing of prior applications but did not raise it); cf. Aice, 409
S.E.2d at 394 ("[T]he contention that prior PCR counsel was
ineffective is not per se a 'sufficient reason' allowing for a
successive application under § 17-27-90"); Land v. State, 274 S.C.
243, 262 S.E.2d 735, 737 (1980) (applicant's conclusory assertion that
PCR counsel was "inadequate" held not a "sufficient reason" warranting
a successive application).
The Supreme Court of South Carolina, however, has
entertained successive applications in cases in which the successive
claims potentially could have been raised in the first PCR application.
These cases involve very rare procedural circumstances. For example,
the Supreme Court of South Carolina permitted a successive application
where the applicant did not have counsel to assist in the preparation
of his first PCR application. See Case v. State, 277 S.C. 474, 289 S.E.2d
413, 413-14 (1982) (court permitted a successive application where the
applicant's first PCR application was filed without the benefit of
counsel and was dismissed without a hearing). In another case, the
Supreme Court of South Carolina permitted a successive application
where the applicant did not have PCR counsel that differed from his
trial counsel. See Carter v. State, 293 S.C. 528, 362 S.E.2d 20, 20-21
(1987) (court permitted a successive application where the applicant
raised the issue of ineffective assistance of trial counsel in his
successive application and trial counsel represented the applicant
during his first PCR application). Finally, the Supreme Court of South
Carolina permitted a successive application where the applicant, due
to "so many procedural irregularities," did not have direct review of
a claim he brought in his first and second PCR applications.
Washington v. State, --- S.C. ----, 478 S.E.2d 833, 834-35 (1996).
The South Carolina case law discussed above
demonstrates that, absent sufficient reason for not raising a claim in
a first PCR application or very rare procedural circumstances, §
17-27-90 bars the claim in a successive application. This
interpretation is consistent with the Supreme Court of South
Carolina's commitment to ensure that all defendants have a full and
fair opportunity to present claims in one PCR application, thereby
preventing an applicant from receiving more than "one bite at the
apple as it were." Gamble v. State, 298 S.C. 176, 379 S.E.2d 118, 119
(1989). In Case, Carter, and Washington, the applicant never received
a full bite at the apple because the applicant was essentially
prevented--through no fault of his own--from fairly presenting his
claims and/or having his claims adjudicated in the initial PCR
application. In contrast, the applicants in Arnold and Hunter had a
full bite at the apple. And the applicants in Aice and Land were
presumed to have a full bite at the apple absent a specific showing of
facts and circumstances that PCR counsel was ineffective.
In this case, Matthews had a full bite at the apple.
During his state PCR proceeding, he enjoyed the benefit of competent
counsel, a hearing, and a full and fair adjudication of his claims. In
this court, he has not demonstrated a "sufficient reason" why his
claim that the Ninth Circuit Solicitor utilized his discretion in
seeking the death penalty in this case in a racially discriminatory
manner was not raised in his state PCR application. In addition,
Matthews has failed to demonstrate that his case is on the same
procedural playing field as Case, Carter, or Washington. Accordingly,
we are convinced beyond doubt that if this claim was presented to the
Supreme Court of South Carolina, the claim would be barred as
successive under § 17-27-90.
We may excuse Matthews' procedural default if he
"can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that
failure to consider the claim[ ] will result in a fundamental
miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565.
The "fundamental miscarriage of justice" exception is available to
those who are actually innocent. Murray v. Carrier, 477 U.S. 478,
495-96, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1986). The exception
is also available to those who are actually innocent of the death
penalty. Sawyer v. Whitley, 505 U.S. 333, 350, 112 S.Ct. 2514,
2524-25, 120 L.Ed.2d 269 (1992). To be actually innocent of the death
penalty, the petitioner must prove by clear and convincing evidence
that but for the constitutional error, no reasonable juror would have
found the petitioner eligible for the death penalty. Id. The record is
clear that Matthews has not established cause for the default or that
a fundamental miscarriage of justice would result by our failure to
consider his claim. Therefore, we cannot address the merits of his
claim that the Ninth Circuit Solicitor utilized his discretion in
seeking the death penalty in a racially discriminatory manner.
Matthews argues that the prosecutor's use of
peremptory challenges to exclude black veniremen from the sentencing
jury at his sentencing retrial violated his equal protection rights.
The Supreme Court has held that it is "impermissible for a prosecutor
to use his challenges to exclude blacks from the jury 'for reasons
wholly unrelated to the outcome of the particular case on trial' or to
deny blacks 'the same right and opportunity to participate in the
administration of justice enjoyed by the white population.' " Batson
v. Kentucky, 476 U.S. 79, 91, 106 S.Ct. 1712, 1720, 90 L.Ed.2d 69
(1986) (quoting Swain v. Alabama, 380 U.S. 202, 224, 85 S.Ct. 824,
838, 13 L.Ed.2d 759 (1965)).
When a Batson challenge is made, the trial court
must conduct a three-part inquiry. First, the opponent of the
challenge has to make out a prima facie case of discrimination.
Hernandez v. New York, 500 U.S. 352, 358, 111 S.Ct. 1859, 1865-66, 114
L.Ed.2d 395 (1991) (plurality opinion); Batson, 476 U.S. at 96, 106
S.Ct. at 1722-23.
Second, if a prima facie case of discrimination is made, the burden
then shifts to the proponent of the challenge to come forward with a
neutral explanation for the challenge. Hernandez, 500 U.S. at 358-59,
111 S.Ct. at 1865-66; Batson, 476 U.S. at 97, 106 S.Ct. at 1723. The
explanation need not be "persuasive, or even plausible," as long as it
is neutral. Purkett v. Elem, 514 U.S. 765, ----, 115 S.Ct. 1769, 1771,
131 L.Ed.2d 834 (1995). In other words, unless a discriminatory intent
is inherent in the explanation offered to defend a peremptory
challenge, " 'the reason offered will be deemed race neutral.' " Id. (quoting
Hernandez, 500 U.S. at 360, 111 S.Ct. at 1866). Third, if parts one
and two are satisfied, the trial court must then decide whether the
opponent of the strike has proved "purposeful discrimination." Id. at
----, 115 S.Ct. at 1771. The ultimate burden always rests with the
opponent of the challenge to demonstrate purposeful discrimination.
Hernandez, 500 U.S. at 363-64, 111 S.Ct. at 1868-69. Because the
findings of the trial court turn largely on credibility determinations,
they are given great deference. Id. at 364-65, 111 S.Ct. at 1868-69.
At Matthews' sentencing retrial, the prosecutor
used all of his peremptory challenges to exclude five blacks, Carl
Ellis, Nellie Frazier, Joe Ann Hunt, Patricia Middleton, and Rebecca
McDonald. The prosecutor's challenges resulted in a jury of seven
whites and five blacks. Matthews' counsel then made a motion for
mistrial under the authority of Batson. The sentencing judge
questioned whether a prima facie case of discrimination was made in
view of the fact that five blacks were on the jury,
but nonetheless required the prosecutor to state his reasons for the
The prosecutor then explained his reasons for the
challenges. Ellis was struck because: (1) he "indicated it really
wasn't his decision [to impose the death penalty]; that he would let
the Lord make that decision and whatever the Lord told him to do he
would do" and (2) he "had a criminal record." Transcript of Sentencing
Retrial at 524-25. Frazier was struck because she was the mother of a
State (South Carolina) Law Enforcement Division agent who was a good
friend of a prospective state witness, detective Chevy Harris. Joe Ann
Hunt was struck because she had "at least fifty fraudulent check
convictions." Id. at 526. Middleton was struck because she equivocated
repeatedly about her ability to impose the death penalty, stating once
that she could not impose the death penalty under any circumstances
and later stating that she thought she could. Finally, McDonald was
struck because she lived on the same street as Matthews and knew some
of his family, including Matthews' grandmother.
Matthews offered no rebuttal evidence that the
prosecutor's justifications for exercising the challenges were a
pretext for discrimination. Thereafter, the sentencing judge found
that the prosecutor's explanation "justif[ied] the striking" of the
five black veniremen. Id. at 528.
Because the prosecutor offered a race-neutral
explanation in response to Matthews' objection, the preliminary issue
of whether Matthews established a prima facie case of discrimination
is moot. See Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866. As to the
prosecutor's reasons for the challenges, all of the reasons advanced
by the prosecutor were facially neutral--the reasons set forth by the
prosecutor are clearly unrelated to the race of the veniremen. Under
Purkett and Hernandez, that is all the law requires. Purkett, 514 U.S.
at ----, 115 S.Ct. at 1771; Hernandez, 500 U.S. at 359-60, 111 S.Ct.
at 1866-67. Moreover, there has been no showing that the reasons set
forth by the prosecutor were pretextual. Indeed, Matthews made no
attempt to show pretext at trial.
Matthews argues that similarly situated white
jurors were not struck by the prosecutor, and, therefore, the facially
neutral reasons set forth by the prosecutor were a pretext for
intentional discrimination. This argument must be rejected.
To begin with, Batson is not violated whenever two
veniremen of different races provide the same responses and one is
excused and the other is not. Burks v. Borg, 27 F.3d 1424, 1427 (9th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1122, 130 L.Ed.2d
1085 (1995). This is so because counsel must be entitled to make
credibility determinations in exercising peremptory challenges. Indeed,
counsel is entitled to take account of the
characteristics of the other prospective jurors against whom
peremptory challenges might be exercised; to reevaluate the mix of
jurors and the weight he gives to various characteristics as he begins
to exhaust his peremptory challenges; and to take into account tone,
demeanor, facial expression, emphasis--all those factors that make the
words uttered by the prospective juror convincing or not.
Id. at 1429.
In any event, the white jurors complained of by
Matthews were not similarly situated to the black jurors whom the
prosecutor challenged. As to Ellis and Hunt, the record is devoid of
evidence that any white juror seated had a criminal record. As to
Frazier, there is no evidence that any white juror had a member of
their immediate family who was friends with a prospective witness.
With respect to Middleton, Matthews argues that several white jurors
who also expressed some reservations about imposing the death penalty
were not struck. However, comparison of Middleton to these jurors is
inappropriate because to the extent that these white jurors expressed
doubts about imposition of the death penalty, their doubts were
unmistakably not as strong as Middleton's. Accordingly, Ellis, Hunt,
Frazier, and Middleton were not similarly situated to any of the white
jurors seated. Finally, Matthews argues that McDonald was similarly
situated with a white juror who was not struck, Athena Gazes, because
Gazes was the aunt of one of Matthews' counsel's partners. McDonald
and Gazes were not similarly situated for the obvious reason that
living on the same street of the defendant and being acquainted with
his family, as McDonald was, is dissimilar to being the aunt of one of
Matthews' counsel's partners. In summary, in the absence of any
evidence of pretext, there was simply no intentional discrimination in
the selection of the sentencing jury at Matthews' sentencing retrial.
Matthews contends that the district court erred
when it concluded that counsel provided effective assistance at his
sentencing retrial. According to Matthews, his counsel were
ineffective for failing: (1) to investigate and present evidence of
his brain damage due to exposure to lead and (2) to redact portions of
letters written by Matthews that were introduced into evidence.
The test for reviewing claims of ineffective
assistance of counsel is well established. First, the petitioner must
demonstrate counsel's performance fell below an objective standard of
reasonableness. Strickland v. Washington, 466 U.S. 668, 687-91, 104
S.Ct. 2052, 2064-67, 80 L.Ed.2d 674 (1984). In other words, the
petitioner must demonstrate counsel's performance was "deficient."
Griffin v. Warden, 970 F.2d 1355, 1357 (4th Cir.1992). " 'Deficient
performance' " is not merely below-average performance; rather, the
attorney's actions must fall below the wide range of professionally
competent performance. Id. Second, "[t]he defendant must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104
S.Ct. at 2068. "Because effectiveness of counsel is a mixed question
of law and fact, we owe no special deference to the finding of the
state court on the question." Griffin, 970 F.2d at 1357. Finally, we
must presume counsel's assistance was effective:
Judicial scrutiny of counsel's performance must be
highly deferential.... A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the
time. Because of the difficulties inherent in making the evaluation, a
court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citation
and internal quotes omitted).
* Matthews claims that because he lived in "one of
the most lead contaminated houses in the most lead contaminated
neighborhood[ ] in the most lead contaminated city in the United
States," Petitioner's Brief at 51-52, and showed various signs of
brain damage due to lead exposure,
his counsel at his sentencing retrial were constitutionally
ineffective for failing to investigate, develop, and present evidence
of his brain damage due to lead exposure. As Matthews' argument goes,
had his counsel (Michael O'Connell and Michael Scardato) presented
evidence of his brain damage due to lead exposure, the jury would have
found this to be a mitigating factor, resulting in a sentence of life
imprisonment. We disagree.
With respect to investigating mitigating evidence,
counsel's performance is deficient if he fails to make a reasonable
investigation for possible mitigating evidence. See Lambrix v.
Singletary, 72 F.3d 1500, 1504 (11th Cir.1996). In the context of
whether an attorney's investigation into matters that might aid his
client constitutes a deficient performance, the Supreme Court has said:
[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation. In
other words, counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel's
The reasonableness of counsel's actions may be
determined or substantially influenced by the defendant's own
statements or actions. Counsel's actions are usually based, quite
properly, on informed strategic choices made by the defendant and on
information supplied by the defendant. In particular, what
investigation decisions are reasonable depends critically upon such
information.... [W]hen a defendant has given counsel reason to believe
that pursuing certain investigations would be fruitless or even
harmful, counsel's failure to pursue those investigations may not
later be challenged as unreasonable.
Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066.
In this case, counsel for Matthews undertook
substantial efforts to find mitigating evidence, enlisting the aid of
two experts, a psychiatrist, Dr. John Outz, III, and a psychologist,
Dr. Gordon Kimbrell, interviewing numerous family members, and
reviewing all of Matthews' school and social service records, and
records of his earlier encounters with the law. Throughout the entire
investigation into mitigating evidence, counsel for Matthews were
never given information that Matthews suffered from brain damage due
to lead exposure.
At the sentencing retrial, Matthews' case in
mitigation focused on his poor upbringing, poor performance in school,
low I.Q., and adaptability to prison life. Numerous witnesses
testified at the sentencing retrial regarding each of these facts. In
all, approximately fifteen witnesses testified on behalf of Matthews
at his sentencing retrial.
At the state PCR hearing, Matthews presented
voluminous evidence in support of his claim that he suffers from brain
damage due to exposure to lead. The PCR court found that Matthews did
not suffer from brain damage due to lead exposure. See (J.A. 968) ("I
find that Applicant has failed to establish that any brain damage
existed in the Applicant at the time of the murder and has failed to
establish that the damage, if any, contributed to the Applicant's
actions in committing the murder.").
Although counsel has the obligation to conduct a
reasonable investigation even if the defendant is reluctant to
cooperate, Blanco v. Singletary, 943 F.2d 1477, 1503 (11th Cir.1991),
cert. denied, 504 U.S. 943, 946, 112 S.Ct. 2282, 2290, 119 L.Ed.2d
207, 213 (1992), counsel is not deficient for failing to find
mitigating evidence if, after a reasonable investigation, nothing has
put the counsel on notice of the existence of that evidence, Barnes v.
Thompson, 58 F.3d 971, 980 (4th Cir.) (counsel not ineffective for
failure to discover defendant's childhood abuse or mental impairment
when petitioner and family members gave no indication that such
evidence existed), cert. denied, --- U.S. ----, 116 S.Ct. 435, 133
L.Ed.2d 350 (1995); see also Lambrix, 72 F.3d at 1505-06 (counsel's
performance not deficient for failing to investigate and introduce
evidence of petitioner's childhood abuse where extensive investigation
into mitigating evidence produced no evidence of childhood abuse).
In this case, as noted above, counsels'
investigation for the sentencing retrial was extensive. Even after an
extensive investigation, including interviews with numerous witnesses,
including family members, a psychiatrist and psychologist, counsel had
no indication that evidence of brain damage due to lead exposure
existed. In short, Matthews has not shown that counsels' failure to
investigate and present evidence of brain damage due to lead exposure
was constitutionally deficient.
Matthews also claims his counsel at his sentencing
retrial were ineffective for failing to move the sentencing court to
further redact letters written by him that were introduced into
evidence. This argument is without merit.
Prior to Matthews' sentencing retrial, he made a
motion in limine to exclude two letters written by him following his
first trial. The letters covered a variety of subjects, including
references to crime, Matthews' potential appeals, and other, more
personal information. The sentencing judge denied the motion. Matthews
then asked the sentencing judge to redact any references in the
letters to the first trial, death row, and his exercise of his
appellate rights. The sentencing judge granted this request. At
Matthews' sentencing retrial, the redacted letters were introduced
into evidence. As redacted, each letter contained profanity and the
phrases "sitting down smoking a good joint" and "if I ever get out of
this shit." Transcript of Sentencing Retrial at 1323, 1325.
At the PCR hearing, O'Connell testified that he
attempted to get any damaging information removed from the letters but,
as was evidenced from the sentencing judge's ruling that the letters
were admissible, he was not going to prevent the jury from seeing the
letters. O'Connell further testified that once the motion to suppress
was denied, he asked for redaction of as much as he believed he could
get, but preferred not to anger the sentencing judge by asking for
deletions he did not believe would be allowed. A judgment call of this
kind certainly falls within the range of acceptable strategic decision-making
and cannot be considered deficient. Cf. United States v. Kozinski, 16
F.3d 795, 813 (7th Cir.1994) (decision whether to call witness
afforded "enormous deference"); Goodson v. United States, 564 F.2d
1071, 1072 (4th Cir.1977) (decision to call witness a tactical
Matthews contends that the sentencing judge's
refusal to answer voir dire questions prior to his sentencing retrial
violated his constitutional right to a fair trial. We disagree.
Prior to his sentencing retrial, Matthews made a
motion requesting the sentencing judge to submit to voir dire
the Court's attitude toward the death penalty in
general, the appropriateness of the death penalty in this case,
whether the Court has expressed public opinions about the death
penalty and what those opinions are, whether the Court was called on
to vote on legislation concerning the death penalty while the Court
was a member of the legislature and what that vote or votes were,
whether the Court has any connection with the family of the deceased
victim in this case, whether the Court's knowledge of this case
through any means public or not would have any effect on the Court's
decision on the appropriate penalty in this case and what that effect
would be, whether the Court could consider a sentence of life
imprisonment in a case of this type.
Appendix to Second Petition for Writ of Certiorari
to the Supreme Court of South Carolina at 1727. According to Matthews,
the purpose of the motion was to assist him in deciding whether to be
resentenced by a jury or a judge. See S.C. ANN. § 16-3-25(E) (providing
trial by jury for capital defendant's resentencing unless the capital
defendant waives trial by jury). The sentencing judge offered the
following response to the motion:
The only thing I can state in that regard is I was
in the legislature when the death penalty was, quote, reenacted, and I
voted in favor of that....
I don't know anybody with the family. I've never
met anybody in the family at all. The only knowledge I have is from
the newspaper accounts back at that time....
How I feel about the appropriateness of the death
penalty in this case, whether I've expressed public opinions about the
death penalty, what those opinions are; whether I would consider a
life imprisonment--those types of things. I would decline to answer
Transcript of Sentencing Retrial at 44-45.
Prior to the commencement of voir dire examination,
the issue was raised again. At that time, the sentencing judge stated:
As a member of the judiciary, [I am], of course,
governed by certain requirements. A jury in and of themselves--they
are not subject to the rules of ethical standards that judges are and
the case law and other requirements placed upon a judge.
Because of that, I would say that I could not
preside over a case unless--if I felt I was anything less than
impartial in regard to the Defendant and the facts of the case. As you
know, I would obviously be required to recuse myself. That's the
position that I'm in in this case, that if I felt that I would have
any reason to recuse myself then I would do so.
But I am not going to establish and do not think I
should or that it would be appropriate for me to establish precedent
by allowing voir dire of judges. So I decline to do that but with the
statement that if there was any question about impartiality I would
recuse myself from the case.
Id. at 90-91.
On direct appeal, the Supreme Court of South
Carolina rejected Matthews' contention that the sentencing judge's
refusal to answer voir dire questions prior to his sentencing retrial
violated his constitutional right to a fair trial, explaining:
This State's capital sentencing scheme contains no
provision for voir dire examination of a trial judge, nor do we
believe one is necessary. A judge's oath requires him to follow and
uphold the law in all cases, including capital cases. Had appellant
waived the jury and chosen sentencing by the court, the judge would
have been required to consider applicable mitigating and aggravating
circumstances under § 16-3-20(C) before imposing a sentence. The judge
is entitled to a presumption that he would have done so, regardless of
his "personal beliefs" about capital punishment. The judge here did
not abuse his discretion in refusing to submit to voir dire
State v. Matthews, 373 S.E.2d at 590.
We agree with the Supreme Court of South Carolina
that Matthews' claim lacks merit. We are aware of no authority,
federal or state, that requires a trial judge to submit to voir dire
examination. In addition, we see no plausible reason to create such a
rule in this case. This is especially true since South Carolina law
provides an appropriate vehicle to obtain recusal of a judge if the
facts and circumstances so warrant. See Rogers v. Wilkins, 275 S.C.
28, 267 S.E.2d 86, 87-88 (1980) (motion to recuse must be made during
proceeding and show actual judicial prejudice pursuant to S.C.App.Ct.
R. 501, Code of Jud. Conduct, Canon 3(C)). Finally, if we held that
Matthews' constitutional right to a fair trial was violated by the
sentencing judge's refusal to answer his proposed voir dire questions,
such a holding would certainly constitute a new rule under Teague. See
489 U.S. at 316, 109 S.Ct. at 1078 (absent two exceptions inapplicable
here, new constitutional rules of criminal procedure are not
retroactive on collateral review).
Finally, Matthews argues that premature juror
deliberations at his sentencing retrial deprived him of a fair trial.
This claim was not raised in state court. For the reasons stated in
Part IIA of this opinion, we are procedurally barred from reviewing
For the reasons stated herein, the judgment of the
district court is affirmed.
unconstitutional, on its face, and as applied in
this case, ... as violative of the guarantees of due process of law
and equal protection of the law, and guarantees against cruel and
unusual punishments contained in the South Carolina Constitution and
United States Constitution.
Appendix to Second Petition for Writ of Certiorari
to the Supreme Court of South Carolina at 1733. The motion suggests
that the South Carolina Death Penalty Statute violated the Equal
Protection Clause because the statute confers to the prosecutor "the
complete and unbridled discretion in the first instance as to whether
the death penalty will be sought in any particular case." Id. at 1734.
He did not have the benefit of a direct appeal,
because his attorney failed to file an appellate brief. Moreover, the
first PCR court decided, in effect, that Washington was entitled to a
new trial, but allowed the relief to be addressed on direct appeal;
however, this Court denied certiorari as to the question. Additionally,
the second PCR court granted relief, but did so through an improper
procedure, specifically, by amending the first order. Thus, Washington
has never received the benefit of a direct review. Even if his
application is successive, the unique combination of facts in this
case entitle him to the relief granted below.