(1967 or 1968 – December 3, 1999) was executed by lethal injection,
having been convicted of two counts of murder, one count of
kidnapping, and one count of armed robbery.
In the evening of
January 7, 1991, Rocheville and his friend Richard Longworth decided,
while driving around in their minivan, to rob the WestGate Mall
Cinema in Spartanburg, South Carolina.
After entering the
theater, Longworth took his handgun from his shoulder holster and
gave it to Rocheville, and the two viewed a movie for a short time.
The two then proceeded into the lobby to implement their plan to rob
the theater of money located in the ticket booth.
encountered an usher, Alexander George Hopps, 19, walking down the
hallway, Longworth knocked Hopps down, jumped on him, held his hand
over Hopps’ mouth, and dragged him outside of the theater through
the side exit.
As Longworth pinned
Hopps against a waist-high bar that protected the air conditioning
unit, Rocheville shot Hopps in the left side of the head. Rocheville
then returned the gun to Longworth, who placed it back in his
To reenter the
theater, Longworth and Rocheville walked around to the front of the
cinema and found the front doors locked. They motioned to James Todd
Greene, 24, a cinema employee to whom they had waved when they
initially entered the theater, and Greene opened the door.
At that point,
Longworth drew his gun and demanded that Greene open the safe in the
ticket booth. Longworth took several money bags from the safe and
ascertained from Greene that there were more bags in Greene’s
automobile, ready for deposit.
those bags, Longworth and Rocheville forced Greene into their
minivan, which Longworth drove. Longworth again handed his gun to
Rocheville and instructed him to shoot Greene if he moved. After
driving away from the theater, Longworth stopped the vehicle and
instructed Greene to get out, walk five paces, get on his knees, and
stare straight ahead. At that point, Rocheville shot Greene in the
back of the head.
Arrest and trial
Rocheville were arrested the next day, after Rocheville led law
enforcement officers to Greene’s body. After Longworth was arrested,
he provided officers with a detailed statement of the crimes that he
and Rocheville had committed. Each was indicted on two counts of
murder, one count of kidnapping, and one count of armed robbery.
Separate juries convicted them and sentenced them to death.
that he killed Greene but says that he was coerced into it and
claims that he was afraid that Longworth would kill him. "Basically,
my crime was I was no hero that night", Rocheville said.
executed on December 3, 1999, while his accomplice, Richard
Longworth, was executed more than 5 years later, on April 15, 2005.
David Rocheville and
Richard Longworth were sentenced to die for the January 7, 1991
murder of James Todd Green in Spartenburg, South Carolina.
Todd was a 24-year-old
college student who was the assistant manager of a movie theater
that Rocheville was robbing.
He also killed
Alexander George Hopps, 19 and also a college student. Both victims
were shot with a handgun.
both of his victims since he was a former manager of another theater
in the chain. Alex was shot and killed outside the back door of the
theater at about 11 p.m., prosecutors said.
They then forced
Todd to open the safe and their take for the robbery was $3,088.
Todd was kidnapped and taken in a minivan to Inman, about 10 miles
away, where he was made to kneel down in a ditch and was shot once
in the back of the head.
a life sentence for Alex's murder and Longworth was sentenced to
death for both murders. Rocheville admits that he killed Todd but
says that he was coerced into it and claims that he was afraid that
Longworth would kill him.
"Basically, my crime was I was no
hero that night," Rocheville said. "I was a coward."
He said his role in the crimes did not warrant the death
penalty, and he received poor legal representation and deserved
another trial. "I think he's a complete liar," said Alex Hopps Sr.,
the father of one of the victims.
Hopps believes the prosecutor's contention that Rocheville
masterminded the murders and robbery at the theater.
Hopps said Rocheville's statements are just another example of
a murderer deflecting blame for his crimes. Rocheville, he said, is
a pathological liar. "He showed no remorse. He's never shown
remorse," Hopps said.
Rocheville, however, said his execution might help end the
suffering of the victims' families. "I'm sorry for the pain they're
going through," Rocheville said. "If this happening Friday will
somehow give them closure, then the pain that my family is going
through might not be in vain."
Rocheville's family and friends said he had no criminal record
before the killings, and he has been a model prisoner since. They
describe him as an avid reader and writer who serves as a role model
to younger prisoners. But Green's mother, Mary Ann Green, said she
was looking forward to Rocheville's execution. "I'm happy for the
simple reason that it's coming to the end for one of them," she said.
"I just don't have any mercy for them."
Longworth also is on death row. His execution has not been
scheduled. If the governor does not grant clemency, Rocheville's
execution will be witnessed by Spartanburg County Sheriff Bill
Coffey; 7th Circuit Solicitor Holman Gossett; and the victims'
surviving relatives -- Mary Ann Green, Todd Green's mother, and Alec
Hopps Sr. and Caroline E. Hopps, Alex Hopps' father and sister.
Rocheville exhausted his appeals in October. Longworth's case is
still under appeal.
Alec Hopps said he's looking forward to seeing Rocheville die.
"I believe strongly in the death penalty for people like this who
have complete disregard for life," Hopps said.
Hopps said a lethal injection is an easy way for Rocheville to
die, and he believes the death sentence should have been carried out
Todd Green's best friend, Larry Prince of Boiling Springs,
hopes the execution will bring the victims' families some sense of
justice. "It's been a long ordeal, a long process, and we're
anxious to finally get some conclusion to this," Prince said.
As the years have gone by, Prince said he's concerned that
public attention has shifted to Rocheville and whether he will
receive a last-minute reprieve. "The more time that goes by, people
... tend to focus more on the criminal that's being executed, and
they forget about the victim's family," Prince said.
Todd Green was an innocent person whose life was taken for no
reason, Prince said. "This is a punishment that's being carried out
for a heinous crime," he said. Prince has remained close to Green's
mother, and he plans to accompany her to Columbia today to provide
The looming execution has caused many of the emotions that
surrounded the murders and the trials to resurface, Prince said. "It's
very hard for me to have to watch Todd's mother go through having to
re-experience some of those emotions," Prince said.
The execution date also is bringing back terrible memories to
people who worked with Green and Hopps at the theaters, said Todd
Nelmes, 26, of Charlotte, N.C.
Nelmes was a senior at Boiling Springs High School in 1991,
and he was working as a projectionist at the Westgate Mall Cinemas
on the night Green and Hopps were killed. Nelmes hopes Rocheville
will die, as scheduled, this evening. "We're not vengeful, hateful
people," Nelmes said, "but it would put some closure on what
David Rocheville, 31 , 99-12-03, South Carolina
A Spartanburg County man convicted in the 1991 execution-style
shooting of a movie theater manager was executed by injection Friday.
David Rocheville was pronounced dead at 6:18 p.m., Corrections
Department spokesman John Barkley said.
Rocheville made no final statement and laid still with his eyes
Other than several hard swallows, he showed no emotion and made no
sounds. On Thursday, Rocheville took a polygraph test to try to show
he shot Todd Green, 24, under duress from his accomplice Richard
Longworth. The results of that test were inconclusive.
After Rocheville was pronounced dead, Mary Green and Alex Hopps Sr.,
parents of Rocheville and Longworth's two victims, shared a brief
"I just feel better," Mrs. Green said. However, she said she is
still searching for why her only child was killed. "I'll always
wonder why. That's the one thing that bothered me. I can't see why
anybody had any reason to murder Todd."
Rocheville said in an interview earlier this week he closed his eyes
and fired the gun and does not know if he hit Green. Longworth then
fired 3 more shots at Green, Rocheville said. Longworth has said
Rocheville fired all 4 shots.
"Basically, my crime was I was no hero that night," he said. "I was
At his trial, police investigators testified that Rocheville
admitted to the shooting.
Rocheville took a polygraph test Thursday to bolster his clemency
appeal to Gov. Jim Hodges. But the test was inconclusive, said Faye
Weldon, a paralegal for Rocheville's appeals lawyer and the governor
refused to stop the execution.
"The governor found no compelling reason that the judgment of the
jury should not be carried out," spokeswoman Nina Brook said.
"What happened tonight is a consequence of what happened 9 years
ago. He committed the ultimate crime and he paid the ultimate price,"
said Alex Hopps Sr., who witnessed the execution. Rocheville "died
in a very dignified way, which is more than my son."
Rocheville and Longworth were both 22 when they were charged with
the deaths of Green and theater employee Alex Hopps Jr., 19, on Jan.
Rocheville and Longworth, both former employees of the chain that
owned the theater, were drinking earlier in the evening then went to
see a movie.
Hopps was killed outside the back door of the theater at about 11
p.m., prosecutors said.
A short time later, Green was forced to open a safe. After
Rocheville and Longworth stole about $3,000, they forced Green into
a minivan and drove him to Inman where he was shot in the back of
the head at the side of a road, prosecutors said.
Rocheville said Longworth pointed the gun at him and said, "It's
either you or him."
Rocheville was sentenced to life in prison for Hopps' death and
received the death penalty for Green's.
Longworth is also on death row, although his execution date has not
About 24 people stood outside Broad Correctional Facility to protest
Rocheville becomes the 4th condemned prisoner to be executed in
SouthCarolina this year and the 24th since the state resumed capital
punishment in 1985.
(sources: Spartanburg Herald Journal & Rick Halperin)
U.S. Court of Appeals, Fourth
MICHAEL MOORE, COMMISSIONER, SOUTH CAROLINA DEPARTMENT OF CORRECTIONS;
CHARLES CONDON, ATTORNEY GENERAL, STATE OF SOUTH CAROLINA, RESPONDENTS-APPELLEES.
March 16, 1999
Appeal from the United States District Court for
the District of South Carolina, at Greenville. Charles E. Simons, Jr.,
Senior District Judge. (CA-97-2665-6-6AK)
Before Wilkins, Michael, and Traxler, Circuit
The opinion of the court was delivered by: Per
Argued: January 25, 1999
Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in
this circuit. See Local Rule 36(c).
Appellant David Rocheville filed this petition for
habeas corpus relief*fn1
from his South Carolina convictions for murdering Alex Hopps and James
Todd Green and his resulting sentences of life imprisonment and death
respectively. See 28 U.S.C.A.§ 2254 (West 1994 & Supp. 1998).*fn2
The district court denied the petition. Because we conclude that
Rocheville has not made a substantial showing of the denial of a
constitutional right, we deny his request for a certificate of
appealability and dismiss.
Late on the evening of January 7, 1991, the victims
were the only two employees on duty at the Westgate Mall Cinemas in
Spartanburg, South Carolina. Green, a 22-year-old assistant manager,
had the combination to the safe and was expected to deposit the
evening's receipts into a local bank after the theater closed. Hopps,
a 19-year-old college student who was working as an usher, was to
follow Green as a security precaution. Although several movies were
still playing, the box office and concession stand closed by 10:30
p.m. Before the cashier left the theater at approximately 10:40 p.m.,
she observed Rocheville, a former assistant manager at the theater, in
At about the same time, an off-duty employee of the
theater and his girlfriend were sitting in the parking lot of the
theater. They observed a van approach Green's automobile and watched
as Rocheville exited the van and looked inside Green's vehicle.
Rocheville returned to the van and, after speaking with someone and
returning briefly to Green's automobile, left with an unidentified
driver. The off-duty employee went inside the theater to inform Green
of Rocheville's interest in the vehicle. He found no employees in the
theater but located Hopps' body behind the theater near the rear door.
Hopps had been shot in his left temple with a medium-to-large caliber
firearm. The theater office was a shambles, and approximately $3,000
was missing from the theater safe.
The following morning, Rocheville was arrested and
began to supply information to the police concerning the crimes. He
provided a series of changing accounts of his actions and those of his
accomplice, Richard Longworth. Initially, Rocheville claimed that
Longworth had murdered both Hopps and Green and was responsible for
robbing the theater. Eventually, however, Rocheville admitted to
having murdered Green. In addition, Rocheville led police to Green's
body, which had not previously been located, in a ditch several miles
from the theater. Green had been shot in the back of the head.
A jury convicted Rocheville of armed robbery,
kidnapping, and the murders of Hopps and Green. And, having concluded
that Rocheville murdered Green during an armed robbery and a
kidnapping, the jury recommended a sentence of death for Green's
murder. Rocheville was sentenced to life imprisonment for Hopps'
The Supreme Court of South Carolina affirmed
Rocheville's convictions and sentences on direct appeal, and the
Supreme Court denied certiorari. See State v. Rocheville, 425 S.E.2d
32 (S.C.), cert. denied, 508 U.S. 978 (1993). Subsequently, Rocheville
brought an action for post-conviction relief (PCR) in state court
raising numerous issues. The state PCR court determined that a number
of the claims were procedurally defaulted. In addition, it found the
remaining claims to lack merit and denied Rocheville's petition. The
South Carolina Supreme Court denied certiorari.
Rocheville subsequently brought the present
petition seeking habeas corpus relief pursuant to 28 U.S.C.A. § 2254,
and the State moved for summary judgment. A magistrate Judge
recommended that the State's motion for summary judgment be granted,
concluding that Rocheville offered no basis for habeas relief. The
district court adopted the recommendation of the magistrate Judge.
South Carolina law provides in pertinent part:
"The circuit courts shall have power to change the
venue in all criminal cases pending therein, and over which they have
original jurisdiction, by ordering the record to be removed to another
county in the same circuit. The applica tion for removal must be made
to the Judge sitting in regular term." S.C. Code Ann. § 17-21-80 (Law.
Rocheville moved for a change of venue before Judge
Luke Brown, who had been appointed by the South Carolina Supreme Court
to preside over all aspects of Rocheville's trial. When a motion for a
change of venue was made and argued, however, Judge Brown was holding
court in Aiken, South Carolina. Prior to argument, Judge Brown
acknowledged that the proceedings were not taking place in Spartanburg,
where the murders occurred, and asked if Rocheville had any objection.
Counsel for Rocheville stated that there was no objection. At the
close of the hearing, Judge Brown took the matter under advisement and
several days later he entered an order denying the motion for a change
of venue while sitting in Spartanburg.
Rocheville argues that Judge Brown lacked
jurisdiction to consider the motion, that the remainder of the trial
was tainted by the ruling, and hence that he was deprived of due
process. He also claims that his trial counsel was ineffective for
attempting to waive any objection to the motion being heard in Aiken.
Rocheville, however, raised these arguments for the
first time in these § 2254 proceedings in his filings before this
court; thus, they are not properly before us. See Spencer v. Murray ,
5 F.3d 758, 762 (4th Cir. 1993) (explaining that issue not raised
before the district court is not considered by this court). Further,
the issues are procedurally defaulted because the state PCR court*fn3
expressly ruled that they had not been raised timely, and Rocheville
cannot demonstrate cause and prejudice or a fundamental miscarriage of
Justice to excuse his default. See Coleman v. Thompson, 501 U.S. 722,
750 (1991). Finally, the state PCR court held in the alternative that
Rocheville's argument lacked merit as a matter of South Carolina law
because Judge Brown possessed jurisdiction to hear the venue motion.
We have no authority to review that determination of state law. See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Under South Carolina law:
"Whenever any person is charged with murder and the
death penalty is sought, the court, upon determining that such per son
is unable financially to retain adequate legal counsel, shall appoint
two attorneys to defend such person in the trial of the action." S.C.
Code Ann. § 16-3-26(B)(1) (Law. Co-op. Supp. 1998)
Rocheville explains that the state trial court
found him to be indigent but never appointed counsel for him or made
him aware that he was entitled to have attorneys appointed. Rather,
Rocheville was represented by one retained attorney whom his parents
hired for him. Thus, Rocheville asserts, he was denied due process in
violation of the Fourteenth Amendment because the state court failed
to obtain his waiver of the statutory right to appointed counsel.
Furthermore, Rocheville claims his trial counsel was ineffective for
failing to secure appointed counsel.
Rocheville raised these claims in his state PCR
proceeding, and that court ruled that the claims lacked merit. It
interpreted the statute as not requiring the appointment of counsel
when a defendant already has had retained counsel. This ruling is one
of state law with which we have no authority to disagree. See Estelle
, 502 U.S. at 67-68. Because under state law Rocheville was not
entitled to appointed counsel, the state trial court did not err in
failing to obtain a waiver from Rocheville, and his retained attorney
was not ineffective for failing to secure appointed counsel. Thus,
Rocheville's claims that the trial court erred in failing to obtain a
waiver of his right to appointed counsel and that his attorney was
ineffective in failing to secure additional appointed counsel lack
South Carolina law provides:
"Notwithstanding any other provision of law, in any
crimi nal trial where the maximum penalty is death or in a sepa rate
sentencing proceeding following such trial, the defendant and his
counsel shall have the right to make the last argument." S.C. Code Ann.
§ 16-3-28 (Law. Co-op. Supp. 1998).
This statute has been construed by the South
Carolina Supreme Court to require that a capital defendant be provided
with the opportunity to make a final, personal argument to the jury at
the close of the guilt and sentencing phases of the trial. See State
v. Charping, 437 S.E.2d 88, 89 (S.C. 1993). Rocheville maintains that
his attorney was constitutionally ineffective in failing to advise him
of his right to make the final argument in the guilt phase of the
trial and that the trial court deprived him of due process of law by
failing to ensure that he waived this right.
The PCR court took testimony on this issue and
concluded, based on trial counsel's testimony, that counsel had
informed Rocheville of his right to make the final argument at the
close of the guilt phase of the trial. "[A] determination of a factual
issue made by a State court shall be presumed to be correct." 28
U.S.C.A.§ 2254(e)(1). Rocheville bears "the burden of rebutting the
presumption of correctness by clear and convincing evidence." Id.
Rocheville has not shown by clear and convincing
evidence that the finding of the PCR court that trial counsel informed
Rocheville of his right to a final, personal closing argument was
erroneous. Trial counsel's PCR testimony does not conflict with
counsel's statement during argument before the South Carolina Supreme
Court that he did not recall whether he had so informed Rocheville. It
is perfectly understandable that when questioned during oral argument
on an issue he was not expecting, the attorney would not immediately
recall his advice on a certain issue; but, that does not indicate that
the attorney was inconsistent when he later testified as to his
actions after a period of time for reflection. Further, there was no
contrary evidence to rebut trial counsel's testimony during the PCR
proceedings, which the court found to be credible. Therefore,
Rocheville has failed to rebut the presumption of correctness of the
factual finding by the PCR court that counsel advised him of his right
to give a final, personal closing argument at the end of the guilt
phase. Accordingly, this court must accept that finding and conclude
that Rocheville's claim-premised upon the failure of trial counsel to
inform him of his right --lacks merit.
Rocheville also argues that counsel was ineffective
in handling matters relating to possible jury bias arising from
pretrial publicity. Specifically, Rocheville maintains that counsel
was ineffective in failing to adequately voir dire the jury to uncover
possible prejudice resulting from pretrial publicity and in failing to
hire an expert in mass communication to assist in determining the
possible effects on public opinion the pretrial publicity may have had
in order to prepare for the motion for a change of venue.*fn4
In order to prove a claim of constitutionally
ineffective assistance of counsel, Rocheville bears the burden of
demonstrating that trial "counsel's representation fell below an
objective standard of reasonableness" and "that there is a reasonable
probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). In assessing counsel's
performance, review is "highly deferential." Id. at 689. Indeed, a
strong presumption is afforded that counsel's performance was within
the extremely wide range of professionally competent assistance. See
id. And, to eliminate the deceptive effects of hindsight, "the
reasonableness of counsel's challenged conduct on the facts of the
particular case[ must be] viewed as of the time of counsel's conduct."
Id. at 690. Moreover, even those instances in which counsel's conduct
fell below an objective standard of reasonableness generally will not
justify setting aside a conviction unless the error affected the
outcome of the proceeding. See id. at 691-92. Therefore, deficiencies
in the conduct of Rocheville's attorney would amount to
constitutionally ineffective assistance of counsel only if in the
absence of unprofessional errors by his attorney there is a reasonable
probability--i.e., one adequate to undermine confidence in the result--that
"the result of the proceeding would have been different." Id. at 694.
Furthermore, in assessing prejudice, it is important to focus on "whether
the result of the proceeding was fundamentally unfair or unreliable."
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). Because the PCR court
decided Rocheville's claim of ineffective assistance of counsel on the
merits, pursuant to 28 U.S.C.A. § 2254(d)(1),*fn5
this court must determine whether the ruling against Rocheville
constituted an unreasonable application of clearly established Supreme
Court case law. See Green v. French, 143 F.3d 865, 890 (4th Cir.
1998), cert. denied, 119 S. Ct. 844 (1999). In this context, review
involves a determination of whether"the state court[ has] decided the
question by ... applying [Strickland] in a manner that reasonable
jurists would all agree is unreasonable." Id. at 870.
We cannot conclude that the resolution of
Rocheville's claim by the state PCR court was unreasonable. The PCR
court noted that counsel's effectiveness in dealing with the issues of
pretrial publicity must encompass a review of counsel's attempts to
have the venue of the trial transferred and counsel's handling of voir
dire and jury selection. The PCR court ruled that trial counsel's
attempts to have venue changed were competent. Trial counsel filed
appropriate pretrial motions, one seeking a change of venue and one
requesting that a Judge more familiar with the mood in Spartanburg
County rule on the motion. During the hearing on the motion for change
of venue, trial counsel supported the motion with the appropriate
material, submitting numerous newspaper articles and video newscasts
from the surrounding area relating to the murders, the victims, and
Rocheville's coconspirator, Longworth. Further, trial counsel
conducted an adequate voir dire. Over four days, counsel conducted
extensive individual questioning. In selecting the jury, the defense
utilized only seven of its ten peremptory strikes, suggesting that
counsel was able to obtain a fair panel. In addition, the PCR court
concluded that Rocheville had failed to establish any prejudice
resulting from the actions of trial counsel about which Rocheville
complains. Rocheville has failed to demonstrate that these rulings
During the guilt phase of Rocheville's trial, a
police detective testified concerning the various statements that
Rocheville gave about his involvement in the murders. Under
questioning by the prosecutor about Rocheville's confession, the
detective stated that after Rocheville confessed to having murdered
Green, he immediately asked to speak to a public defender.
Rocheville's trial counsel did not object to this testimony. In the
state PCR proceedings, Rocheville claimed that this testimony
constituted an improper and prejudicial comment on his invocation of
his right to counsel and that counsel was ineffective for failing to
raise this issue. The PCR court held that counsel was not ineffective
for failing to object to the comments and that the brief references
did not undermine confidence in the outcome of the proceeding.
This ruling was not unreasonable because the
references to Rocheville's invocation of his right to counsel did not
amount to a constitutional violation. The "mere mention" by a police
officer in trial testimony of a defendant's post-arrest, post-Miranda
invocation of the right to counsel is not unconstitutional. Noland v.
French, 134 F.3d 208, 216-17 (4th Cir.), cert. denied, 119 S. Ct. 125
(1998). The prosecution did not suggest that Rocheville's invocation
of his right to counsel was evidence of his guilt, and the police
officer's trial testimony made only passing reference to Rocheville's
invocation of right to counsel. Because the mention of Rocheville's
invocation of his right to counsel did not amount to a constitutional
error, the decision of the state PCR court that counsel was not
ineffective for failing to object to the testimony was not
Rocheville next maintains that portions of the
prosecutor's closing argument constituted an improper comment on
Rocheville's failure to testify, in contravention of his right to
remain silent. In addition, recognizing that he did not pursue this
claim on direct appeal, Rocheville argues that counsel was ineffective
for failing to pursue the issue on direct appeal.
Both of these arguments, however, are procedurally
defaulted. Rocheville did not raise the claim directly attacking the
prosecutor's closing argument on direct appeal. In addition,
Rocheville did not raise any issue related to the prosecution's
closing argument until after the state PCR court had denied his
petition. In his motion seeking to alter or amend the judgment,
Rocheville raised for the first time a claim concerning the
prosecutor's closing argument. The PCR court expressly ruled that the
issue was defaulted due to Rocheville's failure to raise it timely.
Because Rocheville cannot establish cause and prejudice or a
miscarriage of Justice to excuse his procedural default, this court
cannot consider this claim. See Coleman, 501 U.S. at 750.
Finally, Rocheville contends that his trial counsel
was constitutionally ineffective for failing to retain experts to
assist in his defense. First, Rocheville contends that the prosecution
theory was that the murders were committed in an "execution style" and
that if the murders had been committed as the prosecution argued,
there would have been a large amount of blood on Rocheville, while in
fact little or no blood was found on the clothing he was wearing.
Rocheville asserts that trial counsel should have retained a blood-splatter
expert to demonstrate this to the jury. Also, Rocheville argues that
trial counsel should have retained an atomic absorption expert to
explain to the jury that too much time had passed between the time of
the murders and the time the swabs of Rocheville's hands were taken
for tests designed to show whether Rocheville had fired a weapon to be
reliable. Additionally, Rocheville maintains that a crime
reconstruction expert would have been helpful to his defense.
At the PCR hearing, trial counsel testified that
Rocheville had confessed his guilt to law enforcement officers and had
admitted his guilt to counsel. As such, counsel believed that the best
strategy was to admit to the shooting--to avoid angering the jury by
contesting guilt --and to focus on developing mitigating evidence in
the sentencing phase of the trial. Counsel further testified that he
always did all of his own investigatory work and that in light of the
trial strategy, there was no need for experts in the areas identified
The PCR court that heard these claims denied relief,
reasoning that trial counsel's strategy was sound and did not amount
to unprofessional conduct. This decision is not unreasonable, and
hence Rocheville's argument does not provide a basis for habeas relief.
See 28 U.S.C.A. § 2254(d)(1); Green, 143 F.3d at 870.*fn6
We conclude that Rocheville has failed to make a
substantial showing of the denial of a constitutional right. Therefore,
we deny Rocheville a certificate of appealability and dismiss.
Rocheville named Michael Moore, Commissioner of the South Carolina
Department of Corrections, and Charles Condon, Attorney General of
South Carolina, as Respondents in this action. For ease of reference,
we refer to Respondents as "the State" throughout this opinion.
Because Rocheville's petition for a writ of habeas corpus was filed
on September 3, 1997, after the April 24, 1996 enactment of the
Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L.
No. 104-132, 110 Stat. 1214, amendments to 28 U.S.C.A.§ 2254 effected
by § 104 of the AEDPA govern our resolution of this appeal. See Green
v. French, 143 F.3d 865, 868 (4th Cir. 1998), cert. denied, 119 S. Ct.
844 (1999). Although Rocheville's state PCR proceedings were decided
by the South Carolina Supreme Court after June 18, 1996--the date that
South Carolina purports to have satisfied the opt-in provisions--the
State does not argue that the provisions of § 107 of the AEDPA (including
the more stringent procedural default provisions) apply. See Howard v.
Moore, 131 F.3d 399, 403 n. 1 (4th Cir. 1997) (en banc), cert. denied,
119 S. Ct. 108 (1998).
Because the South Carolina Supreme Court denied certiorari, the
decision of the state PCR court is the last reasoned state court
decision. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991).
To the extent that Rocheville argues that he was deprived of his
Sixth and Fourteenth Amendment rights to an impartial jury and a fair
trial because of inflammatory pretrial publicity, such claims are
procedurally defaulted. Rocheville raised no such claims on direct
appeal. Because they would not be entertained at this juncture in
state court, and because Rocheville cannot establish cause and
prejudice or a miscarriage of Justice to excuse his default, the
claims are treated as defaulted here. See Gray v. Netherland, 518 U.S.
152, 161-62 (1996).
As amended by the AEDPA, § 2254(d)(1) provides in relevant part that
a habeas petition shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings 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.
28 U.S.C.A. § 2254(d)(1).
Rocheville's remaining two arguments may be summarily rejected. We
recently held that it is not appropriate to consider whether instances
of ineffective assistance of counsel cumulatively prejudice the
defendant. See Fisher v. Angelone, 163 F.3d 835, 852-53 (4th Cir.
1998) (rejecting petitioner's argument "that the cumulative effect of
his trial counsel's individual actions deprived him of a fair trial").
And, our decision in Truesdale v. Moore, 142 F.3d 749, 753 n.2 (4th
Cir.), cert. denied, 119 S. Ct. 380 (1998), holding that procedural
default principles remain effective after the enactment of the AEDPA,
is binding on this panel.