Hill v. Ozmint , 339 F.3d 187 ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DAVID CLAYTON HILL, 
Petitioner-Appellant,
v.
JON E. OZMINT, Director, South
Carolina Department of Corrections;  No. 03-1
HENRY DARGAN MCMASTER,
Attorney General, State of South
Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Beaufort.
G. Ross Anderson, Jr., District Judge.
(CA-02-1319-9-13BG)
Argued: June 5, 2003
Decided: August 5, 2003
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Michael and Judge Motz joined.
COUNSEL
ARGUED: Jerome Howard Nickerson, Jr., CENTER FOR CAPITAL
LITIGATION, Columbia, South Carolina, for Appellant. Donald John
Zelenka, Assistant Deputy Attorney General, Columbia, South Caro-
2 HILL v. OZMINT
lina, for Appellees. ON BRIEF: Michael O’Connell, STIRLING &
O’CONNELL, Charleston, South Carolina, for Appellant. Henry Dar-
gan McMaster, Attorney General, John W. McIntosh, Chief Deputy
Attorney General, Columbia, South Carolina, for Appellees.
OPINION
KING, Circuit Judge:
In October of 1995, David Hill was sentenced to death for the mur-
der of Major Spencer Guerry, the Deputy Police Chief for the City of
Georgetown, South Carolina. After the South Carolina courts denied
relief on both direct appeal and collateral review, Hill sought habeas
corpus relief in the District of South Carolina. The district court
denied relief, and it declined to issue a certificate of appealability
("COA").1 In this proceeding, however, we have issued a COA on the
following habeas corpus claims: (1) that the trial court violated the
Constitution in refusing to grant a trial continuance; (2) that the pres-
ence of numerous uniformed law officers in the courtroom and court-
house during the trial was unconstitutional; (3) that the district court
erred in refusing to conduct an evidentiary hearing or authorize dis-
covery on the presence of officers in the courtroom and courthouse;
and (4) that Hill’s lawyers were constitutionally ineffective in calling
Hill’s psychiatrist during the trial’s sentencing phase. As explained
below, we reject each of these claims, and we affirm the district
court’s denial of habeas corpus relief.
I.
A.
In the early evening of March 7, 1994, Major Spencer Guerry,
1
Section 2253(c) of Title 28 of the United States Code provides that,
unless "a circuit justice or judge issues a [COA], an appeal may not be
taken to the court of appeals from . . . the final order in a habeas corpus
proceeding in which the detention complained of arises out of process
issued by a State court." 28 U.S.C. § 2253(c).
HILL v. OZMINT 3
Georgetown’s thirty-seven year old Deputy Police Chief, ate supper
with his wife and children at a Shoney’s Restaurant in Georgetown.
At approximately 7:00 p.m., Guerry left the restaurant to return to
police headquarters. While driving in his police cruiser on High Mar-
ket Street, Guerry observed a Honda Prelude travelling ahead of him
with an expired Colorado license plate. Guerry promptly illuminated
his blue flashing lights, and the Honda pulled into a parking lot at the
Georgetown Car Wash. Guerry exited his cruiser and approached the
Honda, requesting that the driver, David Hill, provide his driver’s
license and the Honda’s registration card. Although unable to produce
a license, Hill provided Guerry with identification and the Honda’s
registration card. Guerry then returned to his police cruiser and
radioed Hill’s information to headquarters.
While awaiting a response from headquarters, Major Guerry again
approached the Honda, instructing Hill to exit the vehicle. At that
time, Guerry was shot in the face with Hill’s gun. Although he was
mortally wounded, Guerry managed to use the radio on his shoulder
strap to call for assistance. As indicated on a tape recording made at
headquarters, he muttered only a few words, including "6-9" (the code
for the dispatcher at headquarters was 6-9-1) and "-eh shot me." Soon
after this transmission, emergency personnel arrived on the scene and
transported Guerry to the Medical University of South Carolina,
where he died several days later.
Prior to the arrival of emergency personnel, Hill fled the scene of
the shooting. Driving the Honda, he first went to his home on
McDonald Road in Georgetown, where he picked up his girlfriend,
Wendy Richardson. Richardson and Hill then went to the nearby
home of Hill’s parents, Gracie and Arthur Hill. Gracie and Richard-
son then followed Hill in Gracie’s car as Hill drove to Johnson Road
in Georgetown, where he abandoned the Honda in a ditch. After
returning briefly to his parents’ home, Hill departed again, leaving
Richardson with his parents.
In the meantime, police investigators had begun to search for Hill
and the Honda. Armed with the information that Major Guerry had
transmitted to headquarters before being shot, officers searched Hill’s
house on McDonald Road. Afterward, they went to the home of Hill’s
parents. By the time they arrived, Hill had abandoned the Honda,
4 HILL v. OZMINT
returned with Gracie and Richardson, and left again. The officers
spoke with both Gracie and Richardson and searched the residence.
As they were leaving, they requested that Gracie and Richardson have
Hill contact the authorities.
Approximately fifteen minutes after the investigators departed, Hill
returned to his parents’ home with his clothes covered in mud. After
Gracie informed him that the police had been there and were looking
for him, Hill showered and poured Clorox on his hands. He then
phoned the police and advised them that the Honda had been stolen.
Investigators responded immediately, arresting Hill and transporting
him to headquarters.
At headquarters, investigators performed trace metal tests on Hill’s
hands, revealing that Hill had recently fired a gun. After waiving his
Miranda rights, Hill advised investigators that, earlier that afternoon,
he had fought with his girlfriend. Afterwards, he had walked from his
home to his parents’ residence and had fallen asleep while reading a
magazine in a nearby shed. Upon awakening, Hill entered his parents’
home, where Gracie informed him that the authorities were looking
for him. He then called the police. Skeptical of Hill’s statements,
investigators questioned him regarding the precise timing of these
events. Hill then requested a lawyer, and investigators terminated the
interview. That evening, investigators found the abandoned Honda.
They also visited a nearby Exxon station and recovered a credit card
receipt bearing Hill’s signature. The receipt was time-stamped at 6:00
p.m. on March 7, 1994 — an hour before the shooting.
On April 20, 1994, Hill was indicted in Georgetown County for the
murder of Major Guerry. Pursuant to § 16-3-26 of the South Carolina
Code, the State notified Hill’s lawyers that it would seek the death
penalty. Trial proceedings began on Monday, October 23, 1995, and
by Wednesday morning, October 25th, jury selection had been com-
pleted. Given the publicity surrounding Guerry’s death and Hill’s
prosecution, the court sequestered the jury for the duration of the trial.
During its case-in-chief, the State presented substantial evidence of
Hill’s guilt, including, inter alia: eyewitness testimony; forensic evi-
dence; and testimony from other witnesses, including Richardson. By
noon on Saturday, October 28, 1994 — the fourth day of evidence —
the State rested its case, having presented more than forty witnesses.
HILL v. OZMINT 5
In his defense, Hill presented the testimony of officers involved
with Major Guerry’s last radio transmission, as well as the testimony
of a trace metal expert. Hill also testified on his own behalf. By the
time of trial, his version of the critical events had changed substan-
tially from the statement he made to police on the night of his arrest.
Specifically, Hill admitted in his trial testimony that he was in the
Honda at the time of Guerry’s shooting. He claimed, however, that
another person, Johnny Cribb — a friend to whom he owed $16,000
because of a drug deal gone awry — shot Guerry. On the day of the
shooting, Hill had travelled to Pawleys Island, South Carolina, to pur-
chase marijuana. While driving back to Georgetown, he picked up
Steve Blankenship, an individual with whom Hill and Cribb associ-
ated. After entering the Honda, Blankenship threatened Hill with a
pistol and forced him to drive to a Ramada Inn near Georgetown.
Blankenship also removed Hill’s handgun from the Honda’s glove
box.
At the Ramada Inn, Cribb met Hill and Blankenship, and Blanken-
ship gave Cribb both weapons. Cribb entered the Honda and informed
Hill that they had some "unfinished business." At this point, Cribb
aimed a weapon at Hill and instructed him to drive to Hill’s home on
McDonald Road. On the way, Hill and Cribb were pulled over by
Major Guerry. During the traffic stop, Cribb, who was hiding in the
Honda’s back seat, leaned into the front and shot Guerry with Hill’s
handgun. After the shooting, Hill and Cribb drove to Brick Chimney
Road in Georgetown and met Blankenship. Cribb forced Hill to exit
the Honda and had him fire a handgun into the woods. Afterward,
Cribb left with Blankenship, and Hill returned in the Honda to his
own home. He then met Richardson and proceeded with her to his
parents’ home before abandoning the Honda on Johnson Road.
By approximately 4:30 p.m. on Saturday, October 28, 1994, Hill
had completed his testimony. His next witness was to be Dr. Stephen
Cain, an expert from Wisconsin. Due to unforeseen circumstances,
however, Dr. Cain was unable to be in Georgetown that afternoon or
evening. Given Dr. Cain’s unavailability, the defense sought a contin-
uance until Monday morning so that Dr. Cain could testify. After the
court denied the continuance, the defense rested its case. Closing
arguments in the trial’s guilt phase were made on Saturday evening,
and the court instructed the jury on Sunday morning. The jury then
6 HILL v. OZMINT
deliberated for about forty-five minutes on Sunday before finding Hill
guilty of murder.
On Monday, October 30, 1995, the trial’s sentencing phase began.
At that time, the State presented several witnesses, including police
officers, Major Guerry’s wife, and Richardson. The defense began
presenting its evidence Monday afternoon, calling, inter alia, three
experts: Dr. Emil Coccaro, Dr. Bernard Albiniak, and Dr. Joseph
Burt. Each of these experts testified that Hill suffered from a treatable
neuro-chemical disorder. On Tuesday morning, October 31st, Hill’s
mother testified. After closing arguments, the jury again deliberated
and returned its verdict recommending that Hill be sentenced to death.
The trial court accepted the jury’s recommendation and imposed the
death sentence.
B.
Pursuant to South Carolina’s rules governing direct appeals, Hill
appealed his conviction and sentence directly to the Supreme Court
of South Carolina. On June 8, 1998, that court upheld Hill’s convic-
tion and death sentence. State v. Hill, 501 S.E.2d 122 (S.C. 1998). On
December 7, 1998, the Supreme Court of the United States denied
certiorari. Hill v. South Carolina, 525 U.S. 1043 (1998).
On May 6, 1999, Hill filed an Application for Post-Conviction
Relief (the "PCR") in the Court of Common Pleas for Georgetown
County (the "PCR Court").2 After conducting a four-day evidentiary
hearing on Hill’s claims, the PCR Court dismissed the PCR. Hill v.
Catoe, 99-CP-22-268, Order of Dismissal of Application for Post
Conviction Relief (S.C. Ct. C.P. Dec. 18, 2000) (the "PCR Order").
On April 18, 2002, the Supreme Court of South Carolina declined to
review the PCR Order, and the Supreme Court of the United States
thereafter denied certiorari. Hill v. Maynard, 123 S. Ct. 442 (2002).
2
On March 11, 2000, and again on March 22, 2000, Hill amended his
PCR to assert additional claims for relief. As cited herein, we refer to the
PCR as amended.
HILL v. OZMINT 7
C.
On April 22, 2002, Hill filed his petition for habeas corpus (the
"Petition") in the District of South Carolina.3 Pursuant to 28 U.S.C.
§ 636(b), the district court referred the Petition to a magistrate judge,
who conducted an extensive evaluation of Hill’s claims and recom-
mended that the Petition be dismissed. Hill v. Maynard, 9:02-1319-
11BG, Report and Recommendations of the Magistrate Judge (D.S.C.
Sept. 20, 2002) (the "Magistrate Report"). On November 18, 2002,
the district court adopted the Magistrate Report and dismissed the
Petition. Hill v. Maynard, 9:02-1319-13BG, Order (D.S.C. Nov. 18,
2002) (the "Order").
Although the district court denied Hill’s request for a COA, we
issued him a COA on the following habeas corpus claims:
(1) that the state trial court violated the Sixth Amendment
in failing to grant Hill a one-day continuance (the "Continu-
ance claim");
(2) that the presence of numerous uniformed law officers
in the courtroom and courthouse during the trial violated
Hill’s right to a fair trial (the "Holbrook claim"4);
(3) that the district court erred in refusing to conduct an
evidentiary hearing or to authorize discovery on the Hol-
brook claim (the "Discovery claim"); and
(4) that Hill’s lawyers were constitutionally ineffective in
calling Dr. Burt, Hill’s psychiatrist, as an expert witness
during the trial’s sentencing phase (the "IAC claim").
3
Hill amended the Petition on June 28, 2002, to add six additional
grounds for relief. In referring to the Petition, we are referring to it as
amended.
4
The Holbrook claim is premised on the Supreme Court’s decision in
Holbrook v. Flynn, 475 U.S. 560, 571-72 (1986) (observing that "a
roomful of uniformed and armed policemen" can, in certain situations,
"pose [a threat] to a defendant’s chances of receiving a fair trial").
8 HILL v. OZMINT
Hill v. Ozmint, No. 03-1, Order (4th Cir. May 28, 2003). After dis-
cussing the applicable standards of review, we will assess the merits
of each of these claims.
II.
We review de novo a district court’s "decision on a petition for writ
of habeas corpus based on a state court record." Basden v. Lee, 290
F.3d 602, 608 (4th Cir.), cert. denied, 123 S. Ct. 446 (2002) (internal
quotation marks omitted). Additionally, we review for abuse of dis-
cretion a district court’s refusal to conduct an evidentiary hearing or
to authorize discovery proceedings. Thomas v. Taylor, 170 F.3d 466,
474-75 (4th Cir. 1999).
Pursuant to the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), a federal court may award habeas corpus relief
with respect to a claim adjudicated on the merits in state court only
if the adjudication resulted in a decision that: (1) 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)
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). As the Supreme Court has explained, a state court adjudi-
cation is "contrary to" clearly established federal law only if "the state
court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court decides a
case differently than [the] Court has on a set of materially indistin-
guishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000).
"Under the ‘unreasonable application’ clause, a federal habeas court
may grant the writ if the state court identifies the correct governing
legal principle from [the] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case." Id. Finally, a state
court’s findings of fact are entitled to a "presumption of correctness,"
which a petitioner may rebut only by "clear and convincing evi-
dence." 28 U.S.C. § 2254(e)(1).
III. The Continuance claim
Hill asserts in his Petition that the trial court violated his Sixth
Amendment right to present his defense to the indictment in refusing
HILL v. OZMINT 9
to grant a continuance from Saturday evening until Monday morning
so that he could introduce Dr. Cain’s testimony and an enhanced ver-
sion of Guerry’s final radio transmission.5 The Supreme Court of
South Carolina summarily denied the Continuance claim, and the dis-
trict court ruled that the claim had been procedurally defaulted. We
have issued a COA on this claim. Although we agree with Hill’s con-
tention that he has preserved his right to assert the Continuance claim,
the state court’s resolution of it was neither "contrary to" nor an "un-
reasonable application of" clearly established federal law, and we
therefore decline to award habeas corpus relief on this claim.
A.
As background, we review the factual predicate for this claim. At
5:40 p.m. on Friday, October 27, 1994 — the fifth trial day — the
State informed the court that it had exhausted its available witnesses.
Because its final four witnesses would not be available until Saturday
morning, the State sought an overnight recess. The court granted the
continuance, and the trial was recessed until 9:00 a.m. on Saturday
morning. In moving for a continuance, the prosecution stated that it
was likely to rest its case on Saturday morning. Hill’s lawyers, how-
ever, had anticipated that the State’s case-in-chief would last at least
through Saturday. Accordingly, they had planned to begin Hill’s
defense no earlier than Monday of the following week. On Friday,
after receiving notice that the prosecution would probably rest its case
the next day, Hill’s lawyers altered their plans and prepared to present
defense witnesses on Saturday afternoon.
As discussed above, Hill asserted that Cribb had also been in the
Honda at the time of the incident and that Cribb had shot Major
Guerry. In support of this assertion, the defense contends that, in the
5
The Sixth Amendment provides that an accused has "the right to a
speedy and public trial[;] to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor[;] and to have
the Assistance of Counsel for his defence." U.S. Const. amend. VI. Pur-
suant to this provision of the Constitution, an accused has a fundamental
right to present a defense to a criminal charge. Herring v. New York, 422
U.S. 853, 856-57 (1975).
10 HILL v. OZMINT
garbled post-shooting radio transmission to headquarters, Guerry
actually said "they shot me" rather than "-eh shot me." The defense
had retained Dr. Cain, a forensic tape analyst from Wisconsin, to
enhance the recording of Guerry’s final transmission. Dr. Cain’s
expert testimony was to establish the foundation for admission of the
enhanced recording, which Hill hoped would convince the jury that
Guerry had said "they shot me." On Friday, October 27th, the defense
contacted Dr. Cain, who was in Nevada attending a conference with
an assistant. Dr. Cain advised Hill’s lawyers that he would complete
his business in Nevada and fly to Georgetown either that evening or
Saturday morning. After Dr. Cain purchased his airline ticket for
Georgetown, however, his assistant became violently ill, collapsed,
and was rushed to a hospital. As a result, Dr. Cain was unable to leave
Nevada, and he thus informed the defense late on Friday evening that
he could not be in Georgetown to testify on Saturday.6
When the trial court convened on Saturday morning, Hill’s lawyers
informed the judge that they would be unable to present Dr. Cain’s
testimony until Monday, and they thus moved for the trial to be con-
tinued until Monday morning. The court reserved ruling on the con-
tinuance motion in order to see how the trial progressed. After
presenting its final witness, the State rested its case at about noon on
Saturday. By 4:40 p.m. that afternoon, Hill’s lawyers had exhausted
their available witnesses, and the defense team had been unable to
secure Dr. Cain’s presence. Thus, the defense renewed its motion for
a continuance, seeking to have the trial continued until Monday morn-
ing when Dr. Cain would be available to testify. The court denied the
one-day continuance, stating that it: "simply cannot wait until Mon-
day morning. It is Saturday. According to my [watch] it is approxi-
mately twenty-two [until] five, and the court declines to recess the
trial until Monday morning." Hill’s defense thus rested its case with-
out presenting Dr. Cain’s testimony or introducing the enhanced tape
of Guerry’s final radio transmission.
6
On Saturday morning, Dr. Cain advised Hill’s lawyers that his assis-
tant’s condition had improved, and that he could testify on Monday.
HILL v. OZMINT 11
B.
In his direct appeal to the Supreme Court of South Carolina, Hill
maintained that, in denying his continuance motion, the trial court
contravened his Sixth Amendment right to present a defense. The
court summarily rejected that claim, relying on State v. Babb, 385
S.E.2d 827 (S.C. 1989), for the proposition that the denial of a motion
for a trial continuance will not be disturbed absent a clear abuse of
discretion resulting in prejudice. Hill, 501 S.E.2d at 128. In his Peti-
tion, Hill again contends that the trial judge violated the Sixth
Amendment in denying his continuance motion. The district court
rejected the Continuance claim on the basis that, because the Supreme
Court of South Carolina’s ruling rested on state law, the claim had
been procedurally defaulted and could not be raised in a federal
habeas corpus proceeding.7 Order at 8-10. We have issued a COA on
this claim.
Hill raises several subissues with respect to his Continuance claim.
First, he asserts that the district court erred in deciding that the claim
had been procedurally defaulted. Second, he maintains that there was
no state court adjudication "on the merits," and that we should there-
fore review the Continuance claim de novo. Finally, Hill contends
that he is entitled to habeas corpus relief because the trial court’s rul-
ing contravened his Sixth Amendment right to present a defense. We
examine each of these subissues in turn.
1.
First, we agree with Hill that the district court erred in ruling that
the Continuance claim was procedurally defaulted. It is true, of
course, that when "a state court has declined to consider [a claim’s]
merits on the basis of an adequate and independent state procedural
rule," Burket v. Angelone, 208 F.3d 172, 183 (4th Cir. 2000), federal
habeas corpus review of that claim is barred unless the petitioner can
demonstrate cause and prejudice, or otherwise show that the failure
7
For purposes of the Continuance claim and the Holbrook claim, we
use the term "state court" to refer to the Supreme Court of South Caro-
lina. With respect to Hill’s final claim, i.e., the IAC claim, our use of
"state court" refers to the PCR Court.
12 HILL v. OZMINT
to consider the claim will result in a fundamental miscarriage of jus-
tice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In this
instance, however, the state court did not dispose of the Continuance
claim on the basis of a state procedural rule. Rather, it considered the
merits of the claim, ruling that, under South Carolina law, the "denial
of [a] motion for continuance will not be disturbed absent clear abuse
of discretion resulting in prejudice." Hill, 501 S.E.2d at 128. Applying
this standard to the Continuance claim, the court found no reversible
error. In short, the state court did not determine that Hill had proce-
durally defaulted his Continuance claim; it rejected the claim on its
merits.
2.
Hill next asserts that, even though the state court rejected the Con-
tinuance claim, we should nevertheless review the claim de novo
because the state court failed to address and rely on the relevant
Supreme Court precedents. In other words, Hill contends that,
because the state court referenced only state law in resolving this
claim, it failed to "adjudicate" it "on the merits." Contrary to this
assertion, a state court may adjudicate a claim "on the merits" without
relying on or citing relevant Supreme Court precedents. See Early v.
Packer, 537 U.S. 3, 123 S. Ct. 362, 365 (2002) (applying AEDPA
deference to claim that state court disposed of without citing control-
ling Supreme Court precedent; thus implicitly concluding that claim
was adjudicated on merits); see also Cook v. McCune, 323 F.3d 825,
830-31 (10th Cir. 2003) (holding that, under Early, state court deci-
sion was entitled to deference under AEDPA even though Sixth
Amendment claim was reviewed under state law rather than relevant
Supreme Court authority). In this situation, the state court, in rejecting
Hill’s claim, adjudicated it on the merits, regardless of whether it ref-
erenced relevant federal law. We must therefore apply AEDPA’s def-
erential standard of review in our assessment of this claim. That is,
we limit our review to deciding whether the state court’s adjudication
was "contrary to" or an "unreasonable application of" clearly estab-
lished federal law.
3.
In assessing the Continuance claim, we must first identify the legal
standards applicable to a defendant’s contention that a trial court vio-
HILL v. OZMINT 13
lated the Constitution in refusing to grant a continuance. A defendant
must satisfy two elements in order to secure relief on such a claim.
First, he must establish that the trial court "abused its discretion" in
denying his continuance motion. Ungar v. Sarafite, 376 U.S. 575,
588-89 (1986); Morris v. Slappy, 461 U.S. 1, 11 (1964). Although a
"matter of continuance is traditionally within the discretion of the trial
judge," a trial court is not entitled to deny a continuance because of
a "myopic insistence upon expeditiousness in the face of a justifiable
request for delay." Ungar, 376 U.S. at 589. Second, to be entitled to
relief, the defendant must establish that the trial court’s erroneous rul-
ing prejudiced his defense. United States v. Colon, 975 F.2d 128, 130-
31 (4th Cir. 1992).
In its resolution of Hill’s direct appeal, the state court failed to pro-
vide the rationale for its decision to deny relief, and we are unable to
ascertain whether its ruling was premised on the abuse of discretion
issue or on the prejudice issue. Accordingly, we are obliged to inde-
pendently review the record and decide whether the state court’s
rejection of the Continuance claim was "‘contrary to, or involved an
unreasonable application of, clearly established Federal law.’" Bell v.
Jarvis, 236 F.3d 149, 157-58 (4th Cir. 2000) (en banc) (quoting 28
U.S.C. § 2254). In this situation, we are necessarily troubled by the
trial court’s refusal to continue Hill’s murder trial from Saturday eve-
ning to Monday morning. That said, Hill is unable to demonstrate that
he was prejudiced thereby. Thus, the state court’s decision in rejecting
the Continuance claim was neither "contrary to" nor an "unreasonable
application of" clearly established federal law.
At the time they sought a continuance, Hill’s lawyers provided a
credible and compelling justification for the need to delay the trial.
They gave the court a reasonable explanation for Dr. Cain’s unavaila-
bility; they summarized Dr. Cain’s anticipated testimony and its rele-
vance; and they informed the court that Dr. Cain would be available
to testify on Monday morning. The trial court’s refusal to grant Hill’s
continuance request also evinces an apparent inequity in the court’s
treatment of the parties. Where the prosecution asked for a continu-
ance, it was granted, but when Hill requested one, it was denied.
Finally, the trial court’s refusal to grant Hill a continuance appears to
have been made arbitrarily. In rejecting the continuance motion, the
court merely stated that it "simply [could not] wait until Monday
14 HILL v. OZMINT
morning." In these circumstances, the denial of Hill’s continuance
request seems to have resulted from what the Supreme Court has
characterized as "a myopic insistence upon expeditiousness in the
face of a justifiable request for delay." Ungar, 376 U.S. at 589.
Nevertheless, Hill cannot show that he suffered any prejudice from
the trial court’s ruling. To be sure, Hill was precluded from introduc-
ing Dr. Cain’s testimony and the enhanced tape, but as Dr. Cain
acknowledged during the PCR proceedings, the enhanced tape would
not have aided the jury in deciphering Guerry’s garbled transmission.
In fact, both the original tape and the enhanced tape were, as the PCR
Court found, indecipherable. PCR Order at 8.8 We thus conclude that
neither Dr. Cain’s testimony nor the introduction of the enhanced tape
would have aided Hill’s defense. See Gardner v. Barnett, 199 F.3d
915, 920 (7th Cir. 1999) (refusing to award relief because denial of
continuance did not affect verdict when excluded witness’s testimony
would not have aided defense). Accordingly, the state court’s rejec-
tion of the Continuance claim was neither "contrary to" nor an "unrea-
sonable application of" clearly established federal law.
IV. The Holbrook claim and the Discovery claim
In his Holbrook claim, Hill maintains that he was denied his right
to a fair trial because of the large number of uniformed police officers
present in the courtroom and courthouse during his trial.9 More spe-
cifically, he alleges that, "in an environment saturated by pretrial pub-
licity and rampant with emotionalism in a small community," the trial
court violated his right to a fair trial, as guaranteed by the Fourteenth
Amendment,10 by allowing "a multitude of uniformed officers" to be
8
The PCR Court’s finding of fact on this point is, under AEDPA, enti-
tled to a presumption of correctness. 28 U.S.C. § 2254(e).
9
In utilizing the phrase "the courtroom," we are referring to both the
courtroom and its adjacent hallways — where the presence of uniformed
law officers may have been observed by the jurors.
10
The Fourteenth Amendment provides, in pertinent part, that no "State
shall deprive any person of life, liberty, or property, without due process
of law." U.S. Const. amend. XIV. The right of an accused to a fair trial
is an essential requirement of due process. Withrow v. Larkin, 421 U.S.
35, 46 (1975).
HILL v. OZMINT 15
present during the trial. Petition at 29. In the alternative, Hill asserts
in his Discovery claim that the district court erred in denying the Hol-
brook claim without affording him an opportunity to develop the
record through an evidentiary hearing or discovery proceedings. Spe-
cifically, Hill contends that an evidentiary hearing or discovery would
have permitted him to establish — by way of videotape recordings of
the trial — the number of police officers present during his trial, and
thus show that their presence interfered with his right to a fair trial.
We issued a COA on both the Holbrook claim and the related Discov-
ery claim. For the reasons explained below, however, we reject these
claims.
A.
During voir dire, Hill asserted to the trial court that the presence
of numerous uniformed law officers in the courtroom was inherently
prejudicial, improperly suggesting to the jury that he was guilty. Dur-
ing a hearing on this issue — on Tuesday, October 24th — Hill cited
two examples to support his contention. First, he maintained that, ear-
lier that morning, six law officers were present in the hallway adja-
cent to the courtroom and that, as a result, the jury had to walk
through a "gauntlet" of law officers. Second, Hill contended that the
presence of security officers in the courtroom could unfairly prejudice
the jury.11 Upon questioning from the court, however, Hill conceded
that not all of the six individuals in the adjacent hallway were uni-
formed law enforcement. In fact, Hill’s count of six officers included
bailiffs and individuals who worked in the prosecutor’s office. Simi-
larly, not all of the security officers in the courtroom were in uniform.
For example, an officer near the judge was dressed in a coat and tie.
In these circumstances, the court rejected Hill’s contention that the
presence of uniformed law officers in the courtroom was unfairly preju-
dicial.12
11
For example, two uniformed officers were present with Major Guer-
ry’s widow, an officer was positioned near the trial judge, and another
officer was present in a corner of the courtroom.
12
During the trial’s sentencing phase, Hill again asserted to the trial
court that an array of uniformed law officers in the courtroom prejudiced
the jury against him. After discussing the issue with the court, Hill’s law-
yers conceded that the presence of the law officers in the courtroom
would not deny Hill a fair sentencing. Hill has not further contested the
trial court’s ruling regarding the presence of uniformed law officers dur-
ing sentencing. Hill, 501 S.E.2d at 125.
16 HILL v. OZMINT
On direct appeal, Hill contended that the presence of uniformed
law officers during his trial’s guilt phase violated his constitutional
right to a fair trial. Seeking support for this claim, Hill requested that
the Supreme Court of South Carolina empower him to subpoena vid-
eos made by television stations that had covered his trial. The court
refused to authorize the discovery of such videos because, pursuant
to Rule 605 of the South Carolina Appellate Rules of Procedure, they
would not have been admissible in any state court proceeding. The
court also concluded that Hill had failed to make the necessary show-
ing that he suffered actual or inherent prejudice from the presence of
uniformed law officers, and it therefore rejected the Holbrook claim.
Id. at 126.
In denying the Petition, the district court declined to conduct an
evidentiary hearing on this claim, and it also refused to authorize Hill
to conduct discovery on this point, reasoning that the "introduction of
the videotapes would not have aided any relevant evidence not
already contained within the record."13 Order at 24. The court also
concluded that, in adjudicating the Holbrook claim, the state court
decision was neither "contrary to" nor an "unreasonable application
of" clearly established federal law. Order at 22.
B.
We agree that the state court’s decision on the Holbrook claim was
neither "contrary to" nor an "unreasonable application of" clearly
established federal law. 28 U.S.C. § 2254(d). It is true, of course, that
an accused is "entitled to have his guilt or innocence determined
solely on the basis of the evidence introduced at trial, and not on
grounds of official suspicion, indictment, continued custody, or other
circumstances not adduced as proof at trial." Taylor v. Kentucky, 436
U.S. 478, 485 (1978). Thus, for example, absent an essential state
13
In the alternative, the district court ruled that Hill was barred from
using the videotapes in federal court because the state court had refused
to consider them on the basis of a state procedural rule. Order at 25.
Because we conclude that Hill has failed to make the necessary showing
required to obtain discovery or to obtain an evidentiary hearing in a fed-
eral habeas corpus proceeding, we need not consider whether he was pro-
cedurally barred from using the videotapes as evidence.
HILL v. OZMINT 17
interest, it is inherently prejudicial and unconstitutional to compel a
defendant to wear shackles in the presence of a jury. See Illinois v.
Allen, 397 U.S. 337 (1970).
Applying the principle enunciated in its Taylor decision, the Court
has also concluded that "a roomful of uniformed and armed police-
men might pose [a threat] to a defendant’s chances of receiving a fair
trial." Holbrook v. Flynn, 475 U.S. 560, 570-71 (1986). In Holbrook,
the Court acknowledged that, unlike the use of courtroom shackles,
the presence of identifiable security officers does not inherently preju-
dice a defendant. Id. at 569. The Court recognized that "[j]urors may
just as easily believe that the officers are there to guard against dis-
ruptions emanating from outside the courtroom or to ensure that tense
courtroom exchanges do not erupt into violence." Id. Accordingly, in
ascertaining whether the presence of uniformed law officers during a
criminal trial was so overwhelming as to be unconstitutional, a
reviewing court must assess whether there was "an unacceptable risk
. . . of impermissible factors coming into play." Id. at 570 (internal
quotation marks omitted). Under this standard, a Holbrook claim is
difficult to establish, and a reviewing court must assess "the scene
presented to jurors and determine whether what they saw was so
inherently prejudicial as to pose an unacceptable threat to the defen-
dant’s right to a fair trial." Id. at 572.
In support of his Holbrook claim, Hill relies primarily on the Elev-
enth Circuit’s decision in Woods v. Dugger, 923 F.2d 1454 (11th Cir.
1991). There, the petitioner had been convicted of murdering a prison
guard in Florida. The crime had occurred in a tightly-knit community
that was intimately tied to the prison, and, following the murder, over
five-thousand people signed a petition supporting the execution of
those who kill prison guards. Id. at 1457-58. Moreover, the murder
and the resulting trial received vast publicity. Finally, and most
importantly, approximately forty-five uniformed prison guards were
present in the courtroom during significant portions of Woods’s trial,
for no apparent reason other than to view the proceedings. The Elev-
enth Circuit concluded that, in those circumstances, the courtroom
presence of the prison guards conveyed the unmistakable message
that Woods was guilty and deserved the death penalty. The court thus
ruled that "the pretrial publicity combined with the large number of
18 HILL v. OZMINT
uniformed spectators rose to the level of inherent prejudice, thereby
depriving the petitioner of a fair trial." Id. at 1460.
In Hill’s case, however, the presence of law officers in the court-
room did not "brand" Hill "with an unmistakable mark of guilt." Hol-
brook, 475 U.S. at 571 (internal quotation marks omitted). We
recognize, of course, that the community of Georgetown was greatly
impacted by the horrible death of Major Guerry.14 Likewise, that
crime and Hill’s subsequent trial were highly publicized. That said,
however, there is nothing in the record to indicate that the courtroom
was filled with an array of police officers. Further, the officers present
were dispersed throughout the courtroom. In other words, they were
not positioned so as to create the impression that Hill was dangerous.
See United States v. Elder, 90 F.3d 1110, 1131 (6th Cir. 1996) (deny-
ing relief because marshals "were spread around the courtroom").
Finally, the jurors may well have believed that the officers seated in
the courtroom were waiting to testify. The judge did not sequester the
trial witnesses, and at least seventeen officers testified. In such cir-
cumstances, the presence of officers in the courtroom did not create
a scene that "was so inherently prejudicial as to pose an unacceptable
threat to [the] right to a fair trial." Holbrook, 475 U.S. at 572.15 It nec-
essarily follows that the state court’s decision to deny the Holbrook
claim was neither "contrary to" nor an "unreasonable application of"
clearly established federal law.
14
The members of the Georgetown police force, as well as other law
enforcement personnel in South Carolina, were also impacted by Guer-
ry’s tragic death. Such officers were entitled, absent a Holbrook problem,
to be present at Hill’s trial.
15
Indeed, the facts underlying this claim are materially indistinguish-
able from those before the Court in Holbrook, where no due process vio-
lation was found. 475 U.S. at 472. In Holbrook, the defendants
maintained that they had been denied a fair trial when four uniformed
troopers sat behind the defendants in the first row of the courtroom’s gal-
lery. They contended that the troopers’ presence was an unmistakable
indication that they were guilty. Id. In rejecting their claim, the Court
concluded that there was no evidence that the "four troopers tended to
brand the [defendants] with an unmistakable mark of guilt." Id. (internal
quotation marks omitted).
HILL v. OZMINT 19
Our ruling on this issue, however, does not end the matter. Hill also
contends that, if the current record does not entitle him to relief on
the Holbrook claim, he is entitled to develop the record further. We
thus turn to the Discovery claim, i.e., whether the district court abused
its discretion in denying Hill an evidentiary hearing and in failing to
authorize discovery on the Holbrook claim.
C.
In seeking habeas corpus relief on his Holbrook claim, Hill
requested the district court to conduct an evidentiary hearing or autho-
rize discovery so that he could obtain videotapes of his trial. The dis-
trict court denied the Discovery claim, reasoning that the "intro-
duction of the videotapes would not have aided any relevant evidence
not already contained within the record." Order at 24. Hill now main-
tains that the district court abused its discretion in refusing to conduct
an evidentiary hearing and failing to authorize discovery on his Hol-
brook claim. As explained below, the court was within its discretion
in rejecting the Discovery claim, and we affirm.
To obtain authorization to conduct discovery, Hill is obliged to
"make[ ] a specific allegation that shows reason to believe that [he]
may be able to demonstrate that he is entitled to relief." Quesinberry
v. Taylor, 162 F.3d 273, 279 (4th Cir. 1998). Hill has failed to make
the required showing, however, in that he has failed to provide any
plausible indication that the videotapes he seeks might demonstrate
that he is entitled to relief under Holbrook. In particular, there is noth-
ing in the record indicating that these tapes may reveal a constitution-
ally inappropriate array of uniformed officers in the courtroom during
his trial. Indeed, Hill acknowledges that it is unclear what the video-
tapes would establish. At best, he asserts that one of them might con-
tain an image of the entire courtroom. This assertion is entirely
speculative, however, in that there is no indication that the cameras
taping the trial ever panned the courtroom.
Similarly, Hill has not made the showing required to obtain an evi-
dentiary hearing. In order to secure an evidentiary hearing, Hill was
obliged to allege "facts that, if true, would entitle him to relief." See
McCarver v. Lee, 221 F.3d 583, 598 (4th Cir. 2000) (emphasis
added). Just as he is unable to demonstrate that he is entitled to dis-
20 HILL v. OZMINT
covery, Hill has failed to make the showing necessary to obtain an
evidentiary hearing. In short, he has not pointed to any evidence that,
if believed, would entitle him to relief. In other words, he has not
alleged that such a hearing would resolve facts that, if true, would
establish a due process violation. In these circumstances, the district
court was within its discretion not to conduct an evidentiary hearing.
Absent a specific allegation providing reason to believe that either
an evidentiary hearing or discovery proceedings may demonstrate that
Hill is entitled to relief under Holbrook, we are unable to conclude
that the district court abused its discretion in either denying Hill’s
request to conduct discovery or declining to award him an evidentiary
hearing. See Thomas v. Taylor, 170 F.3d 466, 474-75 (4th Cir. 1999)
(stating that petitioner was not entitled to discovery because he had
failed to show that discovery would reveal that he was entitled to
relief). We therefore affirm the district court on the Discovery claim.
V. The IAC claim
A.
In his IAC claim, Hill maintains that his defense lawyers were inef-
fective in calling Dr. Edward Burt to testify during the trial’s sentenc-
ing phase. At sentencing, Hill’s lawyers sought to show that Hill
suffered from a genetic condition that caused neurochemical imbal-
ances in his brain. Specifically, they contended that Hill suffered from
a genetically-based serotonin deficiency, which resulted in aggressive
impulses. After his arrest and incarceration, Hill had been prescribed
medication that they believed had successfully curbed these impulses.
Thus, according to Hill’s lawyers, the death penalty was not war-
ranted because Hill’s aggressive behavior was genetic (i.e., beyond
his control) and treatable. To this end, Hill’s lawyers presented the
testimony of Dr. Emil Coccaro, who explained the role of serotonin
in brain chemistry, as well as how genetics affects serotonin levels.
Next, the defense called Dr. Bernard Albiniak, a forensic psycholo-
gist, who had performed a series of spinal taps on Hill to monitor his
serotonin levels. Dr. Albiniak opined that Hill suffered from a chronic
serotonin deficiency.
Finally, the defense called Hill’s psychiatrist, Dr. Edward Burt. Dr.
Burt was expected to testify that he had prescribed Prozac to treat
HILL v. OZMINT 21
Hill’s serotonin deficiency, and that Hill had responded favorably to
the medication. Dr. Burt’s testimony sought to establish that Hill’s
serotonin deficiency caused his aggressive behavior, and that a long
history of violence and suicide in his family indicated that his aggres-
sive impulses resulted from a genetic condition. Dr. Burt, however,
apparently suffered a breakdown while on the witness stand. Thus,
while testifying during the trial’s sentencing phase, Dr. Burt had diffi-
culty responding to questions, particularly on cross-examination.
Hill contended in the PCR Court that his defense lawyers should
have known that Dr. Burt was incapable of testifying effectively.
According to Hill, his lawyers also knew that, approximately eight
months before trial, Dr. Burt had been arrested for public intoxication.
Hill maintained that, in light of his lawyers’ knowledge of Dr. Burt’s
problems, the decision to call him as a witness fell below an objective
standard of reasonableness. Further, the decision to present Dr. Burt’s
evidence, Hill maintained, prejudiced his defense because it under-
mined the compelling evidence of Drs. Coccaro and Albiniak.
The state court summarily rejected Hill’s IAC claim. It concluded
that, although Dr. Burt "was not as effective as [Hill] would have
liked," Hill’s lawyers were not constitutionally ineffective in calling
him as a witness because they had properly investigated him and pre-
pared him for trial. PCR Order at 8-9. The district court also denied
relief on the IAC claim, concluding that the state court’s rulings were
neither "contrary to" nor an "unreasonable application of" clearly
established federal law. Order at 41-42. Hill now challenges the dis-
trict court’s ruling. Although we have issued a COA on this claim, we
decline to award Hill any relief.
B.
After full consideration, we agree with the district court that the
state court’s resolution of the IAC claim was neither "contrary to" nor
an "unreasonable application of" clearly established federal law. Our
analysis is guided by the principles of Strickland v. Washington, 466
U.S. 668 (1984), and its progeny. In Strickland, the Supreme Court
explained that, to be successful, an ineffective assistance claim must
demonstrate: (1) that counsel’s performance was deficient; and (2)
that the deficient performance prejudiced the defense. Id. at 687. The
22 HILL v. OZMINT
performance of trial counsel is only "deficient" from a constitutional
standpoint if the "representation [falls] below an objective standard of
reasonableness." Id. at 688. Furthermore, the deficient performance of
a defense lawyer will only result in prejudice if "there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different." Id. at 694.
In this instance, the state court appropriately concluded that the
performance of Hill’s lawyers was not constitutionally deficient. The
record shows that, at trial, Dr. Burt appeared competent and able to
testify. In fact, Hill’s lawyers had "prepped" him for an hour immedi-
ately prior to his testimony. Although they knew of Dr. Burt’s recent
arrest, they believed him to be capable of testifying effectively. As the
magistrate judge concluded, Dr. Burt’s performance on the stand was
"unforeseen and unforeseeable." Magistrate Report at 90. Because
Hill’s lawyers could not reasonably have foreseen that Dr. Burt would
suffer a breakdown on the stand, they were not ineffective in present-
ing him as a witness. See Strickland, 486 U.S. at 689 ("A fair assess-
ment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circum-
stances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.").16 Thus, the state court’s res-
olution of this claim was neither "contrary to" nor an "unreasonable
application of" clearly established federal law.
VI.
Upon full consideration, we reject each of the four claims on which
we issued a COA, and we affirm the judgment of the district court.
AFFIRMED
16
In fact, as the magistrate judge noted, trial counsel may well have
been ineffective had they failed to call Dr. Burt. Magistrate Report at 90;
see also Anderson v. Butler, 858 F.2d 16, 18-19 (1st Cir. 1988) (stating
that failure to call expert amounted to ineffective assistance).