Longworth v. Ozmint ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICHARD LONGWORTH, 
Petitioner-Appellant,
v.
JON E. OZMINT, Commissioner,
South Carolina Department of  No. 04-4
Corrections; HENRY MCMASTER,
Attorney General, State of South
Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Sol Blatt, Jr., Senior District Judge.
(CA-02-744-3-08BC)
Argued: June 3, 2004
Decided: July 28, 2004
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Michael and Judge Gregory joined.
COUNSEL
ARGUED: David Grant Belser, BELSER & PARKE, Asheville,
North Carolina, for Appellant. Donald John Zelenka, Chief Deputy
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
2 LONGWORTH v. OZMINT
SOUTH CAROLINA, Columbia, South Carolina, for Appellees. ON
BRIEF: Tanya L. Davis, Blue Hill, Maine, for Appellant. Henry Dar-
gan McMaster, Attorney General, John W. McIntosh, Chief Deputy
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
SOUTH CAROLINA, Columbia, South Carolina, for Appellees.
OPINION
NIEMEYER, Circuit Judge:
In 1991, Richard Longworth was convicted in a South Carolina
state court for the murders of Alex Hopps and James Greene, employ-
ees of a Spartanburg, South Carolina movie theater that Longworth
and an associate robbed. Longworth was sentenced to death. Follow-
ing direct appeals and petitions for post-conviction relief in state
courts, Longworth filed this petition in the district court for a writ of
habeas corpus, under 28 U.S.C. § 2254, raising 19 grounds in support
of his petition. The district court denied Longworth’s petition but
granted a certificate of appealability with respect to ground 4 (that the
State presented "knowingly false" testimony of a deputy sheriff),
ground 11 (that one of Longworth’s attorneys had an actual conflict
of interest), ground 15 (that the State failed to disclose to Longworth
exculpatory evidence of a deputy sheriff who believed that before trial
Longworth had expressed remorse), and ground 19 (that Longworth
was, for numerous reasons, deprived of the effective assistance of
counsel).
We affirm. We conclude, with respect to grounds 4, 11, and 15,
that the state court’s post-conviction relief decision rejecting these
claims was neither contrary to clearly established federal law, as
determined by the U.S. Supreme Court, nor involved an unreasonable
application of that law, and that the state court’s decision did not
involve an unreasonable determination of the facts before it. And with
respect to ground 19, we conclude that it was procedurally defaulted.
I
In the evening of January 7, 1991, Longworth and his friend David
Rocheville decided, while driving around in their minivan, to rob the
LONGWORTH v. OZMINT 3
WestGate Mall Cinema in Spartanburg, South Carolina. After enter-
ing 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. When they
encountered an usher, Alex Hopps, walking down the hallway, Long-
worth 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 shoulder holster.
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 Greene, 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. After
retrieving 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.
Longworth and Rocheville were arrested the next day, after
Rocheville had led law enforcement officers to Greene’s body. After
Longworth was arrested, he provided officers with a detailed state-
ment 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. The South Carolina Supreme Court affirmed the con-
victions and sentences on direct appeal. State v. Longworth, 438
S.E.2d 219 (S.C. 1993); State v. Rocheville, 425 S.E.2d 32 (S.C.
1993). Longworth’s petition to the U.S. Supreme Court was denied.
Longworth v. South Carolina, 513 U.S. 831 (1994).
4 LONGWORTH v. OZMINT
In December 1994, Longworth filed an application for post-
conviction relief in the Spartanburg County Court of Common Pleas,
ultimately raising more than 30 grounds for relief. The state post-
conviction court ("State PCR Court") permitted discovery and held a
lengthy evidentiary hearing, after which it requested supplemental
briefing from both parties and directed the State to submit a proposed
order. The State PCR Court denied all of Longworth’s claims for
relief and substantially adopted the State’s proposed 132-page order.
Longworth v. Evatt, C.A. No. 95-CP-42 0014 (S.C. Ct. C. P. Aug. 3,
2000). The South Carolina Supreme Court denied Longworth’s peti-
tion for review, and the U.S. Supreme Court denied Longworth’s peti-
tion for a writ of certiorari. Longworth v. South Carolina, 536 U.S.
928 (2002).
Longworth then filed the petition in this case, raising 19 grounds
for relief. On 15 of the grounds, Longworth did not object to the mag-
istrate judge’s recommendations to deny the claims, and, as a result,
the district court adopted the magistrate judge’s recommendations and
denied the claims. Longworth v. Ozmint, 302 F. Supp. 2d 535, 542
(D.S.C. 2003). On the remaining four grounds (grounds 4, 11, 15, and
19), the court held that ground 19 (Longworth’s general claim for
ineffective assistance of counsel) was procedurally defaulted and that
the remaining three grounds lacked merit. Id. at 542-69. With respect
to all four grounds, the district court granted a certificate of appeala-
bility pursuant to 28 U.S.C. § 2253(c). Longworth v. Ozmint, 302 F.
Supp. 2d 569, 575 (D.S.C. 2004). This appeal followed.
II
In his most substantial argument (ground 11), Longworth contends
that he was denied his Sixth Amendment guarantee of effective assis-
tance of counsel because his attorney Hubert Powell represented both
Longworth and Longworth’s parents and therefore labored under an
actual conflict of interest that adversely affected his representation.
Longworth contends:
The conflict was manifested by: 1) Powell’s failure to dis-
close to co-counsel, defense experts or the jury mitigation
evidence concerning family alcoholism and turmoil, which
would have adversely affected his clients, petitioner’s par-
LONGWORTH v. OZMINT 5
ents, but would have benefitted petitioner, and [Powell’s
failure to] develop mitigation evidence, 2) Powell’s duty to
protect the parents’ income stream for their benefit and his
own benefit, by concealing evidence of [Longworth’s] par-
ents[’] alcoholism and marital discord[,] which would have
cost the parents their jobs, 3) Powell’s duty to protect the
parents as material witnesses and/or as suspects, and 4) all
other relevant facts . . . .
Following Longworth’s arrest, his parents hired Powell to represent
Longworth in his capital murder trial, agreeing to pay Powell $12,000
in attorneys fees. On Powell’s request for additional resources with
which to represent Longworth, the state trial court appointed private
attorney Andrew J. Johnston and the Spartanburg County Public
Defender Office as additional counsel to "represent Richard W. Long-
worth . . . along with Hubert H. Powell, Jr. of the Spartanburg County
Bar who[ ] has been retained by the parents of Richard W. Long-
worth." (Emphasis added). Three days later, however, the same trial
court amended its order on the initiation of the Public Defender
Office to "clarify" that "Hubert H. Powell, Jr. of the Spartanburg
County Bar has the position of attorney for the parents of the Defen-
dant, Richard W. Longworth." This clarification was initiated without
any request by Longworth, his parents, or Powell and without their
knowledge. The apparent purpose of seeking the revised order was to
make Longworth eligible for public funds to support his defense.
According to Powell, he only learned of the amended order shortly
before trial. He nevertheless continued to participate as a member of
the defense team for Longworth and continued to prepare for trial,
acting as a liaison with Longworth’s family and doing substantial
work on the development of mitigation evidence for the sentencing
phase of the trial.
At the State PCR hearing, Longworth’s mother testified that she
had told Powell about alcohol abuse and domestic violence within the
family and that she did not want such evidence to come out during
sentencing "unless it was absolutely necessary," for fear that her fos-
ter children would be taken away and Longworth’s father might lose
his job. Longworth accordingly contended in the State PCR Court that
the mitigation evidence was incomplete and inadequate. He pointed
specifically to the testimony of Dr. David Raskin, a forensic psychia-
6 LONGWORTH v. OZMINT
trist, who explained in a deposition that his evaluation did not include
certain information about domestic problems between Longworth’s
parents and that he had assumed that Longworth had grown up in "a
stable, caring environment." According to Raskin, information about
alcohol abuse and violence "would have changed dramatically the
way [he] did [his] interview" of Longworth and that he would have
presented the new information about family environment to the jury.
As revealed during the PCR hearing, however, it turned out that it
was co-counsel Andrew Johnston who provided Dr. Raskin with the
relevant social history report on which Raskin relied. Johnston testi-
fied that he was aware of Longworth’s social history and that if he
failed to provide it to Dr. Raskin, it was an oversight. Even though
the social history report included little detail about drinking or marital
problems in Longworth’s household — Johnston conceded that he did
not believe that the social worker did "that great of [a] job" in prepar-
ing the report — Mrs. Longworth testified that she did tell the social
worker about the marital problems and excessive drinking. It was also
Johnston, not Powell, who told Raskin that Longworth "came from a
middle class background, that his family [members] were nice people,
that they may have had some problems with alcohol abuse at times
and there may have been a bit of marital discord in the house at times,
but [that] the family history [was] unremarkable as far as explaining
what happened later." And it was Johnston who led the development
of Longworth’s mitigation defense strategy. He testified at the State
PCR hearing that he did not think that Longworth’s family history
was a key point to the case. Johnston explained that he made a strate-
gic decision to focus the defense on (1) Longworth’s history of sub-
stance abuse and intoxication at the time of the murders, and (2)
Longworth’s lesser role and Rocheville’s influence over Longworth.
Following the State PCR hearing, the State PCR Court found that
Longworth’s parents hired Powell to represent Longworth and
entered into a contract for that purpose. The court found that after he
was retained, Powell contacted other lawyers for advice in handling
capital cases and for the purpose of putting together a defense team.
The court also found that after Powell spoke with Andrew Johnston
and members of the Public Defender Office, he prepared a petition for
a declaration of indigency and appointment of counsel and presented
it to the trial court. Accordingly, the trial court appointed Andrew
LONGWORTH v. OZMINT 7
Johnston and the Public Defender Office to represent Longworth,
"along with" Powell. The State PCR Court found that subsequently,
without Powell’s apparent knowledge, Charles E. Sanders, a deputy
Public Defender, prepared an amended order that included the state-
ment that Powell "has the position of attorney for parents of the
Defendant." The State PCR Court found, however, that Powell did not
know of Sanders’ initiative or the revised order and that when he did
learn of it, it did not affect his representation of Longworth. The court
noted that Powell considered Richard Longworth "his ‘true client’"
and that he continued to represent Longworth, meeting with him 44
separate times and "probably more." The court concluded, "It is
undisputed that Powell considered his actual client to be [Longworth],
and his interests were solely directed to saving his life." With respect
to any potential differences of opinion on Powell’s performance, the
State PCR Court found "attorney Powell’s testimony persuasive that
he did not prevent any pertinent information of family background
from being provided the defense-retained social worker, Dorothy Har-
mon, in order for her to complete a social history of [Longworth]."
The State PCR Court concluded:
[T]here was no actual conflict interest in attorney Powell’s
role in the defense of Richard Longworth. Further, Powell’s
role in the representation of [Longworth] did not adversely
affect the representation by attorneys Johnston or Dillard.
Powell’s role and interests did not diverge with respect to a
material fact or legal issue or course of action on [Long-
worth’s] behalf. There is no credible evidence which tends
to establish that any of [Longworth’s] defense counsel
engaged in any course of conduct which was designed to
protect the Longworth family to the detriment of [Long-
worth’s] interest. The evidence is persuasive that at all times
attorney Powell considered the applicant his only client and
his only obligation to [Longworth’s] parents was to present
the best defense possible for their son.
Based on the State PCR Court record, the district court concluded
that there was no actual conflict of interest and that, although there
was conflicting evidence as to whether family information was pre-
vented from being disclosed, the State PCR Court’s credibility deter-
minations should not be disturbed.
8 LONGWORTH v. OZMINT
We review the district court’s decision de novo, applying the same
standard that the district court was required to apply. See Hunt v. Lee,
291 F.3d 284, 289 (4th Cir. 2002). Under 28 U.S.C. § 2254(d), a fed-
eral court must deny a state prisoner’s habeas application unless the
state court’s adjudication of a claim "resulted in a decision" that was
either (1) "contrary to, or involved an unreasonable application of,
clearly established Federal law," or (2) "based on an unreasonable
determination of the facts" before the state court.1
A defendant can prove a Sixth Amendment violation based on
counsel’s conflict of interest by "demonstrat[ing] that an actual con-
flict of interest adversely affected his lawyer’s performance." Cuyler
v. Sullivan, 446 U.S. 335, 348 (1980); see also Mickens v. Taylor, 535
U.S. 162, 171 (2002); Strickland v. Washington, 466 U.S. 668, 692
(1984). To prove an actual conflict of interest, a defendant "must
show that [his] interests diverge[d] with respect to a material factual
or legal issue or to a course of action." Gilbert v. Moore, 134 F.3d
642, 652 (4th Cir. 1998) (en banc) (internal quotation marks and cita-
tion omitted); see also United States v. Tatum, 943 F.2d 370, 376 (4th
Cir. 1991) (stating that an actual conflict adversely affecting represen-
tation can include an attorney’s action taken on behalf of one client
that is necessarily adverse to the defense of another or an attorney’s
failure to take action on behalf of one because it would adversely
affect the other).
Longworth relies heavily on the revised order entered by the state
trial court that indicated that Powell had "the position of attorney for
the parents of the Defendant." But he provides no explanation for the
revised order other than what the record shows, i.e., that an attorney
in the Public Defender Office, on his own initiative, sought the revi-
sion in order to make Longworth eligible for public funds to support
his defense, even though there was no change in circumstances, and
neither Powell nor Longworth nor his parents knew of the revised
order when made. Indeed, according to the evidence credited by the
1
Although we have indicated that we "do not applaud" a state court’s
practice of substantially adopting the prosecution’s proposed memoran-
dum and order, the state court’s decision still merits the deferential
review required by § 2254(d). Bell v. Ozmint, 332 F.3d 229, 233 (4th Cir.
2003).
LONGWORTH v. OZMINT 9
State PCR Court, Powell always thought of himself as a member of
Longworth’s defense team solely dedicated to the defense of Long-
worth, and he continued to work on Longworth’s defense. The State
PCR Court pointed out that the parents had no interest that needed
representation; they were not charged and were not otherwise in need
of counsel. The only explanation in the record for the language used
by the state court in its revised order appointing counsel was to create
a legal fiction to protect financing for Longworth’s defense team,
which included Powell. In view of this record, we conclude that the
State PCR Court’s conclusion finding no conflict of interest was not
an unreasonable determination of the facts.
Additionally, even if, contrary to the findings of the State PCR
Court, Longworth’s view of the record were to be accepted, he still
was not able to demonstrate how anything that Powell did on his
behalf compromised his interest or prejudiced his representation.
While Longworth points to the testimony of Dr. Raskin as evidence
of Powell’s reluctance to bring forth mitigating factors, it was in fact
Powell’s co-counsel Andrew Johnston who worked with Dr. Raskin
and took responsibility for whatever was given or withheld from Dr.
Raskin. In addition, Johnston acknowledged that he knew the infor-
mation but concluded, as a defense strategy, that Longworth’s family
history was not a key point in Longworth’s defense. Rather, Johnston
wanted to focus on Longworth’s personal history of substance abuse
and intoxication at the time of the murders and his purportedly lesser
role in the criminal conduct. Thus, on the issue of prejudice, the State
PCR Court’s conclusion that any conflict did not adversely affect
Longworth’s representation was not an unreasonable determination of
the facts.
III
Longworth also contends that the state trial court denied him due
process in refusing to declare a mistrial after the State introduced
"knowingly false or misleading testimony" from Spartanburg County
Chief Deputy Sheriff James Murray, who testified that Longworth
had told interrogating officers that he knew what was going to happen
before Rocheville shot Alex Hopps and did nothing to stop him. See
United States v. Agurs, 427 U.S. 97, 103 (1976) ("[A] conviction
obtained by the knowing use of perjured testimony is fundamentally
10 LONGWORTH v. OZMINT
unfair, and must be set aside if there is any reasonable likelihood that
the false testimony could have affected the judgment of the jury"
(footnotes omitted)); Napue v. Illinois, 360 U.S. 264, 269 (1959).
Knowingly false testimony of a law enforcement officer is imputable
to the prosecution, see Boyd v. French, 147 F.3d 319, 329 (4th Cir.
1998), and Longworth contends that in this case such testimony was
material because the State had the burden of proving that even though
Longworth was not the triggerman, he intended to kill Hopps or had
a reckless disregard for human life. See Tison v. Arizona, 481 U.S.
137, 157-58 (1987). Accordingly, Longworth argues that a new trial
is required to satisfy due process. See Giglio v. United States, 405
U.S. 150, 153-54 (1972).
Deputy Murray, who participated in the post-arrest interrogation of
Longworth, took notes of the interrogation and prepared a statement
for Longworth to sign. Even though Longworth refused to sign the
statement, opting to have the advice of an attorney, Deputy Murray
read the statement during trial as an accurate representation of what
Longworth had said. After completing presentation of the statement,
the State asked Deputy Murray whether he recalled any other remarks
by Longworth that were not included in the statement. Deputy Murray
replied that Longworth "had mentioned . . . that when he had taken
Alex [Hopps] outside and put him over the bar, he observed
Rocheville raising the gun up to Alex’s head, and he did nothing to
stop him. He just watched him." The State then asked, "Did [Long-
worth] say he knew what was happening?" Murray replied, Long-
worth "said he knew what was going to happen. . . . But he did
nothing to stop him." At that point, Longworth’s counsel objected
because the defense had never been made aware that Longworth had
stated that he knew what was going to happen and such a statement
was potentially important.
Following the objection, the court questioned Deputy Murray out-
side of the jury’s presence, and Deputy Murray told the court that the
alleged statement was a paraphrase, not a "quote per se." The court
asked Deputy Murray directly, "Did [Longworth] say I knew what
was gonna happen or is that your interpretation of the statement?"
Deputy Murray responded, "I think that from what he said that was
my interpretation of what he meant." The court emphasized the
important difference between a statement that Longworth saw
LONGWORTH v. OZMINT 11
Rocheville point the gun yet did nothing to stop him and a statement
that he knew what was going to happen, and the court determined
from Deputy Murray that the latter statement was not reflected in the
deputy’s notes. Accordingly, after recalling the jury, the court gave
the following curative instruction to the jury:
You had heard testimony from the statement by Chief Mur-
ray that the defendant says I saw Rocheville with the gun,
and I did nothing to stop it. That’s part of the statement. The
solicitor went on to say did Longworth say I knew what, he
knew what was going to happen. And Chief Murray says
yes, he says he knew what was going to happen. And that’s
not true. And that’s not in the statement.
And I have conferred with Chief Murray here in this court-
room on the record. And that is his interpretation. That is
not a statement by the defendant. I must ask you to disregard
that, to wipe that comment from your mind. It is [an]
improper thing to be injected into this trial, and you disre-
gard it entirely please. It is so important.
The only statement made was I saw Rocheville, and I did
nothing to stop him. And that’s the end of it as best as I can
tell. Disregard anything further from Chief Murray on that
point as I have outlined to you.
On direct appeal, the South Carolina Supreme Court held that the
trial court’s "curative instruction was clearly sufficient to ensure the
jury did not attribute Chief Murray’s statement to [Longworth]."
Longworth, 438 S.E.2d at 225.
During the State PCR hearing, the state solicitor testified that he
had met with Deputy Murray and another witness about one week
before trial. At that time, Deputy Murray told him that Longworth
said "something like" he knew or intended that the killings would take
place. According to the solicitor, because such a statement was not
recorded in Deputy Murray’s notes, the solicitor told Deputy Murray
that it was not sufficiently reliable and would not be used at trial. The
solicitor testified that he was surprised at trial when Deputy Murray
testified that Longworth said he knew what was going to happen. The
12 LONGWORTH v. OZMINT
State PCR Court concluded that Deputy Murray’s testimony at trial
was not false, finding that his statement revealed his "honest, but
vague, recollection that Longworth indicated to him during the inter-
rogation that he knew what was going to happen, but was unable to
recall the precise words used." The State PCR Court also concluded
that the state trial court’s curative instruction cured any prejudice that
may have resulted from Deputy Murray’s statement.
We agree with the district court’s rejection of Longworth’s conten-
tion that habeas relief is warranted on this ground. The State PCR
Court acted reasonably in concluding from the facts before it that
Deputy Murray’s statement was not false. Longworth incorrectly
insists that the state trial court explicitly found that the statement was
knowingly false. The trial court in fact found that Longworth did not
make the alleged statement but that it was Deputy Murray’s "interpre-
tation" of Longworth’s statement. As the district court observed,
"There is a clear distinction between (1) knowing a statement was not
made but testifying that it was made, and (2) honestly believing that
the statement was implicit in the words spoken but, because it was
based on interpretation, the statement is inadmissible." Longworth,
302 F. Supp. 2d at 557. At trial, when questioned by the state trial
court, Deputy Murray stated that, although "not verbatim" and not "a
quote per se," the statement he attributed to Longworth was Deputy
Murray’s interpretation of Longworth’s words. At the State PCR
hearing, Deputy Murray testified repeatedly that his response at trial
was a true statement, that it was what he thought Longworth meant
(e.g., "What I was saying there was that I couldn’t recall exactly what
was being said [by Longworth, but that] [w]hatever he said, that’s
what I thought he meant"). The State PCR Court credited Deputy
Murray’s testimony on this matter, and we conclude that that was not
an unreasonable determination of the facts.
In addition, to protect any potential prejudice, the state trial court
gave a forceful curative instruction that instructed the jury not to con-
sider the statement and told them that "that’s not in the statement"
attributable to Longworth. "The only statement made [by Longworth]
was I saw Rocheville, and I did nothing to stop him." The trial court
also emphasized to the jurors that it was "so important" that they dis-
regard the challenged testimony and that it was not Longworth’s
statement but Deputy Murray’s interpretation. Reviewing this on
LONGWORTH v. OZMINT 13
appeal, the South Carolina Supreme Court concluded that "the cura-
tive instruction was clearly sufficient to ensure the jury did not attri-
bute Chief Murray’s statement to [Longworth]." Longworth, 438
S.E.2d at 225. And we conclude that the South Carolina Supreme
Court’s determination was not an unreasonable one.
IV
Longworth next contends that the State violated his rights under
Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose Deputy
Murray’s mental impression that Longworth expressed remorse dur-
ing his post-arrest interview. Specifically, Deputy Murray testified at
trial that Longworth slammed his fist on the table during the interro-
gation and exclaimed, "[M]y god, we killed those kids for fifteen hun-
dred dollars." When cross-examined, Deputy Murray testified that he
did not know if Longworth’s statement was one of remorse. Later,
however, during his deposition for the State PCR proceeding, Deputy
Murray testified that he thought Longworth was remorseful, based on
Longworth’s action and statement, but that Longworth "may’ve just
been mad that he got caught." Longworth contends that Deputy Mur-
ray’s statement of his mental impression about Longworth’s remorse
qualified as Brady material that the prosecution was required to pro-
vide to him for use at trial.
We conclude that this argument lacks any merit. Although Long-
worth relies on Strickler v. Greene, 527 U.S. 263, 282 (1999) (refer-
ring to notes and letters recounting a witness’ impression of an
episode as "trivial," in contrast to her subsequent testimony that the
episode was "terrifying"), to support the proposition that Brady
applies to a witness’ mental impressions, the undisclosed impressions
in Strickler were contained in written documents. Here, Longworth’s
statement was disclosed to the defense, and not only was Deputy
Murray’s perception of the statement unrecorded, his perception was
tentative (i.e., Longworth "may’ve just been mad that he got caught").
There is certainly no "clearly established Federal law, as determined
by the Supreme Court of the United States," that requires the State to
disclose such mental impressions as Brady material. See 28 U.S.C.
§ 2254(d).
14 LONGWORTH v. OZMINT
V
Finally, Longworth contends that he was deprived of the effective
assistance of counsel at trial for numerous reasons in addition to the
conflict of interest discussed in Part II, including: the failure to dis-
close Longworth’s alleged cocaine use at the time of the murders; the
failure to further investigate Longworth’s background; the failure to
provide to an expert witness evidence of Longworth’s cocaine use and
his family history; the presentation of two witnesses who offered
some allegedly damaging testimony; and counsels’ alleged incompe-
tence and inexperience. While we would find no merit in any of these
contentions, we conclude that they are procedurally defaulted as a
result of Longworth’s failure to raise them in his petition for certiorari
to the South Carolina Supreme Court for review of the State PCR
Court’s decision.
A habeas petitioner in state custody generally must exhaust state
court remedies, see 28 U.S.C. § 2254(b), and a federal habeas court
may not review unexhausted claims that would be treated as proce-
durally barred by state courts — absent cause and prejudice or a fun-
damental miscarriage of justice. See Clagett v. Angelone, 209 F.3d
370, 378 (4th Cir. 2000); Mackall v. Angelone, 131 F.3d 442, 445 (4th
Cir. 1997) (en banc). This exhaustion requirement "reduces friction
between the state and federal court systems by avoiding the unseem-
[liness] of a federal district court’s overturning a state court convic-
tion without the state courts having had an opportunity to correct the
constitutional violation in the first instance." O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999) (internal quotation marks and citation omit-
ted). Thus, "state prisoners must give the state courts one full opportu-
nity to resolve any constitutional issues by invoking one complete
round of the State’s established appellate review process" — which
includes "petitions for discretionary review when that review is part
of the ordinary appellate review procedure in the State." Id. at 845,
847. And this opportunity must be given by fairly presenting to the
state court "both the operative facts and the controlling legal princi-
ples" associated with each claim. Baker v. Corcoran, 220 F.3d 276,
289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th
Cir. 1997) (internal quotation marks omitted). In other words, the
ground must "be presented face-up and squarely." Mallory v. Smith,
LONGWORTH v. OZMINT 15
27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation
marks omitted).
In his petition to the South Carolina Supreme Court, Longworth’s
only ineffective-assistance ground (aside from his conflict-of-interest
claim) did not address the issues raised in the habeas petition filed in
the district court, but instead concerned his counsels’ alleged defi-
ciency in responding to the trial judge’s statement to Longworth
regarding the scope of cross examination should Longworth have
chosen to testify. Longworth argues that "[t]he heart of the
[ineffective-assistance] claim based on conflict and the general
[ineffective-assistance] claim are the same — trial counsel failed to
develop and present substantial available mitigating evidence that was
material to punishment." We do not agree. Indeed, Longworth himself
conceded before the district court that the general ineffective-
assistance claim was not raised in his petition for certiorari filed in the
South Carolina Supreme Court. Because Longworth’s general
ineffective-assistance claim made here and the operative facts now
advanced in support of that claim were not presented to the South
Carolina Supreme Court and because that court would now treat the
claim as procedurally barred, see S.C. Code Ann. § 17-27-100; S.C.
App. Ct. R. 203, 227, we conclude that we may not now review the
claim.2
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
2
To show cause and prejudice, Longworth requests that we reconsider
our precedent holding that ineffective assistance of state habeas counsel
cannot excuse procedural default given that there is no Sixth Amendment
right to effective assistance of counsel in state habeas proceedings. See
Mackall v. Angelone, 131 F.3d 442, 449 (4th Cir. 1997) (en banc). Of
course, we are not free to do so. See Jones v. Angelone, 94 F.3d 900, 905
(4th Cir. 1996).