Rocheville v. Moore ( 1999 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    DAVID ROCHEVILLE,
    Petitioner-Appellant,
    v.
    MICHAEL MOORE, Commissioner,
    No. 98-23
    South Carolina Department of
    Corrections; CHARLES CONDON,
    Attorney General, State of South
    Carolina,
    Respondents-Appellees.
    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)
    Argued: January 25, 1999
    Decided: March 16, 1999
    Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.
    _________________________________________________________________
    Dismissed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: Palmer Freeman, Jr., SUGGS & KELLY LAWYERS,
    P.A., Columbia, South Carolina, for Appellant. Donald John Zelenka,
    Assistant Deputy Attorney General, Columbia, South Carolina, for
    Appellees. ON BRIEF: Dorothy L. Fort, Mt. Pleasant, South Caro-
    lina; Allan Levin, COZEN & O'CONNOR, Columbia, South Caro-
    lina, for Appellant. Charles M. Condon, Attorney General, John W.
    McIntosh, Chief Deputy Attorney General, Columbia, South Caro-
    lina, for Appellees.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Appellant David Rocheville filed this petition for habeas corpus
    relief1 from his South Carolina convictions for murdering Alex Hopps
    and James Todd Green and his resulting sentences of life imprison-
    ment and death respectively. See 28 U.S.C.A.§ 2254 (West 1994 &
    Supp. 1998).2 The district court denied the petition. Because we con-
    clude 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.
    _________________________________________________________________
    1 Rocheville named Michael Moore, Commissioner of the South Caro-
    lina 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.
    2 Because Rocheville's petition for a writ of habeas corpus was filed on
    September 3, 1997, after the April 24, 1996 enactment of the Antiterro-
    rism 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).
    2
    I.
    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 com-
    bination 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 secur-
    ity 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 the lobby.
    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 sup-
    ply information to the police concerning the crimes. He provided a
    series of changing accounts of his actions and those of his accom-
    plice, Richard Longworth. Initially, Rocheville claimed that Long-
    worth had murdered both Hopps and Green and was responsible for
    robbing the theater. Eventually, however, Rocheville admitted to hav-
    ing 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
    3
    recommended a sentence of death for Green's murder. Rocheville was
    sentenced to life imprisonment for Hopps' murder.
    The Supreme Court of South Carolina affirmed Rocheville's con-
    victions 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 postconviction 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 Car-
    olina 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.
    II.
    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. Co-op. 1985). 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 acknowl-
    edged that the proceedings were not taking place in Spartanburg,
    where the murders occurred, and asked if Rocheville had any objec-
    4
    tion. 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 court3 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).
    III.
    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.
    _________________________________________________________________
    3 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).
    5
    
    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 indi-
    gent but never appointed counsel for him or made him aware that he
    was entitled to have attorneys appointed. Rather, Rocheville was rep-
    resented 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 fail-
    ing 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 addi-
    tional appointed counsel lack merit.
    IV.
    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
    6
    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 argu-
    ment 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 correct-
    ness 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 attor-
    ney 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.
    V.
    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 fail-
    ing to adequately voir dire the jury to uncover possible prejudice
    7
    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.4
    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 reason-
    ableness" and "that there is a reasonable probability that, but for coun-
    sel'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 defer-
    ential." 
    Id. at 689
    . Indeed, a strong presumption is afforded that coun-
    sel'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 chal-
    lenged 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 attor-
    ney 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 confi-
    dence 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 fun-
    damentally unfair or unreliable." Lockhart v. Fretwell, 
    506 U.S. 364
    ,
    369 (1993).
    _________________________________________________________________
    4 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 jus-
    tice to excuse his default, the claims are treated as defaulted here. See
    Gray v. Netherland, 
    518 U.S. 152
    , 161-62 (1996).
    8
    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),5 this court must determine whether the ruling against
    Rocheville constituted an unreasonable application of clearly estab-
    lished 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 con-
    text, review involves a determination of whether"the state court[ has]
    decided the question by ... applying [Strickland] in a manner that rea-
    sonable 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 selec-
    tion. 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, submit-
    ting numerous newspaper articles and video newscasts from the sur-
    rounding area relating to the murders, the victims, and Rocheville's
    coconspirator, Longworth. Further, trial counsel conducted an ade-
    quate voir dire. Over four days, counsel conducted extensive individ-
    ual 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
    _________________________________________________________________
    5 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 adjudi-
    cated on the merits in State court proceedings unless the adjudi-
    cation 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).
    9
    actions of trial counsel about which Rocheville complains. Rocheville
    has failed to demonstrate that these rulings were unreasonable.
    VI.
    During the guilt phase of Rocheville's trial, a police detective testi-
    fied 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 testi-
    mony 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 unreasonable.
    VII.
    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, rec-
    ognizing that he did not pursue this claim on direct appeal, Rocheville
    10
    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 seek-
    ing 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 fail-
    ure 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
    .
    VIII.
    Finally, Rocheville contends that his trial counsel was constitution-
    ally 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 mur-
    ders 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 dem-
    onstrate 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 reli-
    able. 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 con-
    fessed 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
    11
    his own investigatory work and that in light of the trial strategy, there
    was no need for experts in the areas identified by Rocheville.
    The PCR court that heard these claims denied relief, reasoning that
    trial counsel's strategy was sound and did not amount to unprofes-
    sional 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
    .6
    IX.
    We conclude that Rocheville has failed to make a substantial show-
    ing of the denial of a constitutional right. Therefore, we deny
    Rocheville a certificate of appealability and dismiss.
    DISMISSED
    _________________________________________________________________
    6 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.
    12