Shuler v. Ozmint , 209 F. App'x 224 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7
CALVIN ALPHONSO SHULER,
Petitioner - Appellant,
versus
JON OZMINT, Commissioner, South Carolina
Department of 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. Margaret B. Seymour, District Judge.
(3:05-cv-01595-MBS)
Argued: October 26, 2006 Decided: December 11, 2006
Before WILKINS, Chief Judge, and WIDENER and DUNCAN, Circuit
Judges.
Affirmed by unpublished opinion. Chief Judge Wilkins wrote the
opinion, in which Judge Widener and Judge Duncan joined.
ARGUED: Gerald Alan Kelly, Varnville, South Carolina; Francis J.
Cornely, Charleston, South Carolina, for Appellant. Samuel
Creighton Waters, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellees. ON BRIEF: Henry Dargan
McMaster, Attorney General, John W. McIntosh, Chief Deputy Attorney
General, Donald J. Zelenka, Assistant Deputy Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
WILKINS, Chief Judge:
Calvin Alphonso Shuler appeals an order of the district court
denying his petition for a writ of habeas corpus.1 See 28 U.S.C.A.
§ 2254 (West 1994 & Supp. 2006). Shuler seeks relief from his
conviction and sentence of death for the murder of James Brooks.
For the reasons set forth below, we affirm.
I.
At 10:45 a.m. on December 3, 1997, three employees of Anderson
Armored Car--Brooks, Alton Amick, and Sherman Crozier--traveled in
a company truck to the First National Bank of Harleyville, South
Carolina. Amick and Crozier were in the cab of the truck, while
Brooks was in the back. Upon arrival, Amick opened the driver-side
door and was immediately confronted by a man wearing fatigues, a
ski mask, and gloves, who was pointing a pistol at him. An assault
rifle was slung over the man’s shoulder.
The man ordered Amick and Crozier out of the truck. He
entered the cab of the truck and engaged in a gun battle with
Brooks. After the gunfire stopped, the man threw his pistol out a
window and drove away at a high rate of speed. Shortly thereafter,
law enforcement officers found the abandoned truck, with Brooks in
the back, dead from multiple gunshot wounds. Police dogs followed
1
Shuler named Jon Ozmint, Commissioner of the South Carolina
Department of Corrections, and Henry McMaster, Attorney General of
South Carolina, as Respondents. For ease of reference, we will
refer to Respondents as “the State.”
3
a scent trail from the truck and located an SKS assault rifle, a
bloody ski mask, and other items.
Investigation revealed that the pistol was registered to
Shuler’s mother and that the rifle had been purchased by Demond
Jones, the fiancé of Shuler’s cousin. Jones had purchased the
weapon at Shuler’s request, in order to satisfy a debt.
Shuler was questioned and, during a polygraph examination,
confessed to the murder. He indicated that he had previously
worked for Anderson Armored Car and thus knew how many employees
would be in the truck and how they would be armed. He had planned
the robbery two weeks in advance and had lain in wait under a house
adjacent to the bank.
Upon Shuler’s indictment for murder, armed robbery, and
kidnapping, Marva Hardee-Thomas was appointed as defense counsel.
She contacted Dr. Donna Schwartz-Watts, a forensic psychiatrist.
Dr. Schwartz-Watts conducted an evaluation, during which Shuler
informed her that he had used anabolic steroids. (Dr. Schwartz-
Watts had noticed Shuler’s physique and recalled judging him in a
previous bodybuilding competition.) Shuler also relayed that he
had gotten into a fight with a coworker and had been shot, and that
his parents had recently died. Shuler blamed these events on
“himself and his steroid use.” J.A. 325. Shuler also told
Dr. Schwartz-Watts that he had begun using cocaine base shortly
before the murder.
4
After Dr. Schwartz-Watts had completed her evaluation, the
prosecution filed a notice of intent to seek the death penalty.
Because Ms. Hardee-Thomas was not qualified under South Carolina
law to serve as counsel in a capital case, Shuler was appointed new
counsel, Norbert Cummings and Doyle Mark Stokes. Because Cummings
and Stokes were concerned about a “taint[]” from the involvement of
unqualified counsel, id. at 875, they elected to engage a new
psychiatric expert, Dr. Harold Morgan. However, counsel spoke with
Dr. Schwartz-Watts and obtained her report.
Dr. Morgan examined Shuler on several occasions and
subsequently testified at a pre-trial competency hearing.
Dr. Morgan stated that during his examinations, Shuler claimed to
be suffering from total memory loss dating from August 13, 1998,
when he knocked his head on a concrete floor as prison guards
attempted to subdue him for the purpose of obtaining a blood
sample. Based on the symptoms and behaviors exhibited by Shuler,
Dr. Morgan concluded that Shuler’s memory loss was probably
feigned. On cross-examination, Dr. Morgan expressed general
agreement with the testimony of prosecution experts that other
behaviors exhibited by Shuler--including the recitation of military
cadences during examinations and claims of hallucinations--were
likely attempts to feign mental illness.
5
Shuler was declared competent and was convicted by a jury of
murder, armed robbery, and kidnapping. The jury subsequently
imposed a sentence of death.
After Shuler’s convictions and sentence were affirmed on
appeal, see State v. Shuler, 545 S.E.2d 805 (S.C.), cert. denied,
534 U.S. 977 (2001), Shuler sought post-conviction relief (PCR) in
state court. As is relevant here, Shuler asserted first that trial
counsel were constitutionally deficient for (a) failing to
investigate Shuler’s history of steroid use and to present this
history, along with testimony regarding the psychological effects
of steroid use, as evidence in mitigation; (b) failing to
investigate and present evidence in mitigation that Shuler had
ingested cocaine base immediately prior to the offense; and (c)
failing to inform Dr. Morgan that Shuler had attempted suicide
hours before the offense. Second, Shuler maintained that the
prosecution knowingly presented perjured testimony by state witness
Demond Jones and failed to provide defense counsel with exculpatory
information regarding benefits received by Jones in exchange for
his testimony. The PCR court denied relief on the merits after an
evidentiary hearing.
Shuler thereafter sought federal habeas relief, asserting the
claims listed above. The district court denied relief but granted
a certificate of appealability. This appeal followed.
6
II.
Shuler first maintains that trial counsel were ineffective in
a number of respects with regard to the penalty phase of his trial.
In order to establish that his constitutional right to the
effective assistance of counsel was violated, Shuler must make a
twofold showing. See Wiggins v. Smith, 539 U.S. 510, 521 (2003).
First, he must demonstrate that his attorneys’ “representation fell
below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 688 (1984). “Judicial scrutiny of
counsel’s performance must be highly deferential,” and “every
effort [must] be made to eliminate the distorting effects of
hindsight ... and to evaluate the [challenged] conduct from
counsel’s perspective at the time.” Id. at 689.
Shuler must also demonstrate that he was prejudiced by his
attorneys’ ineffectiveness, i.e., “that 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 the context of an ineffective assistance claim related to
counsel’s performance during the penalty phase of a capital trial,
the question is whether the habeas petitioner can demonstrate a
reasonable probability that at least one juror would have voted to
impose a sentence of life imprisonment. See Buckner v. Polk, 453
F.3d 195, 203 (4th Cir. 2006).
7
Review of Shuler’s ineffective assistance of counsel claims is
additionally constrained by the provisions of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214. Pursuant to that act, we review the decision of the district
court de novo, but we defer to the decision of the state court
insofar as it adjudicated Shuler’s claims. See Conaway v. Polk,
453 F.3d 567, 581 (4th Cir. 2006). A federal court may grant
habeas relief on a claim “adjudicated on the merits” by a state
court only if the state court ruling “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” or “resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.A. § 2254(d).
A decision is “contrary to” clearly established federal
law if it either applies a legal rule that contradicts
prior Supreme Court holdings or reaches a conclusion
different from that of the Supreme Court “on a set of
materially indistinguishable facts.” A decision is an
“unreasonable application” of clearly established federal
law if it “unreasonably applies” a Supreme Court
precedent to the facts of the petitioner’s claim.
Buckner, 453 F.3d at 198 (quoting Williams v. Taylor, 529 U.S.
362, 412-13 (2000)) (citation omitted).
With these principles in mind, we turn to an examination of
Shuler’s claims.
8
A. Steroid Use
Shuler first maintains that counsel were ineffective for
failing to investigate Shuler’s use of anabolic steroids. He
maintains that such an investigation would have resulted in the
development of evidence supporting statutory and non-statutory
mitigating factors relating to the drug abuse.
At the PCR hearing, Shuler presented the testimony of
Dr. Harrison G. Pope, an expert on the effects of steroid use.
Dr. Pope testified that individuals who use large quantities of
anabolic steroids, in the manner typical of body builders, often
experience mania or hypomania characterized in part by marked
irritability and aggression. Although Dr. Pope neither examined
Shuler nor spoke with him, he concluded that Shuler was abusing
steroids at the time of the crime based on Shuler’s admission to
Dr. Schwartz-Watts, reports from Dr. Schwartz-Watts and others
regarding Shuler’s physique, the fact that Shuler had asked his
girlfriend, Aleshia Berry, to contact a pharmacist friend for help
in acquiring drugs, and a “bizarre” and “aggressive” incident in
1996 in which Shuler held Berry’s head under the water in a pool
for “an extended period of time.” J.A. 869 (internal quotation
marks omitted). Dr. Pope identified increasingly aggressive
behavior by Shuler, beginning in 1995 when Shuler was involved in
a drive-by shooting at his then-workplace and culminating with the
robbery-murder for which he had been sentenced to death.
9
Ultimately, Dr. Pope stated his opinion that Shuler’s capacity to
conform his conduct to the requirements of the law was
substantially impaired at the time of the offense (a statutory
mitigating factor under South Carolina law) due to steroid use.
Shuler contends, in essence, that competent counsel would have
conducted a more thorough investigation of Shuler’s steroid use and
would have presented the testimony of an expert such as Dr. Pope in
order to persuade the jury that Shuler’s steroid use was a
mitigating factor. In assessing this claim, the PCR court
acknowledged the clearly established rule that “counsel has a duty
to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Strickland, 466
U.S. at 691; see id. at 690-91 (“[S]trategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the
limitations on investigation.”).
The PCR court found that trial counsel did conduct some
investigation into Shuler’s use of steroids. In particular, based
on their knowledge that Shuler had used cocaine base and steroids,
counsel instructed the defense investigator to conduct an
investigation into drug use by Shuler (but did not specifically
mention steroids). The investigation revealed some casual drug use
10
and that the person suspected to have been Shuler’s dealer was
deceased. However, the primary focus of the investigation was on
finding witnesses who would support counsel’s theory of
mitigation--that Shuler was a good man and that the crime was out
of character.
At the PCR hearing, defense counsel testified regarding their
strategy with respect to Shuler’s steroid use. Counsel stated that
they considered using the evidence but that they decided not to do
so because they were concerned that a jury in the conservative
county where the case was to be tried would find such evidence
aggravating rather than mitigating. Cummings, for example,
testified regarding his “reservations about introducing evidence
that a healthy, young, grown male self abuses illegal drugs in
order to bulk up.” J.A. 874 (internal quotation marks omitted).
Trial counsel also believed that presenting any evidence regarding
mental health issues, such as the psychological impact of steroid
use, would open the door to testimony that Shuler had attempted to
feign total memory loss, seizures, and hallucinations. Indeed,
counsel decided not to present any mental health testimony after
Dr. Morgan testified during the competency hearing that he believed
Shuler was malingering.
The PCR court concluded that although counsel’s investigation
into Shuler’s steroid use was limited, that limitation was
objectively reasonable in light of counsel’s strategic judgment
11
that the jury would view such evidence as aggravating, not
mitigating. We cannot conclude that this ruling was an
unreasonable application of Strickland and Wiggins. Importantly,
the only evidence available to counsel indicated that Shuler’s
steroid use was limited and remote--according to Cummings and
Stokes, Shuler informed them only that he had taken some steroid
pills during the summer of 1997, and he denied having used steroids
near the time of the crime. Furthermore, the investigator
uncovered no evidence of extensive drug use, despite speaking with
numerous people who knew Shuler well. Counsel thus decided not to
present evidence of past voluntary use of a drug when that evidence
likely would have had a negative effect on the jury.2
B. Cocaine Base
Shuler next contends that trial counsel were ineffective for
failing to develop and present to the jury evidence that he used
cocaine base in the hours before the offense. The PCR court found
that defense counsel knew before trial that Shuler had used cocaine
base and that, based on this knowledge, counsel had directed their
investigator to inquire into Shuler’s use of drugs. This
2
Although its conclusion that counsel’s investigation was not
unreasonable was sufficient to dispose of Shuler’s claim regarding
his steroid use, the PCR court nevertheless continued to the issue
of whether Shuler suffered prejudice, and determined that he had
not. Because we hold that the ruling of the PCR court with
respect to counsel’s effectiveness was not unreasonable, we do not
consider its decision regarding prejudice.
12
investigation did not reveal anything more than casual use of
drugs.
Stokes and Cummings discussed the possibility of introducing
evidence of Shuler’s use of cocaine base as part of the case in
mitigation, but elected not to do so. This decision was driven by
the same strategic considerations that animated the decision not to
present evidence regarding Shuler’s use of steroids: fear that the
jury would view casual drug use as aggravating rather than
mitigating and concern that any testimony regarding the
psychological effects of cocaine use would be countered with
potentially devastating testimony regarding Shuler’s attempts to
feign mental illness.
The PCR court concluded that counsel’s strategic decision not
to present evidence of Shuler’s cocaine use was not objectively
unreasonable under the circumstances. We agree with the conclusion
of the district court that this ruling by the PCR court was neither
contrary to, nor an unreasonable application of, clearly
established federal law.
C. Suicide Attempt
In a report filed shortly after the crime, FBI Special Agent
David Espie wrote that “[a]s Shuler contemplated the robbery” while
lying in bed during the early morning hours of December 3, “he held
the assault rifle that Jones had purchased for [him]; at this time,
this rifle was fully loaded.... Shuler placed the barrel of this
13
rifle into his mouth and pulled the trigger.” J.A. 770.
Unbeknownst to Shuler, the safety was on, and thus the rifle did
not fire.
Shuler asserts that trial counsel were ineffective for failing
to provide the information in Espie’s report to Dr. Morgan and to
present it to the jury. The PCR court rejected these claims, first
finding as a fact that trial counsel did inform Dr. Morgan of the
suicide attempt, although they may have done so orally rather than
by providing Dr. Morgan with a copy of Espie’s report. Shuler does
not contend that this finding is unreasonable in light of the
evidence presented during the PCR hearing, nor could he credibly do
so.
Second, the PCR court concluded that it was not unreasonable
for counsel to fail to present the suicide attempt to the jury. In
the view of the PCR court, mere presentation of the attempt (e.g.,
by seeking admission of Espie’s report) would have been
insufficient, standing alone, to justify a jury instruction on the
statutory and nonstatutory mitigating factors that Shuler alleges
are supported by the suicide attempt. Thus, presentation of
psychological testimony would have been necessary, with the result
that the door would be opened to evidence regarding Shuler’s
malingering. The PCR court therefore concluded that counsel’s
failure to present the suicide attempt to the jury was not
objectively unreasonable “[i]n light of the obvious negative
14
aspects of possible rebuttal evidence that [Shuler] was
malingering.” Id. at 892 (internal quotation marks omitted). We
conclude that the ruling of the PCR court that counsel were not
ineffective regarding Shuler’s suicide attempt was neither contrary
to, nor an unreasonable application of, Supreme Court precedent.
The PCR court further concluded that even if the failure to
present this evidence was ineffective, Shuler could not demonstrate
prejudice. We hold that this ruling also was not unreasonable.
Counsel’s mitigation strategy was to present Shuler as a good man
who had made a terrible mistake. As part of this strategy, counsel
presented testimony regarding Shuler’s reaction to his parents’
deaths. Various witnesses testified that Shuler was deeply
depressed following his parents’ deaths; this testimony included a
statement that “all the life went out” of him after his parents’
passing. Id. at 271. His aunt testified that on one occasion she
found Shuler in the cemetery, lying between his parents’ graves.
In short, the jury was fully aware of Shuler’s depression at the
time of the crime. The jury also knew that the crime took place on
December 3, which was both Shuler’s birthday and the anniversary of
his mother’s burial. While evidence of a suicide attempt would
have provided an additional piece of the puzzle, we cannot say that
the PCR court unreasonably applied the prejudice prong of
Strickland when it concluded that Shuler had failed to demonstrate
a reasonable probability that, absent counsel’s failure to present
15
the evidence, at least one juror would have voted to impose a life
sentence.
III.
Finally, Shuler raises two claims related to the testimony of
Demond Jones. First, he maintains that the prosecution knowingly
allowed Jones to testify falsely regarding his plea agreement with
the federal government. See Napue v. Illinois, 360 U.S. 264, 269
(1959). Second, Shuler claims that the prosecution failed to
produce evidence regarding a particular aspect of the agreement,
namely, that Jones would be incarcerated in South Carolina. See
Brady v. Maryland, 373 U.S. 83, 87 (1963). We affirm the denial of
relief as to both of these claims.
A. Napue Claim
A conviction acquired through the knowing use of perjured
testimony by the prosecution violates due process. See Napue, 360
U.S. at 269. This is true regardless of whether the prosecution
solicited testimony it knew to be false or simply allowed such
testimony to pass uncorrected. See Giglio v. United States, 405
U.S. 150, 153 (1972); Napue, 360 U.S. at 269. The Supreme Court
has held that a defendant is entitled to relief on such a claim
when “‘there is any reasonable likelihood that the false testimony
could have affected the judgment of the jury.’” Kyles v. Whitley,
16
514 U.S. 419, 433 n.7 (1995) (quoting United States v. Agurs, 427
U.S. 97, 103 (1976)).
Because Jones was a convicted felon, it was illegal for him to
possess the SKS rifle he purchased for Shuler. He was charged with
several federal offenses in connection with his purchase of the
weapon. Jones pleaded guilty to a single offense and was sentenced
to 41 months imprisonment. However, the plea agreement provided
that the United States would seek a sentence reduction pursuant to
Rule 35 of the Federal Rules of Criminal Procedure if Jones
“cooperate[d] pursuant to the provisions of this Plea Agreement,
and that cooperation is deemed by Attorneys for the Government as
providing substantial assistance in the investigation or
prosecution of another person who has committed an offense.” J.A.
863.
During cross-examination, Shuler unsuccessfully attempted to
elicit Jones’ acknowledgment of this provision of the plea
agreement:
Q. ... they have a right to reconsider your
sentence, the United States Attorney ... can go back and
ask Judge Norton to give you a reduction under the rules
as part of its plea agreement; isn’t that correct?
A. I’m not promised nothing.
....
Q. You signed a plea agreement with the United
States Government .... This is an original file[d] back
on April 8, 1997, where you agreed to plead guilty. I
want you to please take a look at it and see if you can
identify it?
17
A. Yes, sir.
....
Q. They agreed to drop certain counts of the
indictment, certain charges, everything else if you
agreed to come to this courtroom today and testify as
you’re testifying, right?
A. Right.
Q. Okay.
And I’m asking you under oath this morning:
Were you not told by either the United States Attorney or
your lawyer ... that if you testified here they would
have the right to come back and seek a reduction under
the rules of federal court for you if you testified in
this hearing today?
A. No.
Q. They did not tell you that?
A. I ain’t promised nothing.
Q. You[’re] understanding you’re under oath?
A. I’m right.
Q. You’re as sure of that last statement as you
are about ... every other piece of testimony you
testified to for the State, are you not, sir?
....
A. I wasn’t promised anything.
Id. at 202-04.
Shuler maintains that Jones’ testimony was false, in that he
claimed not to be aware of the possibility of a Rule 35 motion, and
that the prosecution violated Napue by allowing this false
testimony to pass uncorrected. The PCR court concluded, and we
18
will accept for purposes of analyzing this issue, that Jones’
testimony on this point was incorrect because the Government had
promised that it would seek a reduction in Jones’ sentence if he
testified truthfully at Shuler’s trial, although the plea agreement
noted that the district court would not be bound to grant such a
motion. However, the PCR court concluded that relief was not
warranted because the jury was made aware, through questioning by
the prosecution and Shuler, of the nature of Jones’ agreement and
because the inaccurate testimony was not material in light of the
“vehement attack” on Jones’ credibility:
[D]efense counsel’s cross-examination successfully
impugned Jones’ character by: (1) eliciting Jones had
repeatedly spoken with State and federal police officers,
but refused to talk with defense investigators; (2)
showing Jones was on probation for assault and battery
with the intent to kill when he was arrested on federal
charges, and he had not had a State probation revocation
hearing; (3) demonstrating Jones admitted lying on his
federal firearms application for the SKS rifle; and (4)
demonstrating Jones had not been charged by the Solicitor
in connection with [Shuler’s] case, and had not been
charged with lying to the FBI.
Id. at 901 (internal quotation marks omitted).
We agree with the district court that the analysis of the PCR
court was neither contrary to, nor an unreasonable application of,
the principles set forth in Napue. Accordingly, we affirm the
rejection of this claim by the district court.
B. Brady Violation
Shuler makes a second claim related to Jones’ testimony,
namely, that the prosecution failed to reveal to the defense that
19
Jones was promised that he would be incarcerated in South Carolina
in exchange for his testimony and that he would receive drug
treatment. The claim regarding incarceration is based on a letter
from the Assistant United States Attorney in Jones’ case to
Shuler’s prosecutor. The letter stated, in relevant part,
Judge Norton ... indicated that he would recommend that
Jones be designated to the federal prison in Estill which
should be relatively convenient for trial preparation.
Judge Norton said that if there are any difficulties with
your having access to Jones for trial preparation, or at
such time as you need him transported for trial, he will
be glad to assist by issuing the appropriate orders at my
request.
J.A. 834-35. Shuler also notes that during Jones’ sentencing
hearing, Jones’ counsel requested that his client be assigned to
the federal penitentiary at Estill.
The PCR court found as a fact that there was no “deal” with
Jones regarding his place of incarceration; rather, the letter
cited by Shuler indicated an attempt to ensure that Jones, a key
witness against Shuler, would be readily available for trial
preparation. This finding is not unreasonable in light of the
evidence presented to the PCR court.
Because the PCR court was concerned about the appearance that
“Jones’ counsel had a ‘say’ in Jones’ penal destination,” id. at
905, the court additionally considered whether the failure to
divulge the purported “deal” was material. The PCR court concluded
that the evidence was not material in light of the extensive
impeachment of Jones (detailed above) and the extensive evidence of
20
Shuler’s guilt, which included his confession. This conclusion was
not an unreasonable one, and we affirm the denial of this claim by
the district court.
IV.
For the reasons set forth above, we affirm the denial of
habeas relief by the district court.
AFFIRMED
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