Plath v. Moore , 130 F.3d 595 ( 1997 )


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  • PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    JOHN H. PLATH,
    Petitioner-Appellant,
    v.
    MICHAEL W. MOORE, Director of the
    South Carolina Department of
    No. 97-7
    Corrections, in his official capacity;
    CHARLES M. CONDON, Attorney
    General of South Carolina, in his
    official capacity,
    Respondents-Appellees.
    Appeal from the United States District Court
    for the District of South Carolina, at Columbia.
    C. Weston Houck, Chief District Judge.
    (CA-93-1857-3)
    Argued: September 29, 1997
    Decided: November 24, 1997
    Before RUSSELL, NIEMEYER, and MOTZ, Circuit Judges.
    _________________________________________________________________
    Affirmed by published opinion. Judge Russell wrote the opinion, in
    which Judge Niemeyer and Judge Motz joined.
    _________________________________________________________________
    COUNSEL
    ARGUED: David Paul Voisin, Columbia, South Carolina, for Appel-
    lant. Lauri J. Soles, Assistant Attorney General, Columbia, South Car-
    olina, for Appellees. ON BRIEF: John H. Blume, Columbia, South
    Carolina, for Appellant. Charles Molony Condon, Attorney General,
    Donald J. Zelenka, Assistant Deputy Attorney General, Columbia,
    South Carolina, for Appellees.
    _________________________________________________________________
    OPINION
    RUSSELL, Circuit Judge:
    Petitioner John Plath ("Plath") appeals the denial of a writ of
    habeas corpus by the District Court for the District of South Carolina.
    Because we find that Plath presents no valid grounds for habeas relief,
    we affirm the district court.
    I.
    Plath was the co-defendant of John D. Arnold ("Arnold"), against
    whose habeas appeal this court ruled on May 14, 1997.1 The South
    Carolina Court of General Sessions convicted both Plath and Arnold
    of the 1978 kidnapping, rape, and murder of Betty Gardner, a Beau-
    fort County, South Carolina woman, and sentenced both to death.
    The facts of the case against Plath and Arnold are disturbing, and
    have been summarized several times by both state and federal courts
    in the last two decades. Most recently, we restated them in Arnold v.
    Evatt, where we found that:
    In the early morning hours of April 12, 1978, cousins John
    Arnold and John Plath, who were in their early twenties,
    along with their respective eleven-year-old and seventeen-
    year-old girlfriends, Carol Ullman and Cindy Sheets, bor-
    rowed a friend's car and went looking for wild mushrooms.
    During their search they encountered farm worker Betty
    Gardner as she walked along the side of the road. Gardner
    hitchhiked a ride with the two couples, who took her to her
    brother's home. Gardner then asked if the group would take
    _________________________________________________________________
    1 Arnold v. Evatt, 
    113 F.3d 1352
     (4th Cir. 1997).
    2
    her to work, but they refused and drove off . . . They then
    went back, picked Gardner up, and took her to a remote
    wooded area near a garbage dump.2
    There, Plath, Arnold and their girlfriends subjected Gardner to acts of
    extreme cruelty and perversion.
    According to testimony at trial, shortly after arriving at the wooded
    area, Arnold knocked Gardner to the ground and he and Plath began
    kicking her. Plath then ordered Gardner to undress, and forced her to
    perform oral sex upon himself and Cindy Sheets ("Sheets"). While
    Gardner performed oral sex upon Sheets, Plath beat Gardner with a
    leather belt, and subsequently urinated in Gardner's mouth, forcing
    her to swallow the urine.
    Plath and Arnold then together attempted to strangle Gardner with
    a piece of garden hose they found on the dump site. When this
    method of execution proved unsatisfactory, Plath repeatedly stomped
    on Gardner's neck, commenting that "niggers are sure hard to kill."
    Afterwards, Plath stabbed Gardner some ten times in the chest, and
    Arnold, using the garden hose, dragged Gardner by the neck into the
    adjacent woods. Arnold returned to say Gardner did not seem to be
    dead, and as a result Plath told Sheets to take a broken bottle and cut
    Gardner's throat.
    Sheets and Arnold finally strangled Gardner with the hose, and, in
    an effort to mislead police, Arnold carved "KKK" into Gardner's
    body. Nearly six weeks later, however, Sheets led authorities to Gard-
    ner's badly decomposed body.
    The South Carolina Supreme Court affirmed Plath's and Arnold's
    convictions, but reversed the death sentences and remanded the case
    for resentencing.3 After a resentencing trial before a jury, the Court
    of General Sessions again imposed the death penalty on both defen-
    dants. Plath then appealed to the South Carolina Supreme Court,
    which affirmed the death sentence,4 and to the United States Supreme
    _________________________________________________________________
    2 
    Id. at 1355
    .
    3 State v. Plath, 
    284 S.E.2d 221
     (S.C. 1981).
    4 State v. Plath, 
    313 S.E.2d 619
     (S.C. 1984).
    3
    Court, which denied Certiorari.5 Plath subsequently applied for Post-
    Conviction Relief ("PCR") in the South Carolina Court of General
    Sessions in November 1984, and amended that application twice in
    1985. After an evidentiary hearing, the Court of General Sessions dis-
    missed Plath's PCR application on May 12, 1986.
    Following that dismissal, Plath again applied for, and was granted,
    Certiorari to the United States Supreme Court, and that court remanded6
    the case to the Court of General Sessions for reconsideration in light
    of Yates v. Aiken.7 The issue meriting reconsideration was whether the
    implied malice instruction given at Plath's original trial violated his
    right to due process of law under the 14th Amendment of the U.S.
    Constitution and, if so, whether that violation constituted reversible
    error. The Court of General Sessions found that the implied malice
    instruction did not violate Yates v. Aiken, and that, even if it did, that
    violation was harmless beyond a reasonable doubt.
    Thereafter, Plath submitted a third amended PCR application,
    which was denied on March 5, 1990. Plath appealed this denial to the
    South Carolina Supreme Court, which affirmed,8 holding that,
    although the implied malice instruction violated Yates v. Aiken, it was
    harmless beyond a reasonable doubt under the analysis set forth in
    Yates v. Evatt.9 On February 22, 1993, the U.S. Supreme Court denied
    Certiorari.10
    Plath then sought habeas relief in the United States District Court
    for the District of South Carolina. On October 8, 1993, the State made
    a motion for summary judgement, and on October 17, 1994, a U.S.
    Magistrate issued a report recommending denial of habeas corpus
    relief. The district court granted the State's motion for summary
    judgement and denied habeas relief on September 3, 1996, and denied
    _________________________________________________________________
    5 Plath v. South Carolina, 
    467 U.S. 1265
     (1984).
    6 Plath v. South Carolina, 
    484 U.S. 1022
     (1988).
    7 
    484 U.S. 211
     (1988).
    8 Arnold v. State, 
    420 S.E.2d 834
     (1992).
    9 
    500 U.S. 391
     (1991).
    10 Plath v. State, 
    507 U.S. 927
     (1993).
    4
    petitioner's motion to alter or amend his order on January 30, 1997.
    This appeal followed.
    II.
    Plath alleges six grounds for habeas relief, several of which are the
    same as those alleged unsucessfully in Arnold . We address each in
    turn.
    A.
    As in the case of his co-defendant, Plath first seeks habeas relief
    on the ground that the trial judge's jury instruction regarding the
    implication of malice from the use of a deadly weapon was clearly
    unconstitutional and amounted to reversible error. We considered this
    same instruction in Arnold, where we found it unconstitutional under
    Yates v. Evatt,11 but also found that it was nevertheless harmless error.12
    We see no reason to reach a different conclusion in this case.
    In Arnold, we restated the rule that, to obtain habeas relief as a
    result of an unconstitutional implied malice instruction, a petitioner
    must show that the instruction "``had substantial and injurious effect
    or influence in determining the jury's verdict.'"13 According to Yates
    v. Evatt, making this determination involves a two-step process: first,
    we must "ask what evidence the jury actually considered in reaching
    its verdict."14 Then, once we have established the extent of the total
    evidence considered, we must "weigh the probative force of that evi-
    dence as against the probative force of the [implied malice] presump-
    tion standing alone."15
    We applied this test in Arnold, where we found that, based on the
    entire body of evidence considered by the jury,"this case reeks of
    _________________________________________________________________
    11 Arnold, 
    113 F.3d at 1356
    .
    12 
    Id. at 1357
    .
    13 
    Id. at 1356
     (quoting Brecht v. Abrahamson, 
    507 U.S. 619
    , 637
    (1993)).
    14 Yates v. Evatt, 
    500 U.S. 391
    , 404 (1990).
    15 
    Id.
    5
    express malice and any reasonable jury, notwithstanding the implied
    malice instruction, would have found malice beyond a reasonable
    doubt."16 Therefore, we found the implied malice instruction in
    Arnold, the same instruction that is at issue in this case, to be harm-
    less error.
    Plath, however, seeks to distinguish this case from Arnold's by
    asserting that no such clear and independent evidence of malice
    applied to him. Indeed, Plath argues that all evidence of malice on his
    part is "confusing and contradictory." We disagree.
    As much, if not more, evidence of specific acts of malice in the
    record pertains to Plath as pertains to Arnold. And as the U.S. Magis-
    trate's report points out, there was testimony at trial of a long list of
    acts that, when considered by a jury, would have been easily suffi-
    cient to support a finding of malice on Plath's part. These acts
    include: forcing the victim to undress, forcing the victim to perform
    oral sex upon him, forcing the victim to perform oral sex upon
    another person, beating the victim with a leather belt while she per-
    formed oral sex upon another person, dragging the victim by the neck
    with a leather belt, urinating in the victim's mouth, helping to strangle
    the victim with a rubber hose, stabbing the victim, and ordering
    another person to "finish off" the victim. 17
    Plath also contends that both the lack of credibility of Sheets, a key
    witness, and the existence of evidence supporting Plath's claim of
    innocence militate against the notion of a strong body of independent
    malice evidence. However, both of these elements were present in
    Arnold, and indeed, Sheets's testimony was as central in that case as
    it is here. Thus, in this regard, there seems to be little substantive dif-
    ference between Plath's case and that of Arnold.
    Finally, Plath alleges as error the State's use of the implied malice
    presumption in its closing argument, stating that"[t]he solicitor . . .
    relied on the presumption of malice arising from the use of a deadly
    weapon."18 But here again, the same argument was cited in Arnold,
    _________________________________________________________________
    16 Arnold, 
    113 F.3d at 1357
    .
    17 J.A. at 232.
    18 Petitioner's Br. at 11.
    6
    and in that decision we concluded that it "fails, however, to tip the
    scales sufficiently in his [Arnold's] favor."19
    Thus we hold that, as in Arnold, there is sufficent evidence in the
    record from which a jury could have found beyond a reasonable doubt
    that Plath acted with malice even in the absence of the unconstitu-
    tional instruction. We therefore find that the implied malice instruc-
    tion was harmless error, and decline to grant habeas relief on this
    ground.
    B.
    Plath again borrows an argument from Arnold by alleging that
    improper arguments by the State at both the guilt and sentencing
    phases of his trial deprived him of due process of law. Plath concedes
    that the allegedly improper arguments from the guilt phase of his trial
    were not raised on direct appeal, but contends that they are appropri-
    ate for habeas consideration under Kornahrens v. Evatt.20 In that case,
    which we used to dispose of practically the same argument in Arnold,
    this court reaffirmed a basic principle of habeas corpus jurisprudence,
    declaring that, "if a state prisoner defaulted on his federal claims in
    state court pursuant to an independent and adequate state procedural
    rule, he is precluded from asserting such claims in his federal habeas
    petition unless he shows cause for and resulting prejudice from
    default."21 In addition, such claims must be raised on direct appeal,
    and cannot be made for the first time during state PCR.22
    But here, Plath contends that the South Carolina Supreme Court's
    practice of in favorem vitae review means that the question of
    improper argument during the guilt phase of the trial was in fact
    examined at the state level. In Arnold we clearly refuted this notion,
    but Plath nevertheless attempts to distinguish his claim from that case
    on two grounds: first, that the May 12, 1986 order of the Court of
    Common Pleas dismissing Plath's PCR application states that the
    _________________________________________________________________
    19 Arnold, 
    113 F.3d at 1357
    .
    20 
    66 F.3d 1350
     (4th Cir. 1995).
    21 Kornahrens v. Evatt, 
    66 F.3d 1350
    , 1357 (4th Cir. 1995).
    22 
    Id. at 1362
    .
    7
    South Carolina Supreme Court had reviewed the case in favorem
    vitae, and second, that in the South Carolina Supreme Court there
    was, at the time of Plath's appeal, "a practice of reviewing closing
    arguments in capital cases regardless of whether an issued [sic] had
    been raised at trial or on appeal."23
    However, both of these grounds seem to miss the thrust of
    Kornahrens as well as our use of its rule in Arnold. Although in
    Kornahrens we mentioned that the South Carolina Supreme Court
    had abolished in favorem vitae review, our reason for declining to rec-
    ognize such implied review for habeas purposes was not that it did not
    exist, but that it did not give federal courts a sufficient record to "de-
    termine whether the state court has properly applied federal constitu-
    tional principles."24 Quite simply, with only the implication of state
    court review in favorem vitae, "we have no state court judgement to
    review."25
    Thus, there seems to be no reason to distinguish Plath's default
    from Arnold. Further, with regard to the alleged improper arguments
    made by the State during Plath's resentencing, an issue that was
    raised in state court, these same arguments were considered in Arnold,
    where we found that they did not meet Darden v. Wainwright's
    requirement that they "``so infected the trial with unfairness as to make
    the resulting conviction a denial of due process.'"26 There appears to
    be nothing in Plath's argument that would demand a different result.
    C.
    Plath next contends that the Court of General Sessions for Beaufort
    County lacked jurisdiction over his prosecution, as the site of the
    crimes in question was neither within the boundaries of Beaufort
    County nor the State of South Carolina, but was instead part of "The
    _________________________________________________________________
    23 Petitioner's Br. at 17 (citing State v. Gilbert, 
    258 S.E.2d 890
    , 894
    (S.C. 1979)).
    24 Kornahrens, 
    66 F.3d at 1362
    .
    25 Id.; see also Matthews v. Evatt, 
    105 F.3d 907
    , 913 (4th Cir. 1997).
    26 Arnold, 
    113 F.3d at 1358
     (quoting Darden v. Wainwright, 
    477 U.S. 168
    , 181 (1986)).
    8
    Territorial Sea." This claim was made in Arnold, where we found it
    "meritless."27 Unless there has been a change in the geographical posi-
    tion of St. Helena's Island since May 14, 1997, Plath's reiteration of
    this claim would appear to be equally so.
    Further, Plath cites Townsend v. Sain28 in support of the proposition
    that he should have at least been allowed an evidentiary hearing on
    the matter by the district court. However, as the State correctly points
    out, Townsend demands an evidentiary hearing as a part of a habeas
    proceeding only where "no express findings of fact" have been made.29
    Here, part of the burden that the State sought to meet was proof of
    the place of death for jurisdictional purposes, 30 and in the indictment
    for murder against Plath, the State alleged that Plath killed Gardner
    "in Beaufort County on or about the 12th day of April 1978."31
    The fact that the jury convicted Plath based on this indictment is
    thus as clear and "express" a finding of fact as could be expected. As
    a result, we hold that the relief contemplated by Townsend is unavail-
    able in this case.
    D.
    Plath also contends that several acts and omissions of his trial
    counsel amount to ineffective assistance of counsel, entitling him to
    habeas relief. First, Plath cites his attorneys' failure to object, at the
    guilt phase of the trial, to the introduction of and reference to an
    immunity agreement between the State and Cindy Sheets, the State's
    primary witness, that alluded to Sheets's submission to a polygraph
    test. Under Strickland v. Washington,32 Plath must show that this and
    any other act by his attorneys was both professionally deficient and
    the cause of prejudice to him. This, as we have stated, is a difficult
    _________________________________________________________________
    27 
    Id.
    28 
    372 U.S. 293
     (1963).
    29 Townsend v. Sain, 
    372 U.S. 293
    , 314 (1963).
    30 Respondent's Br. at 30 (citing State v. Bostick, 
    131 S.E.2d 841
     (S.C.
    1963)).
    31 J.A. at 583.
    32 
    466 U.S. 668
     (1984).
    9
    standard to meet, as "``[j]udicial scrutiny of counsel's performance
    must be highly deferential,'"33 and prejudice to a defendant must be
    clear.
    In Arnold, we found Arnold's attorneys' failure to object to the
    same evidence was part of a "trial strategy." 34 In addition, we also
    found that prejudice was unlikely as, despite the evidence of a poly-
    graph test bolstering Sheets's credibility, "no evidence of the results
    of any polygraph test were presented to the jury and the jury had
    ample opportunity to assess Sheets' credibility during her lengthy
    appearance on the witness stand."35 Here, although the district court
    found that the failure to object to this evidence"was not a strategic
    decision," it nevertheless found in this case the same lack of prejudice
    that was noted in Arnold, as Sheets testified at length, and "the jury
    had ample opportunity to observe her for a substantial period of time
    to reach their own conclusions regarding her credibility."36 We
    believe that this conclusion was correct.
    Second, Plath contends that his attorneys provided ineffective
    assistance by failing to lay the proper foundation for x-rays of Plath's
    leg, broken prior to the murder, which would have helped rebut Cindy
    Sheets's testimony that Plath "stomped" the victim. However, because
    authentication of the x-rays would have required bringing in a witness
    from York, Pennsylvania, and would have exhausted Plath's funds in
    a vain effort to do so,37 Plath's attorneys decided instead to use the
    testimony of a local orthopedic surgeon to establish that Plath's leg
    was broken at the time of the murder. Plath contends that had the
    existence of the broken leg been more firmly established, the jury
    may have found his role in the murder "minimal."
    Nevertheless, Plath's argument fails the first prong of the
    Strickland test: that the acts of counsel be objectively unreasonable.
    _________________________________________________________________
    33 Kornahrens, 
    66 F.3d at 1359
     (quoting Strickland v. Washington, 
    466 U.S. 668
    , 687-88 (1984)).
    34 Arnold, 
    113 F.3d at 1363
    .
    35 
    Id.
    36 J.A. at 667-68.
    37 Id. at 1269.
    10
    Mere competency and reasonableness are all that is required of coun-
    sel under this analysis,38 and such is clearly present in the strategic
    decision to use the orthopedic surgeon's testimony in lieu of what
    appears from the record to have been an impractical alternative.
    Moreover, Plath, through medical witnesses, was able to establish that
    his leg had been broken six weeks before the crime. The failure to
    admit additional x-ray evidence to establish the same fact hardly prej-
    udiced Plath. For these reasons, we hold that the actions of Plath's
    counsel in this regard were adequate.
    Third, Plath claims that his attorneys' failure to present additional
    mitigating evidence deprived him of his right to effective assistance
    of counsel. Specifically, Plath claims that, had a more extensive
    investigation into his background and mental state been made, such
    mitigating evidence would have influenced a jury to impose a sen-
    tence of life imprisonment rather than the death penalty. And indeed,
    Plath's brief paints a striking picture of Plath's tragic background and
    extremely unstable mental state.
    However, as the State's brief points out, several factors militate
    against Plath's success on this ground. First, Plath did not raise this
    issue until his final motion to amend his application for PCR,39 which
    means that, absent a showing of cause and prejudice or a fundamental
    miscarriage of justice, it cannot be considered in this habeas proceed-
    ing. Additionally, it appears from the record that, although Plath's
    counsel did not make an exhaustive examination of his background
    and mental state, they nevertheless made a reasonable one.40 At least
    ten witnesses testified as to Plath's background, and, as the State's
    brief makes clear, sufficient consideration of Plath's mental state was
    made.
    Further, when considered against the sheer magnitude of the aggra-
    vating evidence against Plath, it is difficult to see the allegedly unrea-
    sonable omission of this mitigating evidence as prejudicial. As in
    Strickland, "[g]iven the overwhelming aggravating factors, there is no
    _________________________________________________________________
    38 See Kornahrens, 
    66 F.3d at 1361
    .
    39 J.A. at 2373.
    40 See Matthews, 
    105 F.3d 907
    , 919-20 (4th Cir. 1997).
    11
    reasonable probability that the omitted evidence would have changed
    the conclusion that the aggravating circumstances outweighed the
    mitigating circumstances and, hence, the sentence imposed."41 Thus,
    in weighing the omitted evidence against that actually used to convict
    and sentence Plath, the mitigating evidence seems insufficient to shift
    the balance in Plath's favor.
    And finally, Plath claims that the failure of his counsel to call Eliz-
    abeth Binder as a witness at his sentencing retrial denied him effec-
    tive assistance of counsel. But again, Plath did not raise this claim
    during his appeals at the state level, and thus the State is correct in
    asserting, as did the district court, that it is procedurally barred. In
    addition, because there were some questions as to Binder's credibil-
    ity, the decision not to call her as a witness had clear strategic value,
    and thus can withstand the Strickland test.
    E.
    Plath next contends that a lack of mental competence on his part
    during the resentencing trial violated his rights under the Due Process
    Clause of the Fourteenth Amendment. Again, Plath did not raise this
    issue until his final motion to amend his PCR application, where it
    was dismissed as untimely, thus the presumption is that it is procedur-
    ally barred. Nevertheless, Plath attempts to rebut this presumption by
    citing a line of South Carolina Supreme Court cases that have allowed
    the issue of competence to be raised during collateral (PCR) proceed-
    ings.
    However, Plath seems to miss the crucial distinction between a
    state court allowing the unraised issue to be included in a PCR appli-
    cation, and a federal court considering it as part of a habeas proceed-
    ing. As we wrote in Kornahrens, "the crux of federal habeas corpus
    review is to provide criminal defendants with a mechanism to review
    state court interpretations of federal constitutional protections, while
    providing deference to the role of state court proceedings."42 There-
    fore, cases, like those cited by Plath, where a state court has allowed
    _________________________________________________________________
    41 Strickland, 
    466 U.S. at 700
    .
    6350 35 6 42 Kornahrens, 
    66 F.3d at 1362
    .
    12
    an unraised issue to become a part of state PCR review, do not mean
    that the principles of comity that limit habeas review can be ignored.
    In addition, Plath argues that these departures mean that the proce-
    dural default rule in question is inconsistently applied and is thus not
    an adequate and independent state ground for the default. We dis-
    agree. In Meadows v. Legursky, this court considered similar allega-
    tions of inconsistent application of a state procedural rule and found
    that, despite some deviations, a "general rule," that had been applied
    "``in the vast majority of cases,'" was entitled to respect as an adequate
    and independent state ground.43 In this case, it is unclear whether the
    departures from the state default rule that Plath cites similarly consti-
    tute merely deviations from the "general rule" applied in the "vast
    majority of cases." However, the district court, after a thorough analy-
    sis, concluded that even if Plath did preserve the argument, he had
    failed to meet the requirements of Lawson v. Dixon, 
    3 F.3d 743
    (1993), and so was not entitled to an evidentiary hearing on mental
    competency, and we agree.
    F.
    Finally, Plath claims that the absence of his counsel from a jury
    view of the site of the crimes in question deprived him of effective
    assistance of counsel. This same issue was raised in Arnold, where,
    although we conceded that a view should be conducted in the pres-
    ence of counsel, we stated that "[a]ll of the elements of a perfect trial
    . . . are not required in order to have a fair trial."44 Thus, we found that
    error harmless. As Plath alleges the same exclusion of counsel in this
    case, we believe that the result should be the same here, and decline
    to grant relief on this ground.
    CONCLUSION
    For the foregoing reasons, we affirm the judgement of the district
    court denying the writ of habeas corpus.
    AFFIRMED
    _________________________________________________________________
    43 
    904 F.2d 903
    , 907 (4th Cir. 1990) (en banc) (citing Dugger v. Adams,
    
    489 U.S. 401
     (1989)).
    44 Arnold, 
    113 F.3d at 1361
    .
    13