Filed: Feb. 05, 2010
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-7462 ROBERT HOLLAND KOON, Petitioner - Appellant, v. COLIE RUSHTON, Warden of McCormick Correctional Institution; HENRY DARGAN MCMASTER, Attorney General of the State of South Carolina, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Anderson. R. Bryan Harwell, District Judge. (8:05-cv-02523-RBH) Argued: December 4, 2009 Decided: February 5, 2010 Before TRAXLER, C
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-7462 ROBERT HOLLAND KOON, Petitioner - Appellant, v. COLIE RUSHTON, Warden of McCormick Correctional Institution; HENRY DARGAN MCMASTER, Attorney General of the State of South Carolina, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Anderson. R. Bryan Harwell, District Judge. (8:05-cv-02523-RBH) Argued: December 4, 2009 Decided: February 5, 2010 Before TRAXLER, Ch..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7462
ROBERT HOLLAND KOON,
Petitioner - Appellant,
v.
COLIE RUSHTON, Warden of McCormick Correctional Institution;
HENRY DARGAN MCMASTER, Attorney General of the State of
South Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. R. Bryan Harwell, District Judge.
(8:05-cv-02523-RBH)
Argued: December 4, 2009 Decided: February 5, 2010
Before TRAXLER, Chief Judge, and AGEE and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Richard Donald Dietz, KILPATRICK STOCKTON, LLP, Winston-
Salem, North Carolina, for Appellant. William Edgar Salter,
III, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia,
South Carolina, for Appellees. ON BRIEF: Adam H. Charnes,
Dustin T. Greene, KILPATRICK STOCKTON, LLP, Winston-Salem, North
Carolina, for Appellant. Henry Dargan McMaster, 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Unpublished opinions are not binding precedent in this circuit.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
PER CURIAM:
Robert Holland Koon (“Koon”) appeals the judgment of the
United States District Court for the District of South Carolina,
which dismissed his petition for a Writ of Habeas Corpus
(hereinafter “habeas petition”) pursuant to 28 U.S.C. § 2254.
Pursuant to 28 U.S.C. § 2253(c), this Court granted a
certificate of appealability as to three issues. For the
following reasons, we affirm the judgment of the district court.
I.
A. State Proceedings
In January 1997, the offices of the Cherokee County, South
Carolina Department of Probation, Pardon, and Parole Services
(“probation office”) were burglarized. Several offices were
ransacked and a number of items were stolen, including money, a
cellular telephone, badges, two sets of handcuffs, a two-way
radio, and a .357 revolver.
Several days later, police received a call reporting that a
man armed with a gun was beating on the door of the residence of
Jerry Sutherland (“Sutherland”). When the officers arrived,
Sutherland pointed to the back of the home and told them “he’s
back in the bedroom.” J.A. 97. Upon entering the bedroom,
officers found Koon hiding under the bed. After his arrest,
officers searched the area and found a .357 revolver located
3
under the same side of the bed where Koon had been found. The
revolver was the gun stolen from the probation office and Koon
was then charged with grand larceny and second degree burglary.
At his arraignment, Koon requested an attorney. However,
before an attorney was provided, officers questioned Koon about
the burglary and Koon led them to the location of other items
stolen from the probation office, including badges, telephones,
and the two-way radio. During trial, the court granted a motion
to suppress that evidence (hereinafter “suppressed evidence”),
holding that the “state has failed to . . . prove” that “the
defendant was [not] denied right to counsel.” J.A. 90.
During preparation for trial, Koon communicated with the
trial court on several occasions. On April 3, 1998, Koon sent a
letter to the court, stating that he was “informing the court I
am asserting my rights under Faretta v. California to represent
my-self, to insure [sic] that matters raised in this letter and
other matters are raised at my trial.” J.A. 65. The trial court
forwarded the letter to Koon’s counsel, with the following
instructions: “If there needs to be a hearing with Mr. Koon or
you just need to speak with Judge Hayes about this letter,
please don’t hesitate to call our office.” J.A. 74.
Koon wrote several more letters to the trial court
requesting that the court issue subpoenas, but contradicting his
initial correspondence stating that he “may” represent himself,
4
J.A. 70, 71, noting his “possible (pro se) representation,” J.A.
71, and signing the letters as a “Pro Se Defendant.” J.A. 70,
71, 76. In these letters, Koon also made several references to
“my attorney,” Mitch Slade (“Slade”), informing the court that
Slade “may supeano [sic] additional witnesses,” J.A. 73, that
the court send a copy of its response to Koon and to his
attorney, and directing the court to contact “my atty. Mitch
Slade.” J.A. 76. The court returned these letters to Koon,
directing him “to make this request to your attorney.” J.A. 70.
During trial, the State called Sutherland as a witness.
Sutherland testified that Koon came to his house on the day of
his arrest and showed him the stolen gun. Sutherland testified
that Koon left after showing him the gun and returned later
“beating on the door.” J.A. 172. At that point, Sutherland’s
step-son and/or his wife became frightened and called the
police. Sutherland testified that as officers arrived, Koon ran
into the woods. Sutherland and his wife later found Koon in a
back area of the home, at which point the officers returned and
found Koon.
During cross-examination, defense counsel questioned
Sutherland concerning his version of events, his relationship
with Koon, and his drinking habits. Sutherland testified that
he and Koon were friends and that he drinks everyday. Defense
counsel did not question Sutherland about or impeach his
5
credibility as to his two previous convictions of providing
false information to a law enforcement officer.
Regarding this decision, defense counsel later testified at
the state post-conviction hearing (“PCR hearing”) that “[w]hen
we first started working on this case, Mr. Koon thought that Mr.
Sutherland was gonna [sic] offer some testimony that would of
[sic] been helpful to him. I mean they were, they had been
friends for a long time. And he thought that he would be a . .
. more favorable witness.” J.A. 333. However, by the time the
trial arrived, Sutherland was “no longer allied with the
defendant,” J.A. 333, and counsel testified that “I think our
position, mine and Mr. Koon’s position . . . was that
[Sutherland] was just too drunk to remember what was going on.”
J.A. 334. Although he could not “recall specifically” why he
did not use Sutherland’s past convictions, J.A. 335, he
maintained that the defense’s goal was to show “that [Sutherland
and Koon] were friends and that he was a, a drunk or that he was
drunk . . . a lot of times when these events were going on.”
J.A. 336.
The defense called two witnesses at trial, who testified
that Koon was with them the evening of the burglary. Koon also
testified in his own defense and explained the presence of his
fingerprints on a ledger card in the probation office by
testifying that he looked at the card in the presence of
6
probation officers during a fee dispute prior to the burglary.
Koon explained his connection with the stolen gun by testifying
that a man named Charles Blackwell (“Blackwell”) had earlier
shown him the gun, Koon then drove Blackwell to Sutherland’s
home for the purpose of selling the gun, and that Sutherland
purchased the gun from Blackwell. On the day of his arrest,
Koon testified that he had been drinking with Sutherland, that
everything was “like a blur,” J.A. 227, and that he could not
remember why he was under the bed next to the stolen gun.
During cross-examination the State questioned Koon about
the suppressed evidence, asking whether he had ever seen the
stolen items and what he did with them. Defense counsel
objected to the line of questioning; however, the trial court
allowed the State to continue, finding that Koon had waived his
rights by taking the stand. Ultimately, Koon testified either
that he was not sure whether he had seen some of the items, or
denied seeing the suppressed evidence other than while in police
custody. The State never impeached Koon on the veracity of
these statements, nor did the State contradict Koon’s testimony.
Koon was convicted of burglary and grand larceny. He was
sentenced to life without parole for second degree burglary and
five years, consecutive, for grand larceny.
Koon appealed the trial court’s decision to the South
Carolina Court of Appeals, which affirmed the conviction. Koon
7
then filed a post-conviction relief (“PCR”) application with the
South Carolina Court of Common Pleas (“PCR court”), alleging
multiple errors and attesting that “he is being held in custody
unlawfully due to the ineffective assistance of counsel.” J.A.
351. The PCR court conducted a hearing and found that Koon
“failed to carry his burden of proof to show that his trial
counsel’s representation fell below reasonable professional
norms or that he was prejudiced by the alleged deficient
representation.” J.A. 367.
Koon then petitioned for Writ of Certiorari to the Supreme
Court of South Carolina, which was denied on its merits. Koon’s
motion for reconsideration/rehearing en banc was denied.
B. Habeas Proceedings
In 2005, Koon filed a habeas petition in the district
court. The petition listed numerous issues, including those
raised here, as well as various other claims of trial error and
ineffective assistance of counsel. In response, the State filed
a motion for summary judgment and Koon filed a response in
opposition.
The magistrate judge recommended granting summary judgment
to the State and dismissing all claims except Claim 7: “whether
[the state] court’s summary conclusion that [Koon] was not
prejudiced by the failure to impeach Sutherland was an
8
unreasonable application of Strickland.” J.A. 505. The
magistrate judge found that defense counsel’s failure to impeach
Sutherland on his prior convictions fell below the applicable
reasonableness standard and that the error prejudiced Koon.
Thus, the magistrate judge found that “genuine issues of fact
remain as to whether the PCR court’s summary conclusion that the
petitioner was not prejudiced by the failure to impeach
Sutherland was an unreasonable application of Strickland.” J.A.
505.
After the parties filed timely objections to the
magistrate’s report, the district court adopted the report and
recommendation, except as to Claim 7. As to that issue, the
district court found that Koon “has not shown that his attorney
was ineffective under Strickland regarding the cross-examination
of Sutherland and there was not an unreasonable application of
federal law by the state court.” J.A. 564. In accordance with
these findings, the district court granted summary judgment to
the State on all issues and denied Koon’s habeas petition.
Koon timely appealed the district court’s order denying his
habeas petition. This Court has appellate jurisdiction pursuant
to 28 U.S.C. §§ 1291 and 2254 and granted a certificate of
appealability as to three issues: (1) whether Koon’s right to
self-representation was violated; (2) whether Koon’s counsel was
ineffective for failing to impeach Sutherland; and (3) whether
9
Koon was improperly questioned about the suppressed evidence
during cross-examination.
II.
The decision of a district court on a matter of habeas
corpus relief is reviewed de novo and under the standards set
forth in 28 U.S.C. § 2254. Bell v. Ozmint, 332 F.3d 229, 233
(4th Cir. 2003). Under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), if the issue on appeal was
adjudicated in state court, as it was here, this Court
may award habeas corpus relief . . . only if the
adjudication “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.”
Cummings v. Polk, 475 F.3d 230, 237 (4th Cir. 2007) (quoting 28
U.S.C. § 2254(d)).
In Bell v. Cone, the Supreme Court held that a state
court’s decision is “contrary to” clearly established federal
law “if the state court applies a rule different from the
governing law set forth in our cases, or if it decides a case
differently than we have done on a set of materially
indistinguishable facts.” 535 U.S. 685, 694 (2002). A state
court’s decision is an “unreasonable application” of federal law
10
“if the state court correctly identifies the governing legal
principle from our decisions but unreasonably applies it to the
facts of the particular case.” Id. However, “it is not the
province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Estelle v. McGuire,
502
U.S. 62, 67-68 (1991).
III.
A. Right to Self-Representation
Koon argues that that he made repeated requests to proceed
pro se to the trial court and that he never waived his right to
represent himself. Koon contends that the trial court violated
his Sixth Amendment rights by either ignoring or denying his
requests and by failing to conduct a hearing on the issue, which
he argues was required under Faretta v. California, 422 U.S. 806
(1975). Koon claims that, because a violation of the Sixth
Amendment is a structural error, it requires automatic reversal
of his convictions.
The PCR court considered this claim in the context of
whether Koon’s counsel was ineffective for failing to request a
Faretta hearing and held that Koon’s “testimony concerning his
desire to proceed pro se was not credible. [He] admitted at
trial that Mr. Slade represented him well.” J.A. 353. The
Supreme Court of South Carolina considered the same issue, as
11
well as whether the trial court violated Koon’s rights by
failing to conduct a Faretta inquiry sua sponte. The Supreme
Court of South Carolina noted that Koon’s “request to proceed
pro se was considered by this Court in its review of the
petition for a writ of certiorari, both in the context of
ineffective assistance of counsel and trial court error,” J.A.
465, and found that both arguments lacked merit.
In Faretta, the Supreme Court held that “a State may [not]
hale a person into its criminal courts and there force a lawyer
upon him, even when he insists that he wants to conduct his own
defense.” 422 U.S. at 807. This is because, “implicit . . . in
the Sixth Amendment’s guarantee of a right to the assistance of
counsel, is ‘the right of the accused personally to manage and
conduct his own defense in a criminal case.’”
Id. at 817
(quoting United States v. Plattner,
330 F.2d 271, 274 (2d Cir.
1964)). Thus, “[u]nless the accused has acquiesced in . . .
representation, the defense presented is not the defense
guaranteed him by the Constitution, for, in a very real sense,
it is not his defense.”
Id. at 821. Accordingly, a defendant’s
choice to proceed pro se “must be honored out of ‘that respect
for the individual which is the lifeblood of the law.’”
Id. at
834 (quoting Illinois v. Allen,
397 U.S. 337, 350-51 (1970)
(Brennan, J., concurring)).
12
The Faretta Court also cautioned that, because “[w]hen an
accused manages his own defense, he relinquishes . . . many of
the traditional benefits associated with the right to counsel .
. .[,] in order to represent himself, the accused must
‘knowingly and intelligently’ forgo those relinquished
benefits.” 1 Id. at 835. Thus, the right attaches when a
defendant “clearly and unequivocally declare[s] to the trial
judge that [the defendant] want[s] to represent himself and
d[oes] not want counsel.”
Id. at 835.
Although Faretta recognized the importance of the right to
self-representation, “courts have assumed that the right to
self-representation and the right to representation by counsel,
while independent, are essentially inverse aspects of the Sixth
Amendment and thus that assertion of one constitutes a de facto
waiver of the other.” United States v. Singleton,
107 F.3d 1091,
1096 (4th Cir. 1997). Thus, “[a] trial court evaluating a
defendant’s request to represent himself must ‘traverse . . . a
1
Contrary to Koon’s assertions, Faretta does not require a
formal hearing. Instead, Faretta requires that a defendant
“should be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that ‘he knows
what he is doing and his choice is made with eyes open.’”
Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel.
McCann,
317 U.S. 269, 279 (1942)). The Faretta Court “did not
lay down detailed guidelines concerning what tests or lines of
inquiry a trial judge is required to conduct to determine
whether the defendant’s decision was ‘knowing and intelligent.’”
United States v. Gallop,
838 F.2d 105, 109 (4th Cir. 1988).
13
thin line’ between improperly allowing the defendant to proceed
pro se, thereby violating his right to counsel, and improperly
having the defendant proceed with counsel, thereby violating his
right to self-representation.” Fields v. Murray, 49 F.3d 1024,
1029 (4th Cir. 1995) (en banc). Ultimately though, “[o]f the
two rights, . . . the right to counsel is preeminent and hence,
the default position.”
Singleton, 107 F.3d at 1096; Tuitt v.
Fair,
822 F.2d 166, 174 (1st Cir. 1987) (“Where the two rights
are in collision, the nature of the two rights makes it
reasonable to favor the right to counsel . . . .”).
Thus, it follows that “[a] defendant can waive his Faretta
rights,” McKaskle v. Wiggins, 465 U.S. 168, 182 (1984), and
those rights may be more easily waived than the right to
counsel. See
Singleton, 107 F.3d at 1096; Williams v. Bartlett,
44 F.3d 95, 100 (2d Cir. 1994) (“Once asserted, . . . the right
to self-representation may be waived through conduct indicating
that one is vacillating on the issue or has abandoned one’s
request altogether.”); Dorman v. Wainwright,
798 F.2d 1358,
1365-66 (11th Cir. 1986) (“[U]nlike other constitutional rights,
the right to be one’s own counsel can easily be overlooked or
waived if a defendant does not properly invoke the right or
inadvertently waives it through some procedural misstep.”);
Brown v. Wainwright,
665 F.2d 607, 611 (5th Cir. 1982) (“A
waiver may be found if it reasonably appears to the court that
14
defendant has abandoned his initial request to represent
himself.”).
We find that Koon waived his right to self-representation
and thus the PCR court and the Supreme Court of South Carolina
did not decide contrary to, or unreasonably apply, Faretta and
McKaskle. 2 After his initial assertion of his Faretta rights,
Koon displayed equivocating, contradicting, and vacillating
behavior. He stated in a letter to the trial court that he
“may” represent himself, J.A. 70, 71, and noted his “possible
(pro se) representation.” J.A. 71 (emphasis added). Koon also
never stated while in front of the trial court that he wished to
proceed pro se, although he had multiple opportunities to do so.
Furthermore, in Koon’s letters to the court, he made
several references to “my attorney,” informing the court that
Slade “may supeano [sic] additional witnesses,” J.A. 73, that
the court send a copy of its response to himself and to his
attorney, and directing the court to contact “my atty. Mitch
Slade.” J.A. 76 (emphasis added). Clearly, Koon invited and
accepted the participation of Slade in his defense, and “[a]
2
Neither court cited Faretta or McKaskle. However, “to
avoid [the] pitfall of rendering decision[s] ‘contrary to’
federal law, [the] state court need not cite or even be aware of
relevant Supreme Court cases, ‘so long as neither the reasoning
nor the result of the state-court decision contradicts them.’”
Barbe v. McBride, 521 F.3d 443, 456 n. 19 (4th Cir. 2008)
(quoting Early v. Packer,
537 U.S. 3, 8 (2002)).
15
defendant’s invitation to counsel to participate in the trial
obliterates any claim that the participation in question
deprived the defendant of control over his own defense.”
McKaskle, 465 U.S. at 182. Thus, Koon’s “pro se efforts were
undermined primarily by his own, frequent changes of mind
regarding counsel’s role.”
Id.
Consequently, the PCR court’s and the Supreme Court of
South Carolina’s decisions were not contrary to, or an
unreasonable applicable of, Supreme Court precedent under
Faretta or McKaskle.
B. Ineffective Assistance of Counsel Claim
Koon argues that defense counsel’s failure to impeach
Sutherland with evidence that he had twice been convicted of
giving false statements to the police was deficient performance
under Strickland v. Washington, 466 U.S. 668 (1984), which
worked to his prejudice. Koon contends that “there is no
evidence that trial counsel’s decision not to impeach Mr.
Sutherland was part of any trial strategy,” Appellant’s Br. 25,
and Sutherland’s testimony was “central to the prosecution’s
case.” Appellee’s Br. 24 (quotation omitted).
The PCR court considered the issue and held that “[t]rial
counsel testified at the PCR evidentiary hearing that the most
beneficial information that he got out on cross examination of
16
Southerland [sic] was that he was a chronic drunk and that his
memory was not reliable. Trial counsel’s testimony concerning
his strategy with regard to Southerland [sic] was credible.”
J.A. 362. The court, citing Strickland, found that “the
Applicant failed to carry his burden to show that trial
counsel’s representation fell below the standard of professional
reasonableness for a criminal defense attorney in this regard.”
Id. Furthermore, the court held that “the Applicant also failed
to carry his burden of proof to show a reasonable probability
that the outcome of the trial would have been different but for
trial counsel’s alleged deficient representation.”
Id.
A petitioner asserting a claim for ineffective assistance
of counsel must satisfy two prongs. First, the petitioner “must
show that counsel’s performance was deficient.”
Strickland, 466
U.S. at 687. Counsel’s performance is deficient if “counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id.
Specifically, the petitioner must show that counsel’s
performance falls “below an objective standard of
reasonableness,” measured “under prevailing professional norms.”
Id. at 688. The defendant must also “overcome the presumption
that, under the circumstances, the challenged action might be
considered sound trial strategy.”
Id. at 689 (internal
quotations omitted). Ultimately, “[j]udicial scrutiny of
17
counsel’s performance must be highly deferential,” and “a court
must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Id.
Strickland’s second prong directs that “[a]n error by
counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment.”
Id. at 691. Thus, “the
defendant must show that the deficient performance prejudiced
the defense.”
Id. at 687. However, “[i]t is not enough for the
defendant to show that the errors had some conceivable effect on
the outcome of the proceeding.”
Id. at 693. Instead, “[t]he
defendant must show 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.
The PCR court’s conclusion that Koon failed to carry his
burden of showing that his counsel was ineffective was not
contrary to or an unreasonable application of Strickland. The
defense had the articulable strategy of showing that Sutherland
was a chronic drunk and thus his recollection of events was
unreliable. Pursuant to Strickland, it was not unreasonable for
the PCR court to find that counsel’s strategy was within “the
wide range of professionally competent assistance.”
Strickland,
466 U.S. at 690.
18
Moreover, even if defense counsel’s performance fell below
the objective standard of reasonableness, Koon did not show that
there was a reasonable probability that, but for the deficiency,
the result of his trial would have been different. Although
Sutherland’s testimony was beneficial to the Government’s case,
it was not crucial. Koon had the gun in his constructive
possession when he was arrested, and his fingerprints were found
on a ledger card in the probation office. In addition, officers
testified that an eyewitness reported that he saw a man armed
with a gun pounding on Sutherland’s door, which was presumably
Koon. Consequently, it was not unreasonable for the PCR court
to find that Koon did not carry his burden as to the second
Strickland prong.
C. Use of Suppressed Evidence
During cross-examination, the State questioned Koon about
the suppressed evidence, asking him whether he had seen the
stolen address book, walkie-talkies, or handcuffs. Koon
responded that he had not, or could not remember whether he had.
During questioning, defense counsel objected to the use of the
suppressed evidence. The trial court found that the evidence
was admissible for impeachment purposes, and found that Koon had
“waived his right to remain silent. Once he takes the stand
[the State is] entitled to ask him everything that he knows.”
19
J.A. 283. Koon raised the issue again on appeal, but the South
Carolina Court of Appeals did not reach the issue of whether the
trial court erred. Instead, that court found that “any error in
the trial judge’s ruling is harmless” because “Koon was not
prejudiced by the latitude afforded the State’s cross-
examination because nothing incriminating resulted from it.”
J.A. 302.
Koon argues that “[a]lthough a defendant may be impeached
with excluded evidence if he testifies about that evidence
during his direct testimony, the Government may not ‘smuggle in’
tainted evidence by raising it for the first time on cross-
examination.” Appellant’s Br. 36-37. Koon contends that this
error was not harmless, because “this case turned on the
credibility of the witnesses” and “the prosecution’s use of the
excluded evidence plainly damaged Mr. Koon’s credibility to the
jury.” Appellant’s Br. 41.
Assuming, but not deciding, that the trial court correctly
applied South Carolina Rule of Evidence 611(b), 3 the South
3
Rule 611(b) differs from the federal rule. Consistent
with the federal rule, the Supreme Court in United States v.
Havens held that a “defendant’s statements made in response to
proper cross-examination reasonably suggested by the defendant’s
direct examination are subject to otherwise proper impeachment
by the government, albeit by evidence that has been illegally
obtained and that is inadmissible on the government’s direct
case, or otherwise, as substantive evidence of guilt.” 446 U.S.
620, 627-28 (1980) (emphasis added). However, the South
(Continued)
20
Carolina Court of Appeals’ decision was not unreasonable in any
case when it found that error, if it existed, did not prejudice
Koon. Counsel never contradicted Koon’s assertions that he had
only seen the evidence in photographs or not at all, nor did
counsel point out that Koon had known the location of these
items after the robbery. Koon never admitted in front of the
jury that he possessed the items at any time or that he knew the
location of the items, and the State did not contradict him.
Koon only admitted that he had seen the probation officer’s
address book when he was in the office to report or in
photographs after he was taken into custody, and that he could
not remember whether he had seen the specific badges and
handcuffs.
Furthermore, a “harmless-error standard applies in
determining whether habeas relief must be granted because of
constitutional error of the trial type.” Brecht v. Abrahamson,
507 U.S. 619, 638 (1993). The applicable test requires a
showing that “the error ‘had a substantial and injurious effect
or influence in determining the jury’s verdict.’”
Id. at 637
(quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)).
Carolina Rule directs that “[a] witness may be cross-examined on
any matter relevant to any issue in the case, including
credibility.” SCRE 611(b).
21
This Court has found that, “[i]n applying Brecht’s harmless
error analysis, we must grant a habeas petition if we are in
‘grave doubt’ as to the harmlessness of the error. ‘‘Grave
doubt’ exists when, in light of the entire record, the matter is
so evenly balanced that the court feels itself in ‘virtual
equipose’ regarding the error’s harmlessness.’” Richmond v.
Polk, 375 F.3d 309, 335 (4th Cir. 2004) (quoting Fullwood v.
Lee,
290 F.3d 663, 679 (4th Cir. 2002)) (internal citations
omitted). For the reasons detailed above, we find that any
error, if it exists, was harmless.
IV.
For the foregoing reasons, we conclude that the district
court did not err in denying Koon’s habeas petition.
Accordingly, the judgment of the district court is
AFFIRMED.
22
